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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Macfadyen
Lord Penrose
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[2006] HCJA 41
Appeal No: XC787/03
OPINION OF THE LORD
JUSTICE CLERK
in
NOTE OF APPEAL AGAINST
CONVICTION
by
DANIEL McNEIL McGILL ADAM,
otherwise known as DANIEL McNEIL ADAMS
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For the appellant: Shead; Miss
Mitchell; Jim Friel
& Co, Glasgow
For the Crown: Mitchell,
AD; Crown Agent
30
May 2006
Introduction
[1] The
appellant was tried before Lady Paton and a jury at
Glasgow High Court in 2002 on inter alia
the following charges:
"(1) between
22 September 1999 and 26 September 1999, both dates inclusive, at Glasgow Green
at The Albert Bridge on the River Clyde, Glasgow, you did assault Thomas Morgan
... and push him into the River Clyde whereby said Thomas Morgan drowned and you
did murder him; ...
(3) having
committed the crime libelled in charge (1) hereof, namely murder, and knowing
or believing that John Houston Sinnamon ... would be a
witness in any trial at the High Court of Justiciary
against you in connection therewith, on 8 October 1999 at Glasgow Green at the
Weir at The Albert Bridge on the River Clyde, Glasgow, you did assault him and
push him into the River Clyde whereby said John Houston Sinnamon
drowned and you did murder him."
On charge (1) the appellant lodged
a special defence of alibi and a special defence of incrimination in which he
incriminated Alexander Smith. On charge
(3) he lodged a special defence of incrimination in which he incriminated
Bernadette Heron. On both charges he
lodged a special defence of insanity at the time of the offence.
The locus
[2] At
its north end, the Albert Bridge leads into
Saltmarket.
Immediately on the west side of Saltmarket is
Glasgow High Court, facing which on the north bank of the Clyde is Glasgow
Green. The Clyde Weir referred to in
charge (3) is immediately to the east of the bridge. The locus can be seen from the east side of
the bridge, from the riverside part of Glasgow Green and from the High Court.
[3] There
was evidence about the physical features of the locus from police officers and
eye-witnesses, and from scene of crime and aerial photographs. The trial judge reports that the jury were
well informed by a considerable body of evidence about the layout and physical
characteristics of the relevant locations.
[4] The
trial judge told the jury, probably on the first day, not to carry out any
individual investigations, such as inspections of the locus, and emphasised
that they should concentrate on the evidence led in court.
The case against the appellant
[5] The
appellant had a history of mental illness and alcoholism. He lived in the Bellgrove
Hotel, a hostel in the east end of Glasgow. One of the other residents was Thomas Morgan,
for whom the appellant had conceived an enmity.
On the date libelled in charge (1) he persuaded Morgan to join him for a
drinking session at the locus. He then
pushed Morgan into the river and watched as he drowned. A fellow drinker, Gerald Ellis, said that the
appellant and Morgan went down to the river bank, but only the appellant came
back. Morgan's body was found four days
later. Meanwhile, the appellant told his
community mental health worker what he had done and gave him a graphic
description of Morgan's drowning. Over
the next few days he confessed to two others, one of whom was a member of staff
of Loretto House, a nearby hostel.
[6] John
Sinnamon was a resident of Loretto
House. He said repeatedly that the
appellant had been responsible for Morgan's death. On the date libelled in charge (3) the
appellant persuaded Sinnamon to join him along with
Bernadette Heron and her boyfriend James Bonnar, both
hostel residents, for a drinking session at the locus. He repeatedly accused Sinnamon
of being a "grass" and threatened that he would not be at court to tell
anything. While the group were drinking
on the river bank beside the weir, Bernadette Heron went behind a stone pillar
to relieve herself. James Bonnar screened her with his jacket. The appellant was again heard to say that Sinnamon would not be at the High Court to give evidence
against him. He then pushed Sinnamon into the river.
Bernadette Heron and James Bonnar came round
from behind the pillar. They found the
appellant standing alone. He had watched
Sinnamon drown.
He told them that he had thrown Sinnamon
in. He threatened both of them not to
say anything. At Sinnamon's
funeral he told Bernadette Heron to keep quiet about what had happened.
[7] There
was plainly a sufficiency of evidence against the appellant on both
charges. Much of the trial was taken up
by the evidence of six psychiatrists led by the Crown as to the appellant's
mental state. The appellant did not give
evidence and no evidence was led on his behalf.
The trial judge's charge
[8] In the course of her
charge the trial judge said:
"Don't speculate about matters about which no
evidence has been led. You must base
your verdicts solely upon the evidence which you have heard in the course of
the trial, and remember, as counsel have already pointed out to you, it is your
memory of the evidence which counts."
The jury's deliberations and verdict
[9] The
jury were sent out on 1 June
2002. They were unable to
reach verdicts by the end of that day.
At 5.04 pm the trial
judge called them back. She said that if
they felt that it was likely that they would reach a verdict within the next
hour or so, they should return to the jury room and continue their
deliberations. She then said
"On the other hand, if you now feel that you would
probably require longer than about an hour in order to arrive at your verdict,
I would propose that you should stop your deliberations either immediately or
within a very short period of time and proceed under the charge of Court
officials to a hotel where overnight accommodation is available for you, and
you would continue to be secluded, and tomorrow morning you would be brought
back here and you would then be asked to return to the jury room and continue
with your deliberations."
The jury returned at 5.46
pm. The trial judge said to
them
"Well, ladies and gentlemen, I understand that you
have indicated to my Clerk that you need some more time, so I suggest to you
that you stop your deliberations now, and arrangements have been made for
overnight accommodation. Now, you don't
have to continue your deliberations overnight.
In fact, I would advise you to forget about the case overnight until
tomorrow morning, when you will be brought back to Court, and my Clerk here
will assist you with the practical arrangements. So we will adjourn now and re-convene
tomorrow, but my Clerk will help you with all the arrangements. The Court will now adjourn.
The jury were accommodated
overnight in a hotel. On the following
morning when the clerk called the diet, the trial judge said
" ... All that I do at this stage is invite you to
return to your jury room and consider the case again, continue your
deliberations. So that is what you do at
this stage. There is no pressure of time
again, ladies and gentlemen."
The jury thereafter convicted the appellant by a majority
of culpable homicide on both charges.
Although it is possible that the decision on each charge lay between conviction
and acquittal, it seems more likely that it lay between a conviction for murder
and a conviction for culpable homicide.
Mrs N's affidavit
[10] It later came to the notice of the appellant's solicitors that
one of the jurors, Mrs N, was concerned by certain aspects of the trial. According to Mrs N's affidavit, Bernadette
Heron and James Bonnar said in evidence that while
Bernadette Heron was relieving herself they could not see what happened. Mrs N refers to a discussion about this among
the jurors at some unspecified point during the trial. She describes the discussion as follows
"11 I
said that I did not really believe that this woman was the type of
person who would want to have somebody screening
her, she would have just relieved herself. Round about was all bushes so there was no
need for anybody to have screened her and I did not believe this part of the
evidence.
12 One
of the other members of the jury disagreed with me and he said
that he had visited the location and there was a
pathway and that when you looked down from the pathway you could see the crime
scene. He indicated the area was quite
open. His point was that the man would
have had to screen her otherwise she would have been seen.
13 The
general reaction amongst other members of the jury was that, 'You
shouldn't have been there' directed towards this
other juror because we had been instructed specifically not to go to the crime
scene. His reaction to this was, 'That's
where I stay, I pass that way every night'.
I got the impression that he actually went home that way but he had
taken a wee detour to have a look because this was involved in this case."
[11] Mrs N says that when the jury went to the hotel, she mentioned
these misgivings to the clerk of court.
The clerk said that juries were to find a common ground and that they
had to try to reach a verdict together.
He suggested that she should enquire what the other jurors thought and,
if there was a general opinion that this had influenced the verdict, it would
be up to the foreman to make representations on the matter to the court. She says that she spoke to the foreman in
accordance with the clerk's advice and that the matter was resolved within the
jury room.
Grounds of appeal
[12] We have refused this appeal so far as it is based on a
misdirection point (Adam v HM Adv,
2005 SCCR 479). We now have to decide it
on the remaining grounds, namely that the verdict is invalidated (a) because
one of the jurors inspected the locus contrary
to the trial judge's instructions; and (b) because the clerk had a conversation
with Mrs N after the jury were secluded.
The remit to Lord Macphail
[13] We remitted to Lord Macphail in terms
of section 104(1)(d), (2) and (3) of the Criminal Procedure (Scotland) Act 1995
(the 1995 Act) to enquire into the content of any discussion that might have
taken place between Mrs N and the clerk of court after the jury had left the
court building on the evening of 1 June 2000 and before they returned to
it on the following morning (cf Kerr (JD)
v HM Adv, 1999 SCCR 763; Crossan v HM Adv,
1996 SCCR 279). We directed that the
appellant and the Crown would be entitled to be present at and to take part in
the proceedings of the enquiry (cf 1995 Act, s 104(3)).
[14] His Lordship reports that an irreconcilable conflict emerged
between Mrs N and the clerk. The clerk
was adamant that no conversation took place between him and Mrs N. He said that he would never have given advice
to a juror. At the material time he was
preoccupied with having the jurors checked in.
He did not recall that any woman juror had wished to talk to him about
the case.
[15] His Lordship reports that Mrs N gave him the impression that
she was completely honest and straightforward.
His Lordship also interviewed the foreman. He reports that the foreman was an excellent
witness. He is convinced that the
foreman was telling the truth. He is
wholly satisfied that the clerk gave his evidence honestly and did not seek to
mislead him. He has no doubt that the
clerk genuinely believed that he adhered to his usual scrupulous practice on
the occasion in question; but he concludes that the clerk advised Mrs N to
speak to the foreman on the lines that she mentions in her affidavit. He says that it would not be altogether
surprising if the most conscientious clerk, distracted by a persistent juror at
a busy time, were to dismiss her by uttering such words in an unguarded
moment. He accepts that such conduct on
the part of the clerk was very much out of character, but he considers that it
is not difficult to understand how it happened.
[16] His Lordship concludes that there was a discussion at the hotel
between Mrs N and the clerk; that Mrs N
told the clerk that a member of the jury had examined the locus, contrary to
the instructions of the trial judge, and that she said "What can I do about
it? He shouldn't have done that," or
words to that effect. He finds that the
clerk replied "Why don't you ask the foreman?
Put it to the foreman of the jury to ask all the members of the jury
tomorrow morning if it affected their judgment," or words to that effect; and
that later that evening Mrs N spoke to the foreman and told him what the clerk
had suggested.
The statutory provisions
[17] Sections 92 and 99 of the 1995 Act, so far as material, provide
as follows:
"92 - Trial in
presence of accused
(1) Without
prejudice to section 54 of this Act ... no part of a trial shall take place
outwith the presence of the accused ...
99 - Seclusion
of jury to consider verdict
... (2) Except in so far as is provided for, or is
made necessary, by an instruction under subsection (4) below, while the jury
are enclosed and until they intimate that they are ready to return their
verdict -
(a) subject
to subsection (3) below, no person shall visit the jury or
communicate with them; and
(b) no
juror shall come out of the jury room other than to receive or seek a
direction from the judge or to make a request -
(i) for
an instruction under subsection (4)(a), (c) or (d) below; or
(ii) regarding
any matter in the cause ... "
Submissions for the appellant
[18] Counsel for the appellant submitted that the juror's visit to
the locus in defiance of the trial judge's instruction constituted evidence-gathering
and therefore that part of the trial took place outwith the presence of the
appellant. The case was on all fours
with Aitken v Wood (1921 JC 84) and Brims v MacDonald (1993 SCCR 1061). If the juror's conduct was an irregularity,
it affected the entire verdict (McTeer v HM Adv,
2003 SCCR 282). In Gray v HM Adv (1994 SCCR 225) the court held that a visit to the
locus by a juror was not per se an
impropriety; and that if there was evidence-gathering on a such a visit, it was
not to be assumed that there was a miscarriage of justice. In this case, however, the juror visited the
locus with the specific purpose of seeing the layout.
[19] Moreover, since that visit amounted to the taking of evidence,
part of the trial had taken place outwith the presence of the appellant (Aitken v Wood, supra; Brims v MacDonald,
supra). There was therefore a breach of section 92(1)
of the 1995 Act. This point was not
taken in Gray v HM Adv (supra).
The breach of section 92 was a fundamental irregularity. It was irrelevant whether the appellant was
prejudiced thereby (Drummond v HM Adv,
2003 SCCR 108).
[20] The
conversation between the clerk and Mrs N was also a part of the trial. It took place outwith the presence of the
accused. For the reasons given in Aitken v Wood (supra) and Brims v MacDonald (supra), it too was an irregularity at
common law and a breach of section 92.
[21] In any event, there was a breach of
section 99(2)(a) of the 1995 Act. The
clerk communicated with the jury without the authority of the trial judge after
they had been secluded. He gave them
directions as to how they should deal with the question of the juror's visit to
the locus. In an appeal under section
99, as in an appeal under section 92, the appellant need not prove prejudice (Drummond v HM Adv, supra). In any event, there was prejudice to the
appellant since it could not be assumed that the verdict was untainted. The jury were not required to give reasons
and the size of the majority was not recorded.
The appellant was entitled to an acquittal (s 99(5)). Counsel accepted that
this submission was not supported by Thomson v HM Adv
(1997 JC 55) or Gordon v HM Adv (2006 SCCR 1).
Submissions for the Crown
[22] The advocate depute submitted that it was not proved that the juror
visited the locus. According to Mrs N,
the juror said that the locus was where he stayed and that he passed that way
every night. She had the impression that
he had made a detour; but it was only an impression. Simply to know the locus could never found an
appeal (Gray v HM Adv, supra).
Even if the juror visited the locus, it was not known what he did there
or what he learned from his visit. If it
was not shown that he visited the locus, the question under section 92 did not
arise.
[23] At the post-conviction stage, the issue was whether there had
been a miscarriage of justice (Russell v
HM Adv, 1991 SCCR 790, at p
796). The jury were given a strong
direction to base their verdict on the evidence alone. It was to be assumed that juries would comply
with the judge's directions (McCadden v HM Adv, 1985 SCCR 282; Pullar v HM Adv, 1993 SCCR 514). The appellant had not shown that anything
done by the juror in question had been detrimental to the defence.
[24] The conversation between Mrs N and the clerk was not a breach
of section 92. It was not part of the
trial (Cunningham v HM Adv,
1984 JC 37). The trial had been
adjourned for the day (Thomson v HM Adv, 1997 JC 55, at p 58B-C). Even if there was a breach of section 92,
there was no miscarriage of justice.
These were simply the words of a harassed clerk of court to a persistent
juror in an unguarded moment. They could
not be described as directions to the jury (cp McColl v HM Adv, 1989 SLT
691). The fact that the clerk could not
recall the incident emphasised the off-hand nature of his remarks.
[25] There had been no breach of section 99 because there had been
no improper influence on the jury (Thomson
v HM Adv, supra; Gordon v HM Adv, supra).
Conclusions
The juror's alleged visit to the
locus
[26] In my opinion, this ground of appeal fails at the outset
because it has not been shown that the juror to whom Mrs N refers inspected the
locus, still less that by visiting it he did anything improper. The juror has not been traced and
interviewed. In this respect the case
can be contrasted with Gray v HM Adv (2)(2005 SCCR 106) where the court heard
evidence on the point from the juror himself.
Although I accept that Mrs N is credible and reliable, we have only her
hearsay evidence as to what the juror said and her own impression as to what he
did.
[27] In any event, I do not accept the proposition that if the juror
visited the locus, that vitiated the proceedings. In my opinion, such a visit is not an
impropriety per se (Gray v HM Adv, supra, Lord Justice Clerk Ross at p 233F-234E). It vitiates the proceedings only if the
effect of it is to deprive the accused of a fair trial (Gray v HM Adv (2), supra). That cannot be said here. The locus was a public place.
Seemingly, it was well known to the juror. It was visible to any juror who passed it on
his way to or from the court. In any
event, the jury heard ample evidence about the layout of the locus. We have no reason to infer that if the juror
visited the locus he learned anything material that was not brought out
at the trial.
[28] Counsel submitted that the broad principle for which he
contended was supported by Aitken v Wood (supra) and Brims v Macdonald (supra). In both of those
cases the irregular exercise in fact-finding was carried out by the court
itself and it related to a material issue.
In my opinion, these cases are distinguishable on both points. The actings of an individual juror cannot be equiparated with those of the court itself; and in any
event it has not been shown in this case that the factual question allegedly raised
by the juror had any material bearing on the issue in the trial. On the contrary, in my view, it did not. Moreover, the jury were expressly directed by
the trial judge to decide the case solely on the evidence that they had heard
in the course of the trial (cp Gray v HM
Adv, supra, Lord Justice Clerk
Ross at p 234B-E).
[29] On the view that I have taken, the question whether the alleged
visit constituted part of the trial does not arise. However, since this is the second case in recent
months in which the question has arisen (cf Gray
v HM Adv (2), supra) and since we
have heard submissions on it, I shall set out my views.
[30] In my opinion, even if the juror visited the locus and even if
he then engaged in evidence-gathering, his visit did not constitute part of the
trial. On this point too the submission
for the appellant is based on Aitken v Wood (supra) and Brims v MacDonald
(supra). In Aitken v Wood, the
complainer in a trial for assault spoke to the assault and said that her arm
still bore a mark from it. The magistrates,
one of whom was a doctor, having heard the evidence and submissions, retired to
consider their verdict. They then called
the complainer into their room and examined her arm. The court held that that constituted the
taking of additional evidence. It struck
at the principle that no proceedings in a criminal trial should take place
outwith the presence of the accused. It
vitiated the proceedings (ibid, Lord
Justice General Clyde at p 86). In Brims v MacDonald (supra) the
sheriff visited the locus in order to test the accuracy of evidence from a
police officer that there was a blind bend there. The court held that the sheriff in effect took
evidence at the locus and therefore that part of the proceedings took place
outwith the presence of the accused (ibid,
Lord Justice Clerk Ross at p 1065B-D).
[31] On this point too, in my opinion, these cases are
distinguishable on the ground that in both of them the unwarranted evidence-gathering
was carried out by the court itself. I
do not consider that the gathering of evidence in private by an individual juror
can be considered to be part of the trial.
[32] But in my view these cases raise a difficulty to which I
alluded in Gray v HM Adv (2) (supra, at para [9]). In both, the decision seems to conflate two distinct
ideas, namely that the court engaged in evidence-gathering and that in doing so
it conducted part of the proceedings outwith the presence of the accused. In my opinion, while the first idea is right,
the second is wrong. I cannot see how
the actings complained of in those cases were part of
the proceedings of the trial. On the
contrary, I think that it was the fact that those actings
were not part of the trial that constituted the impropriety.
[33] If I am right in thinking that the Aitken v Wood (supra) and Brims v MacDonald (supra) are distinguishable from this case, it follows that this
ground of appeal fails also under section 92.
It is therefore unnecessary for me to consider the submission of counsel
for the appellant that where there is such a breach, the appellant need not
demonstrate that he has been prejudiced by it.
That submission was founded on Drummond
v HM Adv (supra), which is binding on us.
In that case the appellant was required to leave the court, in what was
thought to be his own interests, while an evidential question was being
discussed outwith the presence of the jury.
His counsel confirmed that he did not object to that procedure. On the appellant's return, the judge told him
what had been discussed. Although this
was a matter of the merest technicality, this court held that there was a
breach of section 92, since the accused had the absolute right to be present
throughout the trial; that the breach was fundamental, and therefore that the
verdict could not stand.
[34] It occurs to me that there is a possible alternative view of
that case, namely that since the only ground of appeal is now that of
miscarriage of justice (1995 Act, s 106(3)) and since at the post-conviction
stage that issue is the court's over-riding concern (Russell v HM Adv, supra),
it was unnecessary that a provision designed to proscribe trial in absence
should be construed so rigorously. But
since the question was not fully debated before us, I express no concluded view
on it.
The conversation between Mrs N and
the clerk
[35] For substantially the reasons that I have
given in discussing the previous ground of appeal, I do not consider that a conversation
between an individual juror and the clerk of court can be said to be part of
the trial. Moreover, I am of the view
that the conversation in this case could not be said to be part of the trial in
the circumstances in which it occurred. The
trial judge's words before and after the overnight adjournment confirm that
when the trial was adjourned on 1 June, the jury's deliberations were brought
to an end for that day. The jury did not
resume their deliberations until they returned to court on the following
morning and were again enclosed in the jury room. For these reasons, in my opinion, there was neither
an irregularity at common law, at any rate in the specific respect on which
counsel founded, nor a breach of section 92 (cf Thomson v HM Adv, supra,
at p 58B-C).
[36] Nor, in my opinion, was there a breach of
section 99. The section is designed to
protect the inviolability of the deliberations within the jury room (cf s
99(2)(a), (b)). At that stage, the jury
had been instructed to break off their deliberations until the following
day. The jury were not at that stage
enclosed.
Miscarriage of
justice
[37] In any event, even if there was a
procedural irregularity on the part of a juror or on the part of the clerk, I
consider that there was no miscarriage of justice (cf Cunningham v HM Adv, supra). There is no evidence that the juror learned
anything adverse to the defence from his visit, or that the clerk exerted any
improper influence on the jury (Gordon v
HM Adv, supra). On the other hand, there was eye-witness
evidence incriminating the appellant on both charges; there were circumstantial
similarities in the evidence relating to them, and there was evidence of
numerous confessions by the appellant, at least one of which disclosed special
knowledge. Although the appellant had
lodged a special defence of alibi on charge (1) and of incrimination on both
charges, the defence led no evidence and, as is clear from the trial judge's
charge, the defence concentrated on the questions of insanity and diminished
responsibility.
Disposal
[38] I
propose to your Lordships that we should reject these remaining grounds and therefore
refuse the appeal.
|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Macfadyen
Lord Penrose
|
Appeal No: XC787/03
OPINION OF LORD MACFADYEN
in
NOTE OF APPEAL AGAINST
CONVICTION
by
DANIEL McNEIL McGILL ADAM,
otherwise known as DANIEL McNEIL ADAMS
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
|
|
For the appellant: Shead; Miss Mitchell; Jim Friel & Co,
Glasgow
For the Crown: Mitchell,
AD; Crown Agent
30 May 2006
[39] I agree that for the reasons given by your Lordship in the
chair, the outstanding grounds of appeal should be refused.
|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice Clerk
Lord Macfadyen
Lord Penrose
|
Appeal No: XC787/03
OPINION OF LORD PENROSE
in
NOTE OF APPEAL AGAINST
CONVICTION
by
DANIEL McNEIL McGILL ADAM,
otherwise known as DANIEL McNEIL ADAMS
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
For the appellant: Shead; Miss
Mitchell; Jim Friel
& Co, Glasgow
For the Crown: Mitchell,
AD; Crown Agent
30
May 2006
[40] I agree that for the reasons given by your Lordship in the
chair, the outstanding grounds of appeal should be refused.
