APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: XC97/02
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST CONVICTION
ROY DICKSON SMITH
HER MAJESTY'S ADVOCATE
Appellant: Jackson, Q.C., Niven-Smith; Drummond Miller
Respondent:Di Rollo, Q.C., A.D.; Crown Agent
19 January 2005 On 18 April 2001 the appellant was convicted of the murder of Brian Buchan at an address in Fraserburgh on 15 April 2000. According to the terms of the charge he repeatedly struck the deceased on the head and body and repeatedly stamped on his face and back.
The first ground of appeal The Crown case was that the deceased had been murdered by the appellant in the morning of Saturday 15 April 2000. The conviction of the appellant was critically dependent on the jury accepting this. In this ground of appeal it is maintained that, in view of the evidence of 26 defence witnesses and supporting documentary evidence, the verdict of the jury was perverse and one which no reasonable jury, properly directed, could have returned.  In order to consider this ground of appeal it is necessary to relate it to the evidence as a whole. The deceased was 33 years of age and had lived alone in the flat where he was murdered. He was unemployed, and was in receipt of income support and incapacity benefit at the time of his death. He gave little attention to hygiene or cleanliness of his flat. He drank to excess, was barred from public houses and shops in Fraserburgh, and was known to have collected some of his food out of a skip. He had the practice of walking round Fraserburgh. Evidence was given as to his personal appearance, to which we will refer later in this opinion. The appellant, who was also 33 years of age, lived a few miles outside Fraserburgh. On occasion he stayed in Fraserburgh with his girlfriend, whose child he had fathered.
Evidence relied on by the Crown There was evidence that on the morning of Friday 14 April the appellant told his girlfriend that he was going to see the deceased, but would come back in the evening. The appellant was a friend of the deceased and used to visit him two or three times a week. David Colton, who was a cousin of the deceased, visited him that day. The appellant was also present. All three of them were drinking in the sitting-room. At about 8 p.m. the appellant and Colton left the flat and went to a nearby public house; the deceased, who was barred from the premises, remained behind. Colton gave evidence that during the course of the evening he returned to the flat on two occasions, in order to see how the deceased was. On the second occasion, which was some time after 11 p.m., the appellant arrived. According to Colton, the appellant was acting like a "baited bear", and was annoyed with him for not speaking to him during the evening. A fight broke out, during which the appellant punched Colton on the face, causing his nose to bleed. Colton left the flat. There was evidence that he arrived at a police office around 12:30 to 1 a.m, when he reported that he had been assaulted but did not name his assailant. Colton said in evidence that when he left the flat the deceased and the appellant were there. The deceased was asleep, and not injured in any way.  One of the neighbouring tenants in the building gave evidence that around 11:30 p.m. on the Friday evening he had heard someone in the street shouting "let me in", and kicking at the front door and at the side gate. Another tenant gave evidence to waking and hearing a racket sometime after 10 p.m. He heard the sound of kicking on the front door and at the side gate. After he had gone to bed he heard someone trying to get into the deceased's flat. There was banging on the front and back doors of the property and the windows of the deceased's flat. He heard the voice of a man asking to be let in. The noise continued for 20 to 30 minutes. A girl who lived nearby gave evidence that she heard a noise in the street some time after 10 p.m. Someone was banging on the front door of the block, and a man shouted: "If you don't open the door, you are chicken. I will kill you". The disturbance lasted about 30 minutes.  Around 10:45 a.m. on the Saturday morning the appellant took a taxi from Fraserburgh to the house where he lived. His girlfriend gave evidence that during the afternoon he telephoned her and told her that on the Friday evening he had been drinking in a public house with David Colton, after which he had gone to a party at a village outside Fraserburgh, where he had spent the night. In the morning he had got a taxi home. He sounded very upset and told her that he was going to kill himself. After further conversations between them on the telephone his girlfriend was so concerned about him that she telephoned the police. Shortly after 9 p.m. on the Saturday evening police officers went to the appellant's house, where they found him to be subdued and depressed. He was sitting at a table with a large knife in front of him. He told the police officers that he was separated from his girlfriend. They left him with a friend, when they were satisfied it was safe to do so.  At about 1 p.m. on Thursday 20 April a police sergeant responded to a 999 call made by the appellant, after which he went to the deceased's flat where he met him and his girlfriend. The appellant informed him that he was a friend of the deceased and had a key to his flat. When he had entered the flat that morning he had discovered the deceased lying dead on the floor. The curtains of its windows were drawn. Later examination showed that a large pool of clotted, dried, separated and fluid serum and blood lay around the deceased's head. His shirt was extensively ripped, exposing a large part of his back. Immediately above his head there was a recent-looking depressed defect in the plasterboard. That defect was associated with smeared and splattered blood.  The appellant agreed to go to Fraserburgh police office so that he could give a witness statement. While he was sitting there with his girl friend he stated to a police constable that he had gone to visit the deceased that morning, and met two of the tenants in the street outside. They had told him that around 3 a.m. they had heard a lot of noise and loud music coming from the flat. The appellant also told the police constable that he had last seen the deceased on the previous Friday afternoon about 2 or 3 p.m. when he had called there on a routine visit. He mentioned that a cousin of the deceased had been staying with him over the previous two or three days.  Two of the tenants gave evidence that they had not seen or heard any sign of the deceased during the period from Saturday 15 April until Thursday 20 April. One of them gave evidence, however, of having heard two large thumps coming from the deceased's flat about 4 a.m. on the Thursday. During a search of the flat by police officers and forensic scientists various items of unopened mail were found. They included a DSS giro cheque and letter both dated Monday 17 April 2000, and another unopened letter of the same date. A DSS official gave evidence that the last time one of the deceased's giro cheques had been cashed was on 11 April. In practice the deceased cashed giro cheques within a day or two of their being issued. A post office worker gave evidence of having delivered other items, which were found amongst the unopened mail, on 17 April.  Traces of the appellant's DNA were found on certain of the cigarette ends found in an ashtray. His DNA was also detected on two glasses on a coffee table. One of the forensic scientists found that the pool of blood which was closest to the deceased's mouth was still wet and tacky. There was no central heating in the flat and the room temperature was 15° Celsius. He expressed the opinion that the blood had been there for at least two days, and that six to seven days was the upper limit for how long it could have been present. He also spoke to having discovered splashes and smears of blood on the floor and wall beside and above the deceased's head. These could have been caused by him falling in a pool of blood. Blood was also discovered in a hole in the plasterboard, which could have been made from a booted foot. He also gave evidence of having examined a pair of boots which had been taken from the appellant. Light staining was found on the inner aspect of the heel blocks of both boots, and light blood smearing on the inner aspects of the upper of the left boot. The DNA profile was the same as that of the deceased. One man in 85 million would be expected to have the same DNA profile as the deceased. The forensic scientist expressed the opinion that the appellant's boots had been in contact with objects or surfaces which were wet with blood. However, there was nothing in the appearance and distribution of the blood on the boots to suggest that such contact had been forcible, nor to indicate how recently the boots had become bloodstained.  Evidence was given by two Crown pathologists, Dr James Grieve and Dr Grant Stenhouse, that the body of the deceased showed various signs of injury and was uniformly cold to the touch. Rigor mortis was partially present. At the post mortem examination it was noted that there were a large number of injuries, some of them historic, and others having been sustained shortly before death. A total of 30 recent injuries were noted. It was concluded that the deceased had died as a result of a head injury occasioned by blunt force, which had produced extensive fracturing of the facial bones. The middle third of the skeleton of his face had become detached from the rest of the skull. Such injury could be caused by punching, kicking or stamping. Injuries to the back of the deceased suggested stamping and kicking with a shod foot. As regards the day when the death of the deceased had occurred, Dr Grieve stated as his opinion that at least a couple of days had elapsed between the time of death and the time when he had first seen the body on 20 April. He also stated, however, that the lapse of time could have been a lot longer. It was possible that his body had been lying from the early hours of the previous Saturday morning. He saw no reason why that could not have happened, particularly if the weather had been cold. It was elicited by counsel for the appellant that immediately after the post mortem examination Dr Grieve had been unable to give the police any hard and fast opinion as to the date and time of death. Dr Sadler, who gave evidence for the defence, provided a report in which he stated that the estimation of the post mortem interval presented a difficult forensic problem, which was made unreliable by unpredictable fluctuations in environmental conditions. In his opinion it was likely that death had occurred two to three days before the body came to the notice of the police. In cross-examination he indicated that it was possible that the death had occurred on the previous Saturday. However, that was stretching the bounds of possibility. To enable the body to remain as fresh as it was, the temperature in the house would have had to be equivalent to refrigeration conditions.  The appellant gave a second statement to the police on 5 May 2000, in which he described how he arrived in Fraserburgh about 12:30 p.m. on 20 April, and met the tenants. They told him that they intended to call the police. He was asked to pass that on to the deceased. He entered the deceased's flat and found mail behind the front door. He went into the sitting room, intending to put his jacket on a settee, and walked between the settee and a coffee table. When he saw the body of the deceased he touched the left side of his neck and found that the body was cold. He then retraced his steps, left the flat and telephoned the police. On 19 May 2000 the appellant was detained by the police and taken to a police office where he was interviewed under caution. In the course of the interview he indicated that he had been in the deceased's flat during the afternoon of Friday 14 April. He had left the flat as it was getting dark, and had gone to two public houses. He had not returned to the flat but had walked home. Subsequently, in an interview under caution he stated that he had met his girlfriend on the afternoon of Tuesday 18 April, when she told him that a party had been going on at the deceased's flat throughout the previous weekend. When it was put to him that the girl friend had denied giving him such information, he indicated that he must have misunderstood. Later in the day he was cautioned and charged with the murder of the deceased, to which he replied that he was not guilty. He was then detained in custody.  On the following day at Peterhead police office the appellant asked to see police officers, indicating that he wanted them to restart the tape recording. He explained to them that he had been in the deceased's flat on Saturday 15 April, and that when he had woken up that day the deceased was dead. He then made a voluntary statement to two other officers, which he signed. It was to the effect that he had been drinking with the deceased on Friday during the day. Thereafter he had gone to a public house with a cousin of the deceased. He explained that the deceased had not wanted to come because he had been banned. He recalled speaking to a few people at the public house. He went on to say:
"Next thing I remember is Saturday morning. Brian lying on the floor date and I didnae ken fit to di. I git a taxi home. I think it was about half-past seven or something in the morning and I just didnae ken fit to di after that. I wisna sure if it was me that did it or nae. Cause a could'nae mind. I didna mean to kill him ye ken. I just di stupid things like this when I'm drunk. That's awe a kin tell ye about fit happened that Friday. That's it ain't it"
The tape recording of this statement was played in court. There was no suggestion that there was any inaccuracy in the recording, or that the statement had been unfairly obtained or was in any respect unreliable.
Evidence relied on by the defence The defence relied on the evidence given by a number of witnesses to the effect that they had seen the deceased alive in Fraserburgh at various times after the Saturday morning. Following the discovery of the body of the deceased the police had invited members the public to report any sighting of him from Friday 14 April. In his report the trial judge states that there was some uncertainty as to when the appeal had first been made, and as to the precise terms in which the appeal had been carried by the media. However, the jury would have been entitled to hold that it was first made within a week to 10 days of 20 April and sometime before 19 May, when the appellant was detained. In the event over 100 members of the public came forward and gave statements to the police as having seen him between 14 and 20 April.  The witnesses relied on by the defence comprised one Crown witness, Helen Aitchison, and 27 defence witnesses (not 26 as stated in the ground of appeal). Six of these witnesses gave evidence of seeing him on the Saturday afternoon or evening, one on Sunday 16 April, 12 on the morning or afternoon of Monday 17 April, and six (including Helen Aitchison) on Tuesday 18 April. Two further witnesses were uncertain as to the day on which they saw the deceased: one said the Monday or the Tuesday; the other said the Monday or the previous Friday. Lastly, the postmistress, Gladys Walker, who gave evidence about the giro cheques, said that she had last seen the deceased on a Thursday and Friday before his body was discovered, but was uncertain as to which Thursday and Friday to which she was referring. Some of the witnesses gave evidence that they had responded to the appeal; others stated that they had been approached by the police in the course of routine inquiries. The appellant did not give evidence.  The witnesses were men and women of a range of ages and occupations. A number worked in or around the harbour of Fraserburgh; others worked in the town. In each case the witness gave clear and unqualified evidence as to identifying the deceased; and, subject to the exceptions to which we have referred above, as to the day on which he or she saw him. In each case the witness spoke to seeing the deceased only for a very short time, in some instances for only a matter of seconds. In no case was there any conversation between the deceased and any of them. It is clear from the transcript of their evidence, to which we were referred, that the deceased was well-known by sight to the majority of them. One (Diane Stephen) was a cousin of the deceased. Three (Christine McDonnel, Alan Bruce and William Mutch) had known him all his life. One (Susannah Brown) said she had known him for 20 years. The evidence as to the deceased's appearance was also of significance. He was extremely thin: at the time of his death he weighed 160lbs. He had dark shoulder length hair, and the top of his head was bald. It appears that he had an unattractive face with a large mouth. He seemed unwell. Several of the witnesses described him as being unusual or very distinctive in appearance. One (Elizabeth Underhill) said: "He had the sort of face that once you seen you would never forget". Another (Stuart Noble) said: "His face wisnae normal like, deformed". Among the witnesses were two ladies who worked in off-licence premises in Fraserburgh. They gave evidence that the deceased, who had been banned from the premises for shoplifting three years before, had attempted to enter them on the Monday afternoon, but one of them, the manageress, shouted at him to leave, which he did. Reference to a staffing rota showed that they were both on duty at that time on the Monday, which was the day on which they took deliveries.  In his report the trial judge states that all the witnesses were thoroughly cross-examined by the Advocate depute. In many instances the cross-examination lasted longer than the examination in chief. He did not challenge their credibility, but challenged their reliability by questioning whether they might have been mistaken as to when they had seen the deceased or whether they could have confused him with someone else. In his address to the jury the Advocate depute commented on the detail of the evidence of each of the witnesses and put forward reasons why their evidence might not be reliable, inviting the jury to reject the evidence and accept the evidence relied upon by the Crown as to the time by which the deceased had died. The trial judge directed the jury that if they accepted the evidence of any one or more of the witnesses as to the deceased being seen walking around Fraserburgh at a time later than lunch time on Saturday 15 April, they would be bound to acquit. He also directed them that if the evidence of any one or more of the witnesses gave rise to a reasonable doubt as to the guilt of the appellant they would be bound to acquit him.
Submissions For the appellant, Mr Jackson emphasised that the evidence of the pathologists did not assist the Crown case. In view of his limited intelligence, it was unwise to read too much in to the voluntary statement of the appellant. In the present case the sheer weight of the evidence relied upon by the defence should satisfy the court that no reasonable jury could have convicted. He pointed out that some of the witnesses had known the appellant well, and some could explain why they gave positive evidence as to the date on which they had seen him. There was no suggestion that any of the witnesses had been dishonest. It had not been shown that any occasion to which any of them had spoken could not have occurred. There was no internal contradiction within the evidence of the witnesses. It was highly significant that in a small town such as Fraserburgh there was no one else who could have been the person whom these witnesses had seen.  The Advocate depute submitted that there was no inherent weakness in the Crown case, which was founded on a strong body of evidence. The finding of the unopened mail was an important matter. The voluntary statement of the appellant contained a confession, although it was not unequivocal. The evidence relating to that statement had not been challenged, and no explanation had been given for its contents. As regards the evidence founded on by the defence, the Advocate depute pointed out that no witness had given evidence of making any close contact with the deceased. It should also be borne in mind that the police had shown a photograph of the deceased to a number of those who had responded to the appeal. It was possible that that had fixed an image of the deceased's appearance in their minds. There had been some inaccuracy in their accounts of the clothing which he wore, and some discussion between witnesses. As the trial judge stated in his report, some who responded to the appeal had given statements that they had seen the deceased at a time when on any view he must have been dead.
Discussion There is no doubt that in cumulo the defence evidence presented a formidable case that the deceased could not have been murdered at the time contended for by the Crown. In addition to the considerable number of witnesses who saw the deceased apparently alive there was the distinctive appearance of the deceased which assisted identification. Some of the evidence, for example, given by the members of the staff at the off licence premises, was particularly telling. There was no inherent contradiction or other defect in this body of evidence. Apart from the effect of the evidence relied on by the Crown there was no other evidence which could undermine the accounts given by these witnesses.  On the other hand, there was strong evidence pointing to the appellant's guilt. There was evidence as to his presence, together with that of the deceased, in the latter's flat on the Friday night; the bellicose mood of the appellant on the Friday night; his strange behaviour in the following week; the lack of any suggestion that any third party was involved; the unopened mail, including the giro cheque; the fact that no tenant spoke to seeing him between the Friday night and the following Thursday when his body was discovered; the presence of the deceased's blood on the appellant's boots; and his voluntary statement to the police which was readily capable of being construed as incriminating him. In the light of the evidence given by the pathologists it was possible that the deceased had died on the Saturday morning.  This is not a case in which there was any obvious inherent weakness in the evidence relied on by the Crown. The jury were faced with a straight conflict between the bodies of evidence relied on by the Crown and the defence respectively. Can it be said that no reasonable jury could have resolved that conflict in favour of deciding that the Crown case had been proved beyond reasonable doubt? Although Mr Jackson sought to distinguish King v H.M. Advocate 1999 S.C.C.R. 330, we consider that it was in essence concerned with a similar situation. In that case the Crown relied on a number of admissions by the appellant that he had attacked the deceased in the early hours of a Saturday morning, and in a manner which was consistent with the injuries which he sustained. There was evidence from neighbours of a quarrel and disturbance in the deceased's flat at that time, together with evidence that the injuries sustained by the deceased were such that he could not have survived for more than a short time and could not have left the flat. As against this the evidence given by four Crown witnesses was that they had seen the deceased in the street later on the Saturday or on the following day. The Advocate depute did not directly challenge the credibility or reliability of the evidence given by those witnesses. At page 342, delivering the opinion of the court, the Lord Justice General (Rodger) said:
" ... it is by no means unusual to find that there is a body of evidence in a case which is quite inconsistent with the accused's guilt. Evidence supporting an alibi defence is necessarily of that nature and, while it is often possible for the Crown to undermine alibi witnesses on the ground perhaps that they are partial or untrustworthy, that is by no means always the case. In such a situation juries may none the less be satisfied of the accused's guilt beyond reasonable doubt on the basis of the Crown evidence and come to the view that they must accordingly reject the alibi evidence as wrong. The jury must consider all the evidence but, having done that, they can reasonably reject alibi evidence precisely because it is inconsistent with the Crown evidence which they have decided to accept.
The most unusual feature of this case is that it is not possible to suggest any reason why the Saturday witnesses' evidence should be regarded as wrong, except that it is contradictory of the Crown evidence. In that situation, as in any other, a reasonable jury would require to consider all the relevant evidence in reaching their verdict. Having done so, however, the reasonable jury would be entitled to accept the evidence pointing to the guilt of the accused and to reject the other evidence, precisely because it could not be correct if, as the Crown evidence showed, the appellant killed the deceased early on Saturday morning".
The second ground of appeal In this ground of appeal it is maintained that there was inadequate preparation and conduct of the defence case by the appellant's senior counsel, in respect that there was a failure to obtain, or to attempt to obtain, for use in the trial copies of the police statements made by the defence witnesses to whom we have referred.  The Crown provided the defence with details as to the witnesses who claimed to have seen the deceased after the morning of Saturday 15 April. The defence obtained precognitions of these witnesses and cited those whom they considered to be able to give relevant evidence. The solicitors for the appellant wrote to the procurator fiscal at Peterhead asking for copies of the witness statements, apparently in order to investigate "why the decision was taken to disregard their evidence". By letter dated 29 December 2000 the procurator fiscal replied stating that Crown counsel had instructed that this request be refused, on the basis that the defence had already precognosced the witnesses who apparently had seen the deceased, and the fact that the defence had not pointed to any potential prejudice. The defence did not thereafter press the request which they had made.  Senior counsel who represented the appellant at the trial responded to an invitation to comment on this ground of appeal. In his note he pointed out that precognitions had been taken from the witnesses, in which they stated that they had given similar factual accounts to the police when they were interviewed closer to the event. Thus prior to the trial he understood that all the information which he had on precognition accorded with that given to the police. A large number of the defence witnesses were called and gave evidence in line with their precognitions. The Crown put parts of prior statements to one or two witnesses where they departed from them on matters of detail, but no witness was shaken in his or her evidence of seeing the deceased alive at the time spoken to. He went on to state that he did not request the Crown to produce the statements.
"I did not want the jury to be sidetracked into repeated arguments over detail when the broad thrust of the evidence was favourable to the defence. Had it been necessary I would have asked for production of any statement used in this manner by the Crown".
Submissions For the appellant Mr Jackson submitted, under reference to McLeod v H. M. Advocate 1998 J.C.67, that by giving correct reasons the defence could have obtained the police statements. The letter of 29 December was "half-hearted". If the statements had been available, this would have had a real value to the defence. Mr Jackson referred to the terms of the police statements, which had been produced by the Crown in connection with the appeal. Mr Jackson submitted that these statements would have fortified the reliability of the witnesses' evidence. It could have been shown that they had given statements to the same effect within a few days of the discovery of the deceased's body. He pointed out that the trial judge had remarked in his report that there was no evidence as to the date on which defence witnesses had given statements to the police. Mr Jackson said that it would have been open to the witness to adopt the statement as his or her evidence (section 260 of the Criminal Procedure (Scotland) Act 1995). In any event if it was suggested to a witness that his or her recollection was unreliable, counsel for the appellant could have referred to the police statements in re-examination. More generally it was important for counsel to know the contents of the police statements as part of the background for taking the evidence of the witnesses at the trial. It was a very important tool. Mr Jackson accepted that he could not show that the production of the police statements would have led to a different result, but the production of these statements was relevant and important for the proper conduct of the defence. Since counsel who represented the appellant at the trial had never seen the police statements, there was nothing in his comment about the jury being sidetracked.  The Advocate depute submitted that it was understandable that counsel for the appellant did not advise that the police statements should be obtained. Making a comparison in court between the evidence of witnesses and what they had said to the police could well have detracted from the whole thrust of the defence, which was that they were both credible and reliable. Further it should not be assumed that police statements would be bound to be accurate. There was no suggestion that the defence did not have clear precognitions of the witnesses, and the Crown was entitled to assume that they had been properly precognosced. If the defence had asked for the police statements for a proper reason, such as some problem which could not be covered by precognition, the Crown would have provided them. The Advocate depute went on to submit that in any event the absence of the police statements had not affected the presentation of the defence in a critical way. Subject to one exception, there was no suggestion by the Crown at the trial that the evidence of the witnesses was not to the same effect as their statements, or that their evidence should be rejected by reason of the passage of time since April 2000. Counsel for the appellant would have been entitled to say to the jury that the witnesses had been saying the same thing all along.  We are not persuaded that this ground of appeal is well founded. There is no doubt that the appellant's defence was presented to the jury, in the form of evidence from numerous witnesses to the effect that the deceased was alive at various times after the period of time in which the Crown maintained that he had been murdered. In our view it was not unreasonable for counsel for the appellant not to press for the obtaining of the police statements. No doubt it is possible to argue that it would have been a benefit for counsel to have the police statements available in order to back up or support the evidence given by the witnesses at the trial in one or more of the ways suggested by Mr Jackson. On the other hand, there is considerable force in the point that in the circumstances of the present case to introduce a comparison with the witness statements would have detracted from the value of the evidence which they were able to give. We are satisfied in any event that the absence of the police statements did not prejudice the presentation of the defence in any material respect. Reference to the transcript shows that the witnesses gave clear evidence as to the circumstances in which they said that they saw the deceased after the morning of Saturday 15 April. The great majority of them were definite as to the date on which they saw him. There was no suggestion that in these respects there was any significant difference between their evidence and their police statements.  The appellant's appeal against conviction is accordingly refused.