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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Osborne
Lord Johnston
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[2007] HCJAC 7
Appeal No: XC851/03
OPINION OF THE COURT
delivered by THE LORD
JUSTICE CLERK
in the appeal of
JAMES McGIRR
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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For the Appellant: Shead; Balfour& Manson
For the Crown: KD Stewart AD; Crown Agent
26 January 2007
The conviction
[1] On 12
June 2003
the appellant was convicted at Glasgow High Court of the following charge:
"on
3 or 4 December 2002 at Flat 1/2, 203 Crossloan Road, Glasgow you did assault
John Blair, residing there, and repeatedly strike him on the head and body with
a knife and did murder him."
The background
[2] Soon after
the incident libelled the appellant was interviewed at Govan Police
Office. In the course of the interview,
the appellant admitted that he had killed the deceased. He said that over a period of 15 years his
former wife had made unfounded allegations that he had physically and sexually
abused his son and grandson. He said
that these allegations had been repeated by the deceased, perhaps on more than
one occasion but certainly immediately before the incident that resulted in his
death.
[3] He then gave
an account of the incident. It was, in
brief, that he had bought a quantity of drink for the deceased, who was his
upstairs neighbour, and had gone to the deceased's flat. The appellant was sitting in an armchair in
the livingroom. The deceased had an
acrimonious telephone call with his girlfriend.
Then, in the words of the appellant at the police interview,
"The
next thing he went oot and came back in wae the Stanley knife and said 'Ya fuckin' stote the baw'".
There was evidence that this latter expression refers to
someone who sexually abuses children.
According to the appellant, the deceased attacked him. There was a struggle and, as the deceased lay
on the floor, the appellant inflicted several incised wounds on his neck with
the knife, one of which was fatal.
[4] The deceased
was found to have had a blood alcohol level of 349mgs/100mls.
The issue at the trial
[5] The sole
issue at the trial was whether the appellant should be convicted of murder or of
culpable homicide. The Crown led
evidence of three statements made by the appellant. The first two could have been construed as
admissions to murder. The third was the police
interview, of which there was a tape recording and a transcript. The appellant did not give evidence, but
relied on the terms of the interview in which he had set out the reasons why he
claimed to have killed the deceased under provocation.
[6] Senior
counsel for the appellant addressed the jury solely on the question of provocation.
The trial judge's
charge
[7] The
trial judge had to direct the jury inter
alia on the question of the appellant's statement to the police. That raised the question whether the
statement was a mixed statement. In the
context of the general rule against hearsay, he gave the following
direction.
"Now
the exception, and I have perhaps already identified it, to the rule against
hearsay is a statement made by an accused person as we have alleged to have
occurred here. Where evidence of these
statements have been led by the Crown as we have here and which are capable of
being interpreted both as pointing towards the guilt of what the Crown have
charged Mr McGirr with but also pointing in the direction of Mr McGirr not
being guilty of what is charges against him;
that is murder. If you take the
view that that is the character of the statements here, then you are entitled
to consider the whole of the statement.
Both the parts of the statement which you may feel point to the accused
being guilty of what he is charged with and those parts which do not and it is
for you to determine whether you accept all of the statement, part of the
statement and very importantly, it is for you to decide what you make of
it. The interpretation of the statement
is a matter for you. You will bear in
mind that what was said in these occasions is not said on oath and it is not
subject to cross-examination and you will attach precisely what weight which
you think is important. You may attach
more weight to parts of them than to others ... (at pp 17-18).
[8] We should say
at this stage that this was clearly a misdirection and that the Crown accepts
that. The words "If you take the view
that that is the character of the statements here, then you are entitled to
consider the whole of the statement" in effect left it to the jury to decide
whether the interview constituted a mixed statement, whereas it was for the
trial judge to make that decision (Jones
v HM Adv, 2003 SCCR 94).
[9] The trial
judge twice returned to the subject as follows:
"If
you decide that the accused killed the deceased ... while acting under
provocation, you would find him guilty of the crime of culpable homicide. It is open to you to find provocation in the
basis of all the evidence that has been led before you, including the evidence
which came from the transcript of the formal police interview and indeed what
the police officers, the other police officers, said the accused said to them ...
" (ibid, p 29)
"
... Now you heard evidence of what Mr McGirr is said to have said to Constable
Green, to Constable Dowds and at the interview which you have the transcript of
to Detective Constable Hutchison, the lady police officer, and Detective
Sergeant McClellan. You heard the tapes,
you have heard what he said or what he is said to have said and it is not
really challenged that that is the accused's voice on the tape and you've heard
how he said it and that all he says on that tape is available to you, both if
it's for him or against him" (ibid, p
31).
The submission for the
appellant
[10] The ground of
appeal is that the misdirection that we have quoted left it open to individual
jurors to decide for themselves whether the interview constituted a mixed
statement, and thereby to disregard the appellant's statement that he acted
under provocation. Since it clearly was
a mixed statement, the trial judge should have directed them to that effect (Jones v HM Adv, supra). The statement was
critical to the appellant's plea of provocation and therefore to the nature of
the verdict.
The submission for the
Crown
[11] The advocate
depute submitted that the misdirection had had no prejudicial effect when
considered in the context of the whole charge.
The trial judge had directed the jury that they were the masters of the
facts (Charge, p 3), even in relation to expert evidence (p 5). He had directed them that the question was
not what happened, but how to characterise what was agreed to have happened (p
6). He had later described accurately
the evidential value of the statements in the passages that we have quoted (pp
29, 31), and had concluded by reminding them that they alone were to determine
what they made of the evidence (at p 34). On a realistic view of the circumstances of
the whole case (Jones v HM Adv, supra, at para [16]), there had been no
miscarriage of justice.
Conclusions
[12] We repeat once
more that it is for the trial judge and not the jury to decide objectively whether
a statement made by the accused is a mixed statement, that is to say one that
is partly incriminatory and partly exculpatory in its effect (cf McCutcheon v HM Adv, 2002 SCCR 101; McIntosh
v HM Adv, 2003 SCCR 137, per Lord
Justice Clerk Gill at para [18]). Where
the Crown leads evidence of such a statement, the trial judge must direct the
jury that its contents are available as evidence for or against the accused,
whether or not the accused gives evidence (Jones
v HM Adv, supra); and that they must determine whether the whole or any part
of the statement is to be accepted by them as the truth. He should also specifically direct them that
if they believe the exculpatory part or parts of the statement, or if the
statement creates in their minds a reasonable doubt as to the guilt of the
accused, they must acquit (cf Scaife v HM
Adv, 1992 SCCR 845, at p 848).
[13] The trial
judge erred in leaving it to the jury to decide whether the statement in
question was a mixed statement. We
accept the submission of counsel for the appellant that, in theory at least, that
left it open to individual jurors to decide that the statement was not a mixed
statement at all, when it plainly was.
However, a misdirection must always be assessed in the context of the issues
as they emerged at the trial and in the context of the charge as a whole.
[14] The entire
line of defence was that the appellant should be convicted of culpable homicide
on the basis that he acted under provocation.
Since the appellant did not give evidence, the only evidence on which
the defence could rely was that of the statement. We may reasonably infer that that must have
been the centrepiece of defending counsel's address to the jury. Despite the misdirection, the trial judge
later directed the jury, correctly, that they could find provocation in all the
evidence led, including specifically the evidence of the transcript of the
police interview (Charge, p 29, supra). Then he said that all that the appellant had
said on the tape of the interview, which they had heard, was available to them,
both if it was for him or against him (p 31).
[15] In this
respect this case is a fortiori of McGowan v HM Adv (2006 SCCR 186), which
was also a murder case in which one of the accused sought a conviction for
culpable homicide. In that case it was
held that although the trial judge had failed to direct the jury as to the
evidential value of mixed statements, in circumstances where there was no
possibility of an acquittal, he had by inescapable implication directed them
that they could use the contents of the statements in their determination of
the crucial issues. In this case the
trial judge's directions to that effect (supra)
were quite explicit.
[16] Taking a
realistic approach to the charge as a whole in the context of the defence that
was presented at the trial, we conclude that in the event the jury were left in
no doubt that they could take the interview into account in considering the
central issue of provocation.
The question of the
appellant's mental state
[17] At the end of
his submissions counsel for the appellant raised with us the possibility that
the appellant had not been of sound mind at the time of the offence or at the
time of the trial. The appellant had
been detained in the State Hospital Carstairs for some time while he was
awaiting trial. He had been in the State Hospital since the trial. Counsel had no definite information to tender
as to the appellant's mental state, either now or at the time of the offence. He proposed that if we were against him on
the question raised in the appeal, we should continue the appeal to enable him
to obtain a psychiatric assessment of the appellant's mental state at the time
of the offence.
[18] We are not
prepared to accede to counsel's motion.
The question of the appellant's mental state was considered at the time
of the trial. It is referred to by the
trial judge in his Report. The Crown led
evidence from Dr Douglas Gray, an experienced forensic psychiatrist, apparently
at the request of the defence. Dr Gray
said that when the appellant was initially remanded, he had been sufficiently
concerned that the appellant suffered from a delusional disorder to recommend
his transfer to the State Hospital.
However, after further assessment, he concluded that the appellant was
not suffering from any mental illness, that he was sane and fit to plead and
that his condition was not such as to form a basis for a finding of diminished
responsibility.
[19] This appeal
has been in dependence for over three years.
It was open to the appellant's advisers at any time during that period
to obtain relevant psychiatric evidence and lodge an additional ground of
appeal if expert opinions supported it. There
is no information before us to suggest that if a continuation were granted,
evidence would be likely to emerge that could support an additional ground of
appeal.
Disposal
[20] We shall
refuse the appeal.
