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Cite as: 2005 SLT 375, [2005] HCJAC 13, [2005] ScotHC HCJAC_13, (2005) SLT 375

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Kidd v. Her Majesty's Advocate [2005] ScotHC HCJAC_13 (17 February 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lady Cosgrove Lord Philip	[2005HCJAC13] Appeal No: XM1/02 OPINION OF THE COURT delivered by LORD KIRKWOOD In Referral by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the cases of STEWART ANDERSON KIDD Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Boag Thomson, Q.C., McLaughlin; Eileen Dommer & Co., Dundee

Respondent: R. Anthony, Q.C., A.D.; Crown Agent

17 February 2005

[1] In June 1996 the appellant and his co-accused, Jamie Alan Green, appeared at the High Court in Edinburgh facing (1) a charge of breach of the peace and (2) a charge of murder. The murder charge alleged that on 2 March 1996 at the Drumgeith Bar, Drumgeith Road, Dundee they assaulted Thomas Andrew Blair, punched and kicked him on the head and body, stabbed him repeatedly on the body with a knife and murdered him. The charge of breach of the peace was eventually withdrawn by the Crown and on that charge both of the accused were acquitted. However, on 3 July 1996 the jury, by a majority, found the appellant and Green guilty of culpable homicide. The appellant was sentenced to seven years imprisonment and that sentence has already been served.

[2] The appellant lodged a Note of Appeal against conviction alleging misdirections by the trial judge, but in November 1999 those grounds of appeal were rejected by the appeal court. Earlier in the proceedings the court had allowed additional grounds of appeal against conviction to be lodged on behalf of the appellant. The additional grounds alleged that a miscarriage of justice had occurred in respect of the existence and significance of additional evidence in terms of section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995. Affidavits were lodged in support of the additional grounds of appeal and the appeal court heard evidence from Green and two other witnesses. In the course of his evidence Green, who had not given evidence at the trial, stated that he had stabbed the deceased in the back with a knife three times, and that he had been solely responsible for the stab wounds and the death of the deceased. However, the appeal was refused, and the proceedings are reported as Kidd v. H.M. Advocate 2000 J.C. 509. More recently the Scottish Criminal Cases Review Commission, having considered an application by the appellant for review of his conviction, referred his case to this court in terms of section 194B of the 1995 Act. The court, following receipt of the reference, directed the appellant to lodge grounds of appeal. Grounds of appeal were lodged and, in so far as they were argued before us, they largely reflected the reasons for referral given by the Commission. A devolution minute was also lodged but it was withdrawn by counsel for the appellant in the course of the hearing.

[3] On Saturday 2 March 1996 the deceased, Thomas Andrew Blair, was attending a wedding reception and party at the Drumgeith Bar after the wedding of his sister Pamela to Richard Carlyle. That day a young man, Craig Stuart, was assaulted in the public house by other youths, and certain of his possessions were taken from him. When news of this reached some of his friends and relations, a number of young men set out for the public house. Thereafter fighting ensued in the public house and, shortly afterwards, outside. In the course of the incident which took place outside the premises the deceased was fatally stabbed. He died as a result of sustaining three deep stab wounds in his back. The most serious of these wounds was on the right side of the upper back. The other two were on the right flank, and on the lower back above the left buttock. The latter two wounds would not have caused death in the absence of the first. According to evidence given by a pathologist, all of the wounds could have been caused by a knife which was Crown production label 107, but any of them could also have been caused by a similar knife.

[4] There was ample evidence at the trial that Green had stabbed the deceased twice, if not three times. This evidence consisted of the eye-witness accounts given by Pamela and Richard Carlyle, together with evidence that Green had blood on his hands and clothing, that he was seen looking in undergrowth near where label 107 was found, and that he had made certain admissions.

[5] As the Commission observed (in paragraph 16), the Crown's principal position in seeking to convict the appellant of murder was to invite the jury to accept that the appellant had struck the deceased a penetrative blow with a knife. The Crown case against the appellant depended entirely on eye-witness testimony. There was no forensic evidence to link the appellant to the deceased nor to link him with any weapon allegedly used in the assault on the deceased. Evidence of an actual assault by the appellant on the deceased came from only two sources, namely the eye-witness testimony of Richard Carlyle and Pamela Carlyle, the bride and groom. The evidence which Richard and Pamela Carlyle gave at the trial in relation to the assault on the deceased was broadly to the following effect.

[6] Richard Carlyle said in evidence that it was "just like a mad battlefield" with people fighting outside the premises. He came out when the deceased was standing on his own. He went on:

"Two boys came from behind Tommy's back and I seen them plunging him twice or thrice ... I seen one of them with a knife in their hand and one with something else in their hand that I couldn't see quite clearly ... I seen the first one (indicating the appellant) on his right-hand side go for a plunge (a phrase which was clarified in evidence as meaning making a stabbing motion) and he took off a matter of seconds and the other one (indicating Green) to Tommy's left-hand side twice, maybe three times and Tommy fell towards him".

He also said that the appellant was in front since he ran first. The appellant had turned away before Green did anything. What the appellant had in his hand was "something shiny". It could have been a metal pole. "He plunged Tommy first and took off". However, he conceded that it could have been a punch, and that the appellant could have missed the deceased's back or merely made a "gesture". He said that he had identified the appellant at an identification parade. He added that the appellant came back towards the scene with a stick.

[7] Pamela Carlyle gave evidence that as the deceased was holding back people from the public house, the two accused ran up behind him

"One ran to Tommy's back. It happened in a matter of seconds. One got Tommy's back, the blond one got Tommy's back, run up with the knife and I didn't see him. It was like a punch, and then the other one - just a matter of a second, stabbed Tommy twice on the left-hand side".

When referring to the "blond one" she indicated the appellant. In regard to him she also said: "Yes. It was like he punched Tommy ... so I just seen his arm you know, like a punch". She said that the two men had knives in their hands when they came running up. The appellant definitely had a knife in his hand. "I seen him like a punch to my brother's back, and I seen the dark haired one (Green) stab my brother". She agreed, however, that she could not tell whether the "punch" had landed. Green could have stuck his knife into her brother three times. Green struck him within seconds of the appellant's "punch". He stabbed him just as the appellant went to move from him. She had picked out the appellant at an identification parade.

[8] Norman Blair, the father of the deceased, said that he saw the two accused outside the premises. Green was screaming: "I have done Tommy" repeatedly with his hands above his head. The appellant, who was standing slightly behind him, was also making the same gesture.

[9] Audrey Rice stated that the deceased put the two accused out of the function suite in the public house. Thereafter she saw three or four people around the deceased. The two accused were on his left-hand side just punching and kicking him. She did not see anything in their hands. She stated that the appellant was trying to go away, so she went after him. She took hold of him and then hit him on the head with a shoe. She agreed that at the time she was under the influence of alcohol.

[10] The appellant gave evidence that he and Craig Stuart had returned to the public house, followed by a group of young people who had not included Green. He (the appellant) was carrying a wooden mop handle about 2 feet long. He and Craig Stuart were going to recover some chains which had been taken from Craig Stuart. However, as they entered the front door of the public house, a crowd came bursting out of the lounge and he was punched and knocked down in the process. He then ran away. He had earlier thrown away the stick which he had been carrying. However, he then picked up a pick-axe handle, which he found propped against a wall, but threw it away also when police cars arrived. At one point someone came running towards him and tried to punch him. At that stage he ran back towards the bridge. He had never seen the knife, label 107, or joined in any fight. At no point had a woman taken hold of him or hit him with a shoe. He himself had not hit anybody. He told the police that blood on his clothes had come from Craig Stuart. He stated that witnesses who had identified him in the course of the trial, and in particular those who had identified him as being associated with Green, were simply mistaken. Green did not give evidence.

[11] In the course of his charge the trial judge directed the jury that, if they were to bring in a verdict of guilty on the basis of concert, the verdict could not be one of murder but could at worst only be a verdict of culpable homicide. He gave that direction on the ground that there was no evidence from which the jury could properly infer that either accused knew, or must have known, that the other was going to assault the deceased in a murderous way. The verdict which the jury delivered appears to indicate that they considered that the appellant had been acting in concert with Green.

[12] As part of the Commission's investigations, Crown Office provided to the Commission copies of the police statements and the Crown precognitions of the principal Crown witnesses. It is common ground that these statements and precognitions were never disclosed to those representing the appellant prior to, or in the course of, the trial.

[13] Richard Carlyle and Pamela Carlyle had each given six statements to the police and one precognition to the procurator fiscal. Norman Blair had given three statements to the police and one precognition to the procurator fiscal. Audrey Rice had given five statements to the police and one precognition to the procurator fiscal. We were given copies of all these police statements and precognitions, and they are summarised on pages 10 to 20 of the Commission's Report. It was observed by the Commission that the respective positions of the Crown witnesses considerably vacillated between the positions they adopted prior to trial, and when giving evidence at the trial, regarding inter alia (1) who was responsible for the stabbing; (2) how many people were responsible for the stabbing; (3) the manner in which the stabbing was carried out, and (4) regarding their own actions before and after the stabbing. The Commission were of the view that the material contained in the police statements and in the Crown precognitions was of such a character as would tend to cast doubt on the conviction of the appellant and revealed such a degree of contradiction and inconsistency that they should have been disclosed to those representing the appellant.

[14] Counsel for the appellant, in relation to the extent of the duty of disclosure by the Crown, was content to adopt the proposition set out by the Commission (at paragraph 133) namely, that the Crown has a duty at any time to disclose to the defence information in its possession which would tend to exculpate the accused, and this duty extends to information that has an indirect bearing on the guilt or innocence of the accused, such as information tending to undermine the credibility of a Crown witness (McLeod v. H.M. Advocate (No. 2) 1998 JC 67 and Maan, Petitioner 2001 S.C.C.R. 172).

[15] The advocate depute, under reference to McLeod, supra, and Holland v. H.M. Advocate (No. 2) 2004 S.C.C.R. 452, accepted that the Crown has an obligation to disclose information which supports the defence case. That duty of disclosure has for some time been set out in the Book of Regulations for the Crown Office and Procurator Fiscal Service. The duty extended to information that supported any known stateable defence or undermined the Crown case. There had been no change of policy since the case of McLeod. The Crown accepted (1) that the duty of disclosure existed prior to the trial in relation to an indicated line of defence (McLeod, supra, per Lord Hamilton at page 83A-B) and (2) that the duty related to such evidence as might exculpate the accused or in the mind of the jury cast a reasonable doubt on the Crown case. Further, the duty of disclosure was a continuing one which existed pre-trial and throughout the leading of evidence by the Crown. If, in the course of leading evidence, it became apparent that the Crown had information which might exculpate the accused, or undermine the Crown case, then the Crown had a duty to disclose that to the defence.

[16] Having regard to the submissions which were made to us and the particular circumstances of this case, it became apparent during the course of the hearing that there was no material dispute between the parties as to the nature and extent of the Crown duty of disclosure.

Submissions of the parties
[17] Counsel for the appellant did not suggest that the Crown had had a duty to disclose the precognitions of any of the witnesses who were called by the Crown, but he submitted that, in the particular circumstances of this case, the Crown had been under a duty to disclose to the defence the statements which had been made to the police by Richard Carlyle, Pamela Carlyle, Norman Blair and Audrey Rice. At the trial the defence position had been that the witnesses who had identified the appellant as one of the assailants had been mistaken. Counsel went over the evidence which each of these witnesses had given at the trial, and the contents of the police statements which had been made, and submitted, as the Commission had observed in paragraph 135 of their Report, that the respective positions of the witnesses had vacillated considerably between the position they had adopted prior to trial, and when giving evidence at the trial, on a number of material matters. The various discrepancies were set out by the Commission in paragraphs 136-147 of their Report. Counsel submitted that there had been a wide range of discrepancies which had gone to the heart of the Crown case. The advocate depute must have been aware that the information in the police statements was contradictory and had differed in significant respects from the evidence which had been given by the witnesses. The Crown had had a duty to disclose the police statements prior to the commencement of the trial and, in any event, when the evidence of each of the witnesses in question was being led. The discrepancies had been such as to undermine the credibility of the main Crown witnesses, particularly the evidence of Richard Carlyle and Pamela Carlyle. The fact that the Crown had withheld the police statements from the defence had had the consequence that the appellant had not received a fair trial, and there had accordingly been a miscarriage of justice. In the circumstances the appeal should be allowed and the conviction quashed.

[18] In reply, the advocate depute submitted that whether a duty of disclosure existed had to depend on the facts of each individual case. The fact that there were differences between the evidence given by a witness in the course of a trial, and statements to the police which had been made before the trial, did not automatically mean that the Crown had a duty to disclose the police statements. The court had to adopt a realistic approach and the differences had to be of considerable significance in the context of the evidence as a whole before such a duty would arise. In the present case the advocate depute accepted that the police statements which had been made by Pamela Carlyle should have been disclosed to the defence, but submitted that, even with the benefit of hindsight, the Crown had had no duty to disclose the statements which Richard Carlyle, Norman Blair and Audrey Rice had made to the police because the discrepancies had not been of sufficient materiality.

[19] While the Crown had conceded that the statements which Pamela Carlyle had made to the police should have been disclosed to the defence, the court would still have to be satisfied that the failure to disclose the statements had resulted in a miscarriage of justice. In that connection the court could not shut its eyes to the other evidence in the case, particularly the evidence given by Richard Carlyle. Further, the police statement made by Pamela Carlyle which had differed to the greatest extent from the evidence which she gave (namely, the statement made on 8 March 1996) had been made at a time when, according to the police, she had appeared to be under the influence of medication or a controlled substance. The advocate depute submitted that the failure to disclose the statements which Pamela Carlyle had made to the police had not had the effect of denying the appellant a fair trial and had not resulted in a miscarriage of justice.

Decision
[20] The issues which have been raised in this case are whether the discrepancies between the statements which Richard Carlyle, Pamela Carlyle, Norman Blair and Audrey Rice made to the police prior to the trial, and the evidence which each of them gave at the trial, were of such significance as to give rise to a duty of disclosure on the part of the Crown and, if so, whether the failure to disclose police statements resulted in a miscarriage of justice.

[21] We have already summarised the evidence which each of those witnesses gave at the trial, and the statements which were given to the police are set out in the Commission's Report. The Crown conceded that there had been a duty of disclosure, and a failure to disclose, in the case of Pamela Carlyle's police statements, but submitted that that failure had not resulted in a miscarriage of justice. In the case of the other three witnesses, the advocate depute submitted that a duty of disclosure had not arisen.

[22] We propose to deal first with the statements which Pamela Carlyle made to the police. The deceased had sustained three stab wounds and, as the Commission observed, the Crown case against the appellant depended entirely on eye-witness testimony. There was no forensic evidence linking him to the deceased or to any weapon allegedly used in the assault. Further, evidence of an actual assault by the appellant on the deceased came from only two sources, namely the eye-witness testimony of Richard Carlyle and Pamela Carlyle. Put shortly, Richard Carlyle gave evidence that two men had run towards the deceased, that they had arrived at him at about the same time, that the appellant had something shiny in his hand, and that he went "for a plunge", although it might have been a gesture. Mr. Carlyle was sure that Green had a knife and that he had stabbed the deceased two or maybe three times. Pamela Carlyle gave evidence that she saw two men, both of whom had knives in their hands, approaching the deceased. The man whom she identified as the appellant reached the deceased just before Green and made a punching motion at the deceased, but she could not say that it had landed. She saw Green stab the deceased twice, but it could have been three times. In her first statement to the police (on 3 March 1996) she stated that the appellant had produced a large knife from the rear of his jeans and had stabbed the deceased in the back. There was another man present who also had a weapon and was waving it. She did not say that he had been involved in the attack on the deceased. In her second statement (on 4 March 1996) she stated that the appellant had thrust the knife, she thought, twice into the deceased's side and once into his back and the deceased had fallen to the ground. In her third statement (on 8 March 1996) she said that she had got over her grief a bit more and was able to see things more clearly. Although she had said that she saw the blond-haired man (whom she identified as the appellant) with a knife stab the deceased, she now remembered that a second man with a knife was with the appellant. She could now remember that it was not the appellant who stabbed the deceased. Rather, it was the second man whom she did not know but who had a stocky build. He had a knife in his right hand, and he had run behind the deceased. The appellant was also behind the deceased but only for seconds before he ran away. Seconds later the stocky man (whom she later identified as Green) stabbed the deceased twice in the left side and once in the lower centre part of his back. The deceased collapsed and the stocky man ran away still holding the knife. She said that she was now sure that she had told the truth. At the end of the statement there was a police note to the effect that the witness appeared to be under the influence of medication/controlled substance. In her fifth statement (on 20 March 1996) she stated that she saw Green stabbing the deceased twice. She said that she did not see what the appellant did. He was just behind the deceased for seconds and then he ran off.

[23] It is, in our opinion, clear that there were material contradictions and inconsistencies between the evidence given by Pamela Carlyle and the statements which she had made to the police prior to the trial. Bearing in mind the fact that the Crown relied on the evidence of Pamela Carlyle, one of the two essential eye-witnesses, as being credible and reliable, we are of the opinion that disclosure of the statements which she had made to the police would have been likely to have been of real importance to the defence by tending to undermine the credibility and reliability of the evidence which she had given and thereby casting reasonable doubt on the Crown case. In the circumstances we are satisfied that the failure to disclose her police statements resulted in a miscarriage of justice.

[24] In their Report the Commission highlighted the fact that in the case of each of the other three witnesses there were contradictions and inconsistencies between their evidence at the trial and statements which they had made to the police. However, in view of the conclusion which we have reached in relation to the non-disclosure of the police statements made by Pamela Carlyle, it is not necessary for us to decide whether the Crown had a duty to disclose the statements which the other witnesses had made to the police.

[25] On the whole matter we will allow the appeal and quash the conviction.