APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Nimmo Smith Lord Eassie Lady Paton	2009 HCJAC 75 XC121/03 OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD NIMMO SMITH in NOTE OF APPEAL AGAINST CONVICTION by DUNCAN GLYNN EDWARDS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Act: Kerrigan, Q.C., Ronnie; Culley & McAlpine, Perth

Alt: Ogg, Q.C., AD; Crown Agent

25 September 2009

Introduction

[1] On 17 September 2001, at a sitting of the High Court in Edinburgh, the appellant was convicted of a charge which, after deletions made by the jury, was in the following terms:

"On 1 January 1999 at 9 Home Street, Edinburgh, you DUNCAN GLYNN EDWARDS did, whilst acting along with Craig Dundas, c/o Lothian and Borders Police, Edinburgh assault Linda Robina Skirving or Anderson, 18/5 Murrayburn Place, Edinburgh, struggle with her, repeatedly kick and stamp on her head, seize hold of her body, inflict blunt force injuries upon her whereby she was so severely injured that on 2 January 1999 in the Western General Hospital, Edinburgh, she died and you DUNCAN GLYNN EDWARDS did murder her....."

The appellant now appeals against this conviction.

[2] The case has been subject to a lengthy history. The appellant and Craig Dundas were both originally charged on indictment with the murder of the deceased Linda Anderson. On 17 May 1999, at a sitting of the High Court in Glasgow ("the first trial"), the appellant was convicted after trial of murder. Craig Dundas was found guilty of "serious assault" (as the verdict was recorded, without further specification). The appellant appealed against his conviction, on the ground of misdirection by the trial judge. On 2 May 2001 the conviction was quashed by this court, and the Crown was granted authority to bring a fresh prosecution. The Crown thereafter served a fresh indictment on the appellant, and a trial ("the second trial") took place, which concluded in the appellant's conviction in the terms set out above.

[3] The solicitors acting for the appellant prior to and at each of the two trials were Messrs Blacklock Thorley, Leith. They instructed senior and junior counsel to act for the appellant at the first trial, the subsequent appeal and the second trial. Junior counsel throughout was Mr Havenga, Advocate. Senior counsel at the first trial was Mr Welsh, QC. On Mr Welsh's appointment to the shrieval bench, Mr Hamilton, QC was instructed in his place, and appeared on behalf of the appellant both at the appeal against his first conviction and at the second trial.

[4] It is now alleged on behalf of the appellant that a miscarriage of justice took place "as a result of defective representation by those instructed as agents and counsel in preparation for and in presentation of the appellant's case at his trial which resulted in his conviction of murder....on 17 September 2001". As will be seen, it is maintained that the appellant's instructions remained the same at the second trial as they were at the first, that Mr Hamilton in particular departed from those instructions, and that this departure constituted defective representation. It will therefore be necessary to consider what were the appellant's instructions at each of the trials, and to what extent at all they differed. It will also be necessary to consider how the first trial was conducted by Mr Welsh, and the second by Mr Hamilton. Before we do that, we shall make reference to the relevant authorities.

[5] We wish to record at this point that the original note of appeal following the appellant's conviction was lodged on 29 April 2002. That there has been a deplorable delay since then is in no way attributable to the fault of this Court or of the Crown. Nor is it entirely attributable to the fault of those representing the appellant, since he has on more than one occasion parted company with those currently acting for him and has decided either to conduct the appeal himself or to instruct fresh representation.

The authorities

[6] The leading case on the question of defective representation resulting in a miscarriage of justice is Anderson v HM Advocate 1996 JC 29 ("Anderson"). It was held, by a bench of five judges, that the right to a fair trial at common law included the right of an accused to have his defence presented to the court, and that if through defective representation his defence was not presented to the court, then that could constitute a miscarriage of justice. In the opinion of the court, delivered by Lord Justice-General Hope, reference was made to Batchelor v Pattison and Mackersy (1876) 3 R 914, in which Lord President Inglis at page 918 laid down the principles which regulate the conduct of an advocate who, in undertaking the conduct of a cause, enters into no contract with his client, and of the agent who enters into a contract of employment with the client and, as a general rule, must follow his client's instructions. Reference was also made to cases from other jurisdictions, including one from New Zealand, R v McLoughlin [1985] 1 NZLR 106. Having referred to what was said in that case respecting the duty of counsel, the court in Anderson, at page 41, said:

"Counsel who represents an accused person in a criminal trial must first obtain instructions from his client about his intended defence. Just as counsel may not tender a plea of guilty unless he has instructions to do so on his client's behalf, so also he may not conduct a defence for a client who pleads not guilty which is contrary to the instructions which he has received as to the basic nature of it. His duty is to act on the instructions which he has been given. How he acts on those instructions is a matter for him, as he is entitled to exercise his own discretion and judgment in the conduct of the defence. What he cannot do is deprive his client of his intended defence by acting contrary to his instructions in this matter."

[7] Having examined other cases from the United States of America, Canada and Australia, on returning to the Scottish approach, the court said this, at pages 43 to 44:

"The basic principles are not in doubt. On the one hand there is the right of the accused to a fair trial. That right includes the right to have his defence presented to the court. Whether he is represented by counsel, by a solicitor-advocate or by a solicitor, his right is to representation in such a way that his defence will be presented to the court. This is in order that he may receive a fair trial on the charge which has been brought against him. On the other hand counsel or the solicitor who represents him is not subject to direction by the client as to how that defence is to be presented. He must act according to his instructions as to what the defence is. He cannot disregard those instructions and conduct the case as he himself thinks best. But the way in which he conducts the defence within the instructions which he has been given is a matter for him. And as a general rule the accused is bound by the way in which the defence is conducted on his behalf.

There is....a tension between the principles which give a wide discretion to counsel to conduct the defence as he thinks fit, and the duty of a court of criminal appeal to correct a miscarriage of justice on the ground that the accused did not have a fair trial. On the one hand the accused cannot be deprived of his right to a fair trial. If he is deprived of that right, there will be a miscarriage of justice in the proceedings within the meaning of section 228(2) of the [Criminal Procedure (Scotland) Act 1975] which must be corrected by the appeal court. On the other hand the principles which affect the position of counsel are fundamental to the administration of justice in this country. Counsel's independence must be preserved if he is to fulfil his duty to the court and to act in the public interest upon his professional responsibility. Any erosion of this principle would be bound to lead to uncertainty, and with it, to the risk of delay and confusion in the conduct of criminal trials, which rely to a substantial extent for their fairness and efficiency on the right of counsel to exercise their own judgment as to the way in which the defence is conducted.

Accordingly it cannot be asserted as an absolute rule that the conduct of the defence by the accused's counsel or his solicitor will not be a ground of appeal. But the circumstances in which it will provide a ground of appeal must be defined narrowly. The conduct must be such as to have resulted in a miscarriage of justice, otherwise section 228(2) of the 1975 Act will not apply. It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That can only be said to have occurred where the conduct was such that the accused's defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence which he wished to be put or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him."

[8] Since Anderson there have been numerous other decisions, most of which are no more than examples of its application to particular circumstances. Further assistance may, however, be derived from McBrearty v HM Advocate 2004 JC 122. In the opinion of the court, delivered by Lord Justice-Clerk Gill, it was said of the scope of an Anderson appeal:

"34. Anderson v HM Advocate 1996 JC 29 draws the distinction between a failure properly to present a defence and a judgment as to the conduct of the defence at the trial made in the exercise of professional discretion. In general, a complete failure to put forward an important line of defence, as for example in Garrow v HM Advocate 2000 SCCR 772, Hemphill v HM Advocate 2001 SCCR 361, AJE v HM Advocate 2002 JC 215 and Winter v HM Advocate 2002 SCCR 720, will found a relevant ground of appeal, whereas a judgment made as to the manner of presentation of such a line of defence will not (Anderson, supra).

35. The learned Dean of Faculty has pointed out that certain obiter dicta in Jeffrey v HM Advocate 2002 SCCR 822 suggested that in AJE v HM Advocate this court had extended the scope of this ground of appeal beyond that countenanced in Anderson. In our opinion, AJE v HM Advocate, properly understood, is entirely consistent with Anderson. The key point in AJE v HM Advocate was that counsel had failed to follow up lines of defence that were plainly crucial to the case, despite his having been urged to do so by the accused himself, and in the course of the trial had failed to pursue lines of cross-examination that were obviously necessary if the defence was to be properly put before the jury....

36. In some cases, it may be difficult to draw the dividing line between a judgment made by counsel in the presentation of the defence and a failure properly to present it at all. But even in the area of professional judgment counsel may make a decision that is so absurd as to fly in the face of reason. In such a case, in our view, the court is entitled to hold that the defence was not properly conducted (McIntyre v HM Advocate 1998 SCCR 379, Lord Coulsfield at p.388). To hold otherwise, in pursuit of a rigid legalistic distinction, would be to lose sight of the underlying question in every Anderson appeal, namely whether the accused was given a fair trial.....".

[9] The word "instructions" has various shades of meaning, as can be seen from such works of reference as the Oxford English Dictionary (2^nd ed.) and other dictionaries. A convenient brief definition, which is appropriate in the present context, may be taken from Collins English Dictionary: "Law: The facts and details relating to a case given by a client to his solicitor or by a solicitor to a barrister with instructions to conduct the case: To take instructions". The same applies to a Scottish advocate as it does to an English barrister. A client, or his solicitor, does not give orders to an advocate whose services have been engaged for the conduct of a case. As it is put in the Guide to the Professional Conduct of Advocates (5^th ed.), issued by the Faculty of Advocates, at para.1.2.3:

"[A]lthough it is said that the client or his agent 'instructs an Advocate' or 'instructs Counsel', this does not mean that he can give orders. An Advocate is however obliged to follow instructions as to basic matters such as the line of defence in criminal cases."

The death of the deceased

The background to the death

[10] As summarised by the trial judge at the second trial in her report to this court, the evidence led at that trial disclosed that the deceased was a 44 year old divorcee with a history of alcoholism. For some time prior to her death she had been associating with Craig Dundas, who was a friend of the appellant. On the evening of 31 December 1998 the deceased was in the company of Craig Dundas. At around midnight they were together at the flat then occupied by the appellant on the second floor of the tenement building at 9 Home Street in Edinburgh. It was clear that by the early hours of 1 January 1999 all three, that is to say the deceased, Craig Dundas and the appellant, were well under the influence of drink, and it appears that an altercation took place between the appellant and the deceased. The issue at each trial was what took place after that. The basis upon which the appellant was convicted at the second trial is summarised by the trial judge thus:

"No clear picture of precisely what happened thereafter emerged from the evidence, but it appears likely that the deceased was bundled out of the second floor flat and down the stairs to the basement area by one or both of the men. In any event, what is clear is that all three ended up in the basement area and that the deceased was there subjected to a sustained, brutal and very vicious attack. In the course of that attack she suffered a total of 78 injuries, 21 of these being to the area of the head and neck. ...

The evidence disclosed that Craig Dundas eventually left the scene and went to a neighbouring property to summon an ambulance. When the ambulance crew and police officers arrived, they found extensive blood staining on the floors and walls of the basement area. The deceased was taken to the Western General Hospital, [Edinburgh] where she died on the following day as a result of her injuries."

The Crown post mortem examination

[11] Dr Paul Fineron and Professor Anthony Busuttil, pathologists, carried out a post mortem examination and dissection on the body of the deceased on 3 January 1999. By then, some of her internal organs had been removed for transplantation. It is sufficient to refer to the commentary at the conclusion of their joint report:

"1. The death of Linda Anderson is the direct consequence of the injuries she has sustained. Natural disease played no part in this death.

2. There are multiple injuries on the body all of which were sustained at the time of death.

3. On the face the pattern and configuration of the bruising present suggests infliction of some of the bruising by items of footwear as would result by kicking or stamping on the face on more than one occasion. Other injuries may have resulted from punches to the face.

4. As a result of the head and facial injuries there has been haemorrhage around the brain and internal damage to the substance of the brain leading to gradually increased intracranial pressure which did not respond to medication. This has eventually led to downwards movement of the brain with finally an irreversible damage to the brain stem in which the vital control of breathing and head activity are normally placed.

5. There are other injuries, which have resulted from blows with a heavy hard blunt object. These were enough to produce an open (compound) fracture and fragmented fracture of the left upper arm bone, and patterned regular bruising of the trunk particularly ... The item producing these injuries is likely to have been a rectangular or oblong object such as a baton or piece of wood.

6. There is a large laceration on the back of the head associated with fairly extensive fracturing of the left side of the skull ... This suggests either a blunt force blow of marked force or a heavy fall sideways with the head hitting and impinging with some force an unyielding solid projecting object.

7. There are also numerous swollen bruises on the back of both hands ... which are highly likely to represent so called 'defensive' type injuries which would have been sustained by the deceased, when conscious, had attempted to deflect or parry away blows aimed at other parts of her body.

8. There is also skin bruising to the neck ... associated with internal bruising and fracture of both 'horns' of the hyoid bone (which is a horseshoe-shaped bone found in the upper neck). These findings indicate that the neck has been grabbed tightly by hands to the extent that the external pressure exerted has led to the internal damage. There were no obvious features of mechanical asphyxia, particularly no petechial haemorrhages (pin-point sized burst blood vessels in the whites of the eyes and around the eyes) associated with this and none were seen during her stay in the Intensive Care Unit, thus indicating that although the pressure on the neck had been forceful, it would not have been prolonged. It could however have resulted in loss of consciousness. The decreased level of oxygen caused by the brain being starved of blood by neck compression may have aggravated any pre-existing damage to the brain - cerebral ischaemia. This may have initiated and certainly and aggravated any pre-existing swelling of the brain (cerebral oedema).

9. Tests for brain stem function were performed when Linda Anderson was in hospital on two occasions and a diagnosis of brain stem death was determined.

10. With the permission of the Procurator Fiscal and the consent of the deceased's relatives various organs were removed for transplantation purposes after brain stem death had been appropriately declared. These organs showed no injury at the time of their removal and there were no injuries to the chest and abdominal walls.

11. The presence of alcohol in the body fluids of the deceased, particularly at high levels, at the time of her death would have made her less capable to defend herself and more prone to spontaneous falls or falls after being pushed. ...

13. While at least some of the injuries seen may have been produced by the deceased falling to the ground or indeed falling down stairs, the whole pattern of injuries indicates a sustained assault with multiple blows possibly using footwear and/or weapons, and the application of pressure to the neck. It is not possible from consideration of the medical evidence alone to deduce the number of assailants involved in such an assault."

The scene at the locus

[12] The tenement block at 9 Home Street has an entrance between two shop units at street level, leading to a common stair giving access to the basement and the ground, first, second and third floors. Each flight of stairs is approximately semicircular, and each landing is straight. The landings and stairs are bounded on the outer edge by metal banisters. The distance from the banister rail on the third floor to the floor of the basement is 13.14m. The distance between the landings and the banister rail on the opposite side of the stairwell varies from 61cm to 77cm. At each landing, the banister rail is 87.5cm above the floor. On each flight of stairs, the banister rail is about 105cm above the centre of each step. At the foot of the flight of stairs leading to the basement is a passageway to the back door, with storage areas opening from it.

[13] Various items of the deceased's belongings were found on the stairs. Her key to Craig Dundas's house was found on the flight of stairs between the first and second floor landings. Lower down on the same flight was a small bottle of perfume. On the first floor landing was a hairbrush. Her own house keys were on the third step up on the flight of stairs from the basement to the ground floor. Other belongings were scattered at the foot of the stairwell: a plastic bag, one of her shoes in the plastic bag, her purse, and her jacket with her bus pass in it. The other shoe was nearby.

[14] The deceased was found by the paramedics and police lying, not at the foot of the stairwell, but some distance along the passageway in the basement. Her upper body was naked, and her trousers and underwear had been pulled down. The blouse which she had been wearing had been torn completely up the right side seam, through the right shoulder, across the back of the neck hole and into the right shoulder seam. The right sleeve had been completely torn off at the seam. The left side seam was also torn. The top five buttons were still fastened, but the two lowest had been forcibly removed. The blouse was covered in dust and was extensively bloodstained.

[15] There was much blood in this area. As reported by Mahasweta Roy and Shirley Thomson, forensic scientists, who carried out an inspection of the locus on 5 January 1999, at a time when the floor of the basement had been swept clean of debris, a number of blood stains were apparent. There were small spots on the first and second banister rails. On the corner and side of the third step up, there were minute spots and splashes of blood. A few larger splashes of blood radiated down from the third step on the whitewashed part of the wall. Below this, there appeared to have been an area of blood staining on the floor, measuring 28cm x 20cm, 10cm out from the side of the stairs. On the wall directly opposite this area of the side of the stairs was a spot of blood 28cm from the floor. At the end of the corridor to the right at the bottom of the stairs there was a large blood stain on the floor. On the left hand wall there was a large area of many spots and splashes of blood which extended onto the ceiling, indicating impacts into wet blood. The source of the blood could have been above and at floor level. Some of the blood on the wall had been smeared and there were what appeared to be hair impressions. There were also spots and splashes of blood on the door at the corner of the passageway. Smears and splashes of blood were on the surrounding walls. There were two large splashes and a few smaller splashes of blood on the right wall of the passageway leading to the backdoor from this main area of blood staining.

[16] The clothing and footwear of the appellant and Craig Dundas were examined by the forensic scientists, who signed a joint report dated 12 March 1999. The deceased's blood was found on the sole of one of the boots worn by the appellant. Fatty cellular material was found on the upper surface of the appellant's right boot which matched the DNA profile of the deceased. The front and side of the appellant's jeans were very extensively stained with the deceased's blood. The deceased's blood was also found on articles worn by Craig Dundas.

The appellant's police interviews

[17] The appellant was interviewed under caution by the police twice on 1 January 1999. In the first interview, in the morning, he described how he and Craig Dundas had been drinking in a public house before returning to his flat, where they unexpectedly found the deceased and another man. On seeing them, the appellant left and went back to the public house for another drink. He then went to a party in a friend's flat on the third floor at the same address. After some time he left the party and was making his way downstairs back to his own flat, leaning on the banister rail, when he saw the deceased lying in the basement at the foot of the stairwell. In describing the position in which she was, he used the words "where she fell". He went down to her and found her unconscious. There was blood all over and her face was all smashed up. She was lying face down with one arm outstretched and one curled up. He tried picking her up between his legs. There was no response, so after moving her three or four feet away from the foot of the stairs he put her back down and left her. As he put her down he lost his balance, fell forward and went on top of her. Craig Dundas came down as he was moving her. Craig Dundas was angry. "He's almost saying like I was doing this on purpose ... I had no idea how the hell she got down there ..., I don't think she fell ...." His knee landed on her, it might have been both knees. Craig Dundas thought he was stamping on her or something.

[18] In the second interview, in the afternoon, the appellant was asked to recapitulate his previous account. He repeated that he looked over the banister and saw the deceased lying unconscious at the foot of the stairwell. He moved her away from the stairwell. The officer questioning him put to him the observation that the blood stains at the locus were consistent with her having been assaulted at the place where she was eventually found, and not having been injured at the foot of the stairwell. The appellant denied having hurt her at all; his only contact with her was to move her away from the foot of the stairs. He also said that there was "no way Craig would do anything, cos ... Craig's her boyfriend." He was shown blood stains on his boots and trousers. He then said: "I've caused her harm then haven't I? ... But I haven't caused her any harm. ... I'm not denying it then, I'm not, I'm not denying it but ... at the same time ... it's like I can't turn round and say yes I did it, because I have no recollections of me doing anything you know." He then said that he saw Craig Dundas playing with the deceased's breasts while she was lying covered in blood, and then kicking her on the side of the head a couple of times. He had no recollection of doing anything to her himself, apart from moving her.

[19] When asked, for a final time, whether there was anything else that he wanted to tell the interviewing officer, he said:

"The only thing that sticks in my mind, I didn't want to believe it when I saw it, but I saw Craig playing with her breasts ... and you know he banged her about a bit like you know, but ... he didn't, there was no stomping or you know, sorry no stamping on her or anything like that, he certainly didn't do that you know, but ... I'm not going to turn round and say that I didn't do it, and I'm certainly not going to turn round and say that I did do it either ... you know, but just from what I see there you know on my clothes it's ... it's in black and white isn't it, well you know."

The defence post mortem report

[20] Dr Hosie Tavadia was instructed to carry out a defence autopsy, and duly did so on 18 January 1999. His findings were consistent with those of Dr Fineron and Professor Busuttil. He was asked to consider the suggestion that the deceased had sustained injuries in a fall down the stairwell. Under the heading "Possible Sequence of Events and Conclusion" he said:

"The possible scenario could have been that after sustaining several blows to the head and face she was subjected to kicking and stamping. Following this she was gripped firmly around the neck, possibly by the right hand, whilst the left hand gripped the undersurface of the right upper arm. She was then possibly forced over the banister and sustained a fracture to the skull and injuries to the back, the arms and the shoulders as she fell down the stairwell.

The medical cause of death as given by the Crown pathologist was: 'blunt force trauma'. My examination and observations are in agreement with this."

On 29 April 1999 Dr Tavadia inspected the locus. He reported:

"From my inspection of the locus I am of the opinion that it is unlikely that an adult could inadvertently fall over the banister rail into the well of the staircase. However, the height of the rail is only 35" and as such a person of 5' 6" or above could easily be pushed over. In a person of approximately 5' 6" in height the top of the rail would be approximately level with the midpoint of the buttocks and just above the gluteal fold.

A fall from the 1^st or 2^nd floor into the well in the basement would almost certainly result in fractures including fractures to the skull."

The first trial

The appellant's precognitions

[21] Before the first trial, the appellant was precognosed twice by his solicitors. The first precognition was taken on 1 January 1999. In it, he is noted by the precognoscer as giving an account similar to the one he had given during the course of his police interviews on that day. The main features of it were that when he left the party on the third floor and looked down the stairwell he saw the deceased "lying in a heap at the bottom of the stairs". He immediately went down and tried to pull her out of the stairwell. At that stage Craig Dundas arrived. He started to play with her breasts and then started to kick her. At first the appellant stood by because he was in such shock and could not understand what Craig Dundas was doing there. He then realised what he was doing "and I went for him". When the police found him he had blood on his trousers and shoes. He had this because of his efforts to try and help her. If there were any splashed blood marks on him these would be as a result of the kicks which were administered by Craig Dundas. He certainly had two pools of blood on his knees through trying to help her.

[22] A supplementary precognition was taken on 10 March 1999. In it the precognoscer recorded the appellant's position as being that after he left the party on the third floor he saw the deceased at the bottom of the stairs in the basement. It was at that point that he tried to help her. As regards the two pools of blood on his knees, he did not remember kneeling down, but he certainly remembered falling over when he was trying to move her, and that might account for the blood on his clothing. He was also not sure about whether or not he went for Craig Dundas. His recollection was that he did not, although he accepted that he might have said something different when the first precognition was taken from him.

Pre-trial decisions

[23] The appellant had a number of previous convictions, mostly for relatively minor offences such as breach of the peace and theft by housebreaking. On 5 December 1995, however, he was convicted at Haddington Sheriff Court for breach of the peace and assault, and was sentenced to imprisonment for one year. The victim of the assault was Craig Dundas. Prior to the first trial, no notice was served on his behalf in terms of section 78(1) of the Criminal Procedure (Scotland) Act 1995 that evidence might be led on his behalf which was calculated to exculpate him by incriminating Craig Dundas. According to his affidavit which has been prepared for the purposes of the present appeal, he was advised that he should not follow this course, because his position might be prejudiced by the leading of evidence of his previous convictions, including the fact that he had a previous conviction for an assault on Craig Dundas: see section 266(4)(c) of the 1995 Act. He accepted that advice. It was also decided that the appellant would not give evidence, and would instead rely on what he had said to the police at the two interviews on 1 January 1999, which constituted mixed statements.

[24] According to his affidavit, in addition to the terms of these mixed statements, and the precognitions dated 1 January and 10 March 1999, the appellant "gave instructions to Mr Welsh, QC, which was in line with the careful presentation of my case which he made to the effect that the deceased had fallen over the rail in the landing down to the footwell of the basement before she was moved by me and then assaulted by Craig Dundas."

The evidence at the trial

[25] Mahasweta Roy gave evidence at the trial. She described the bloodstains found on the boots and jeans which had been worn by Craig Dundas. Asked what sort of mechanism could have led to their presence, she said there were several explanations "but one of them could be that the wearer was actually kicking an object that was wet with blood or stamping on an object that was wet with blood or they were close by when somebody else was making impacts into wet blood." She then described bloodstains found on the shoes and clothing of the appellant. The presence of blood to some depth on the sole of the right shoe, and of fatty cellular material on the upper front, were in her opinion consistent with stamping on the deceased while she was bleeding. Bloodstains on the left shoe were consistent with blood having travelled as a result of stamping with the right foot. Blood on the knees of the trousers was consistent with the wearer having knelt in blood.

[26] Asked to compare the bloodstaining on the articles worn by Craig Dundas with that on those worn by the appellant she said:

"I think both are equally extensively bloodstained. Most of the bloodstaining that is significant which is the small spots of blood is on the lower part of their clothing, their shoes and their jeans. Mr Edwards has contact bloodstains on the soles of his shoes which are more than an indication that there has been at least contact between the sole of his shoe and an object that is wet with blood whereas Mr Dundas doesn't have that on the sole of his shoes. He has that on the heel of his left boot."

Her conclusion, in summary, was that the pattern of staining of blood from the deceased on the jeans and footwear of Craig Dundas and the appellant was characteristic of being close to impact into wet blood. There might be other explanations for this pattern, but this was the most likely. In the case of the appellant, the whole pattern implied that he had been close but also that there had been contact into wet blood.

[27] Ms Roy was reluctant to speculate about the mechanism by which the bloodstains on the ceiling of the basement passageway had arrived there. She did, however, say that they could have reached there if the deceased had been struck, while she was already bleeding, first in a standing position and then as she fell. It was possible also that they had been produced by the swinging of a weapon which was being used to strike the deceased. Spots of blood beside the stairs could have been caused by an impact in the stairwell above or at the level of the third step.

[28] Ms Roy gave evidence about a bend in the joint of the banister rail at the foot of the stairs from the ground floor to the first floor. She said that the rail appeared to be very strong. She was not able to say what force would have been required to make the bend, or by what means it had been caused.

[29] Ms Roy was not cross examined by Mr Welsh on behalf of the appellant.

[30] Evidence was given by the pathologists who conducted the post mortem examinations for the Crown and the defence, under reference to their respective reports, the conclusions of which are quoted above at paragraphs [11] and [20]. Dr Fineron gave evidence that, since conducting the post mortem examination, he had examined the locus and had seen photographs taken there shortly after the death of the deceased. He said that had the laceration to the head been sustained at the foot of the stairs he would have expected to see a large quantity of blood there. This was not in fact so, and there was more blood further along the corridor. This suggested that the laceration was not sustained by a simple fall down the stairs, but further along the corridor. In his opinion, the laceration to the head was caused after the infliction of the defensive injuries. The laceration to the head was consistent with being caused by blunt force trauma, such as the use of a weapon; this could possibly have been a piece of wood, but a metal bar could certainly produce such a laceration. The injuries were consistent with her having been struck more than once with an object on the back of the head while low down, and then further assaulted by kicking and/or stamping when on the ground itself. In his opinion, the fracture to the hyoid bone had been caused by manual strangulation.

[31] Dr Fineron was cross examined by Mr Welsh on behalf of the appellant. He said that a fall from a height can produce extensive injuries, depending on the severity of the fall, and it could have produced some of the injuries he had seen. But it was difficult to explain injuries on both sides of the head and injuries to the back of the head simply by a fall from a height. The pattern of bruising was not typical of that seen in individuals who had fallen from heights. He discounted the possibility that the laceration to the back of the head could have been caused by a fall from a height and the head striking the edge of the third step up from the basement. A fall from a height would have generated sufficient force to produce the fracture to the left arm, but it was in his opinion difficult to envisage given the confined space at the locus how that could have occurred. He accepted nevertheless that the fracture could have been caused by a fall if the deceased had struck the banister on the way down.

[32] Professor Busuttil also had visited the locus. Asked about the laceration at the back of the head and the associated fracture of the skull, he said:

"I think the first point to say is that this is a massive injury and it required a marked degree of force to have produced this injury, given that the scalp had been cut right through to the bone underneath [which had been] fractured in a very serious fashion. The second point I have to make is that there was a direction to this injury in that there was shelving underneath one edge of the wound as compared to the other. So it was a blow at an angle to the scalp. The third, this is a blunt force injury with something that was blunt that could either be used to hit this particular person or this person had hit very forcibly something which is solid, immoveable and blunt. So either a direct blow or a fall against something pretty solid and pretty immobile with major force."

Whatever object had caused the injury, he would have expected to find blood, and possibly tissue and hair, at the point of contact. If the head had struck the third step up from the basement, he would have expected to find much more blood there than had been found. Tissue and possibly hair might also have been found there. On the basis of what could be seen in the photographs, he thought it more likely that the injury had been sustained away from the stairwell along the basement passageway, and that the deceased had been struck very hard, possibly even more than once, with a curved object. A heavy fall against a similarly shaped object could have produced such an injury. But the only way that the injury to the head could have been produced by contact with the banister rail would be if the deceased had fallen almost perpendicularly, as if she had been held by the feet and then dropped. Had that occurred, "there would be bloodstains on the banister, there would be hair on the banister and there would be splashing, squelching, from the site of the laceration of blood on to the side wall and elsewhere ... splashes and there weren't any". The pattern of bloodstaining he had seen in the photographs was consistent with the deceased having been assaulted, at a point away from the foot of the stairwell, with a weapon while she was standing, falling to the ground and then being kicked, and/or stamped upon. The fracture to the upper left arm and other injuries in that area could also have been caused by one or possibly two blows with a weapon wielded with considerable force. The fracture could also have been caused when the deceased fell from a height and her arm struck the banister rail, but in that event he would have expected perhaps to find some blood or tissue at the site of impact. In any event, in his opinion a fall could only have occurred if the deceased had been held by the legs and dropped perpendicularly. Apart from the points he had already made, there were no other injuries typical of a fall from a height, such as damage to the spinal column and to the internal organs, the latter of which were healthy and uninjured and had been removed for transplantation. Another indication that the deceased had been assaulted was the fracture of the hyoid bone, which suggested mechanical asphyxia.

[33] Cross examined by Mr Welsh on behalf of the appellant, Professor Busuttil repeated that he thought it most likely that the brain injury had been caused in association with force applied to produce the fracture to the skull. There was nothing in this particular laceration which precluded its having been produced by impinging with force on the banister rail. It could also have been caused by "an almighty bash" against a wall. But he thought both of these less likely than being hit with something heavy.

[34] Dr Tavadia, called as a defence witness, gave evidence that the laceration to the head and the underlying skull fracture could have been caused by impact with the corner of one of the steps leading to the basement. There was no evidence that more than one blow had been sustained. He thought it unlikely that the banister rail had caused the injury. The injury could have been caused when the deceased was standing at the foot of the stairwell in the basement and fell backwards on to the step. It could also have been caused by a fall from a height. The fracture to the left upper arm was also consistent with a fall from a height, as was some of the bruising. The absence of fractures to the spine and damage to the internal organs did not affect his view that the injuries that he had seen were consistent with a fall. This was because the stairwell was narrow, so that, if the deceased fell from the second floor landing, "I think what has happened is that she has fallen over and hit the banisters on either side on the way down so that every time her momentum has been slightly diminished." If there had been some sort of struggle she could have gone over the banister rail. He thought that an inadvertent fall was unlikely, in the absence of a struggle. Taking account of the position in which the deceased was eventually found, and the pattern of bloodstains in the basement corridor, he agreed that the overall picture was "consistent with this lady having fallen, whether there was a struggle to begin with or not, had fallen, having hit her head and fractured her skull and then been subsequently assaulted further into the basement." He accepted that the fracture of the hyoid bone was consistent with strangulation with quite sustained force. He discounted the possibility that injuries to the back of the hands and the arms were defensive, saying, "These look like abrasions caused by hitting against a wall". They could have been caused by scraping against the wall on the way down.

[35] In cross examination by the Advocate depute, Dr Tavadia explained that when he was first instructed he was provided with information that there had been a struggle on the second floor and that the deceased was found in the basement. It was with that in mind that he conducted the autopsy on 18 January 1999. He repeated that he did not think that the deceased fell spontaneously or inadvertently. He had not been told that some of the deceased's belongings had been found on the stairs; but in his view they could have come out of her bag as she fell. In the course of cross examination, the following exchanges took place:

"Q. Just leaving aside the scenario that you were given at the start of this exercise, ... is what you found at post mortem consistent with this lady having been assaulted at the point in the photograph where the bloodstains are [in the basement passageway] by being struck over the head with a heavy object causing the laceration and thereafter being stamped and kicked at that locus and strangled?

A.                Yes. It is a possibility.

Q. On any view, this woman has been savagely beaten, has she not?

A. Yes, I don't know if a weapon was used but it is very unusual to get a fracture of the humerus, the upper arm bone, it must have been quite a severe force ... She has certainly been severely assaulted because she has got a fracture of the hyoid bone. There are marks, fingernail marks in the neck where she has tried to release the grip round the neck and if I remember correctly, she has also got linear marks on the face where she has been stamped on so there has been a serious assault here, but where it has happened I just don't know."

Later he said:

"I am only given the story and I see the body and I gave the most likely scenario and my scenario was that she was gripped on the neck quite firmly, fracturing the hyoid bone, she tried to defend herself, I also saw that there was a grip mark on one arm and I thought that he had gripped her round the neck, held the one arm and forced her over the banister and that was my postulation".

Assuming, however, that he was correct in the view that she had fallen and the fall had caused the head injury, there was evidence of a further assault in the basement.

The defence speech

[36] In his speech to the jury on behalf of the appellant, Mr Welsh said:

"I say it's not murder because I say this lady fell, and that's it in a nutshell. She fell, and if she fell, he can't be convicted of murder. It was an accident ... I can't prove - I can't prove that it was a fall. I can't prove who was there, what happened. I can't prove that Linda Anderson didn't jump ... All I am saying is for the purposes of my argument before you, I say that there was a drop here and that's what caused the fatal wound".

In support of this approach, Mr Welsh relied principally on the evidence of Dr Tavadia, and on the position adopted by the appellant during the course of his police interviews on 1 January 1999. Counsel summed up his position in this way:

"The evidence is that Linda Anderson fell. That she fell in my submission is that's an accident; it's an answer to murder. There may be something else happened. My client said something terrible happened to her, something very terrible happened downstairs, and you may think there's something in that. His position is he didn't do it. He's got blood on him. You may think, 'Well, he was involved in that'. What I say to you is he was involved not in the crime of murder."

By their verdict that the appellant was guilty of murder, the jury rejected the hypothesis that the deceased died as the result of an accidental fall, which was not even enough to raise a reasonable doubt in the minds of a majority of their number.

The first appeal

[37] There were three grounds of appeal against this conviction. The first ground was in these terms:

"The defence was that the evidence suggested the deceased fell from the second floor landing of the tenement down the stairwell sustaining the fatal skull fracture and underlying brain injury on impact. The trial judge directed the jury ... that it was open to the jury to find that the deceased had been pushed over the banister and to decide who was responsible for this on the evidence before them. There was no evidence that [the appellant] pushed the deceased over the banister from the second floor landing. The said direction contradicted the Crown's position [that the deceased was murdered in the basement by the use of blunt force causing death] and was a misdirection. The said direction by the trial judge undermined the defence and gave rise to a miscarriage of justice. The trial judge ought to have directed the jury that they could not convict of murder arising out of a push over the second floor banister as there was no evidence that both or either accused was responsible for such a push".

The Crown conceded that there had been such a misdirection, and on that basis the appeal was allowed.

The second trial

Preparations for the trial

[38] As already noted, the same solicitors, Messrs Blacklock Thorley, continued to act for the appellant at the second trial. Two qualified members of staff were involved in the preparations for and in covering the trial. Paul Smith was engaged on a short term contract from August 2001 to January 2002. David Alexander had been involved from the time of the first trial and subsequent appeal. Both of them gave evidence before us, under reference to contemporaneous records. This was a useful exercise, because it allowed certain important developments to be seen in context. It also served to demonstrate that all decisions of importance were taken by counsel, principally Mr Hamilton, and that the solicitors acted in accordance with his requirements and advice. Neither Mr Hamilton nor Mr Havenga was able to give evidence before us; but we have had the benefit of Anderson responses (as they are called) from each of them. These responses are consistent with the evidence of Mr Alexander and Mr Smith. We shall return to these in due course.

[39] We see no need to record and examine the minutiae of preparations for the conduct of the trial, which are of no direct relevance to the real issue in this appeal. We shall, however, set out what appear to us to be the main developments.

[40] In the first place, Craig Dundas, who had been convicted at the first trial of a serious assault on the deceased, was listed as a Crown witness and was expected to give evidence blaming the appellant for her murder.

[41] Secondly, a fresh precognition was taken from the appellant by Mr Smith on 10 August 2001. After outlining his relationship with Craig Dundas (with whom he had resumed his friendship after serving his sentence for the assault on him) and the deceased, and outlining his movements on the evening of 31 December 1998, his position on precognition is recorded as being that after going to the public house and then the party in his friend's flat on the third floor, he went to his own flat on the second floor, where he saw Craig Dundas and the deceased. They were having an argument. The precognition continued (with typographical corrections):

"I got quite annoyed about this as we always have arguments when we're drunk and I wanted this evening to be different because it was Hogmanay. I tried to stop the argument [but] Linda kept on cursing and swearing at me. I only stayed there for about 15 or 20 minutes and then went back up to John's [flat on the third floor]. They were not arguing when I left.

For about half an hour after that I went back down to the flat and saw that Craig and [Linda] were still arguing. There were a number of items lying all over the place which indicated that Linda had smashed the flat up again. At that point I told Linda to go as she was shouting and swearing at me and I got a hold of her and began to move her out of the flat. She was resisting me but only by leaning her body right up against me. She was not punching or scratching or anything like that but she was still cursing. Craig was still in the living room. I managed to [move] Linda out into the common stair and at that point I pushed the door over. The door was not closed. She began banging and kicking at the door. It stopped after 30 seconds.

A couple of minutes after that Craig went out to look for her. He came back in after about a minute and at that point I went out to look for her. I was at the banister of the common stair which is a spiral staircase. I saw Linda lying at the bottom of the stair in the basement. I started to go downstairs and Craig followed me.

When we got downstairs we saw Linda lying on her side twisted slightly facing up. I do not recall seeing any blood. I then bent over her to try and see if there were any signs of life and began lifting her up under her armpits. At that point Craig began to pick up her feet. As we were picking her up I began to notice the blood on me. It was the first time I noticed that she was

bleeding.

We began to carry her up the spiral staircase. We only got her over the first couple of stairs when Craig dropped her legs and I therefore had to drop her chest. She was therefore back below the stairs at the basement. At that point Craig began to kick her. He was kicking her to the side and body and shouting at her. He was calling her a slut and a whore and a slag. I was standing right next to him at this point. Craig began to pull her torso up towards him by the blouse. I do not recall seeing the blouse coming off but I do recall seeing him at one point squeezing her breasts. This was not in a sensual manner but was more in an effort to assault her. I was standing watching it when this went

on.

Craig continued to kick her across the floor. Her body was actually moving away from the stair along the corridor towards the back door. He even kicked it round the corner. I wasn't doing anything at this time. I was so fed up with the amount of arguments they were having that I really couldn't have cared what happened to either of them. Craig was not doing [sic] anything as he did this.

Craig eventually stopped kicking her. He then walked past me and up the stairs. I did not see where he went but I knew that he did not go back to the flat as I went up there."

He then went on to explain that paramedics arrived and the police were called. Counsel, who were of course already well aware of the evidence which had been led and the defence tactics at the first trial, were provided with copies of this precognition.

[42] Thirdly, while counsel appear initially to have considered other possible lines of defence, and had requested that Dr Tavadia and (perhaps rather surprisingly) Sheriff (as he by then was) Welsh be cited as defence witnesses, matters crystallised at a consultation on 31 August 2001, at which the appellant was present. The principal decision taken at that consultation was that a notice of special defence of incrimination be lodged. This was done on 5 September 2001, in the following terms:

"SMITH for the Panel Duncan Glynn Edwards, states that the Panel pleads not guilty and further, specially and without prejudice to said plea that the offence, if committed, was committed by Craig Dundas, c/o Lothian and Borders Police".

It was also decided at the consultation that Sheriff Welsh be released from his citation, and that productions which had previously been prepared, seemingly to assist in the contention of an accidental fall from a height, should not be lodged. Moves to instruct a pathologist in place of Dr Tavadia were discontinued; and in the event Dr Tavadia was not called as a defence witness.

[43] It is apparent from all of this that Mr Hamilton had reached a firm decision that the best line of defence was to blame Craig Dundas for everything that had befallen the deceased on the night of her death. We shall discuss below his justification for doing so. We should add, at this stage, that in his response to this court, Mr Hamilton states that the accused had given instructions that he would give evidence (presumably on the lines set out in his precognition dated 10 August 2001), and that it was on this basis that he conducted the trial.

The trial

[44] The key features of the trial can be set out quite briefly. The principal witness against the appellant was Craig Dundas. After describing the earlier events of the night in question, he said that there was a point when he was in the appellant's flat and an argument broke out between the appellant and the deceased. There was a struggle, the appellant grabbed the deceased, she managed to break loose but he grabbed her blouse and her arm. Craig Dundas tried to intervene. The deceased then left the flat, but the appellant followed her, and they were shouting at each other. Craig Dundas went to look out of the window for the deceased as she left. He next went out of the flat, asking where the deceased was. The appellant was coming up the stairs, and had reached about halfway. The appellant said he was not sure, he did not know where she was. He then ran down the stairs as if looking for her. Craig Dundas also looked over the banister and started to go down the stairs. The appellant came running back up, said "She's down there" and pointed to her.

[45] The deceased was on the floor of the basement, motionless. She was lying on her side with her head to the side. Craig Dundas could see that there had been an accident or something. He immediately ran down and knelt beside her. She was seriously injured and seemed unconscious. He saw an injury and blood at the back of her head, and an injury to her arm. The appellant followed him and stood at the bottom of the stairs. Craig Dundas was trying to speak to the deceased, when the appellant started to stamp on her head. He did this maybe two or three times before Craig Dundas grabbed his leg. The appellant said, "She's alive, she's OK, she will be all right", and then continued the assault. He punched her, grabbed her by the neck, lifted her, kicked her and continued to kick her. Craig Dundas succeeded at last in stopping him from stamping on her, and shouted at him, calling him a murdering bastard. Craig Dundas also remembered that the appellant dragged her along the ground on her back. Craig Dundas ran out to the back garden at some point and screamed three times for help. Then he ran back in and by this stage the appellant was at the bottom of the stairs. Craig Dundas wanted to go for an ambulance, but the appellant at first blocked his way. Then for some reason the appellant decided to let him pass and Craig Dundas immediately ran up the stairs and to a nearby taxi office.

[46] In his examination in chief, Craig Dundas thus denied having taken part in any assault against the deceased. Naturally he was cross examinated by Mr Hamilton on behalf of the appellant. The most important passage came when the suggestion was put to Craig Dundas that he had murdered the deceased. It was put to him that the appellant put the deceased out of the house; that the appellant came back in and pushed the door to; and that the deceased was banging and kicking at the door but then stopped doing that. Craig Dundas said that he did not remember this, but it could have happened. It was then suggested to him that he himself then went out of the flat and followed the deceased; that there was some form of violence on the stairs between him and the deceased, which caused some of her possessions to be scattered on the stairs; that the struggle continued into the basement; that at the foot of the stairs he knocked the deceased to the ground; that he kicked her and stamped on her; that lying there was some form of weapon with which he struck her so hard either before or after she fell to the ground that he caused a complex comminuted fracture of her arm; that he then came back after the passage of some time to the appellant's flat; that he and the appellant looked over the banisters and saw her lying at the foot of the stairs; that they both then ran down the stairs together and attempted to lift the deceased and to carry her up; that he dropped her legs so that she slipped from the appellant's grasp and fell again, and that he (Craig Dundas) again began kicking her and stamping on her. All of these suggestions were met with denials of one sort or another.

[47] Mahasweta Roy again gave evidence about bloodstains at the locus and bloodstains on the footwear and clothing of the appellant and Craig Dundas, under reference to the joint report dated 12 March 1999. In cross examination by Mr Hamilton on behalf of the appellant, she said that some of the bloodstains on the appellant's clothing could have come from cradling the deceased. But small spots of blood on the shoes and on the jeans and the fatty cellular material must have come from some forceful impact into wet blood, and had come flying through the air to reach the upper part of the shoe. While the sole of the appellant's left shoe had been in contact with something wet with blood, she agreed that it had been to "a pretty shallow amount". In re-examination, however, she said that the pattern of bloodstains on the appellant's jeans and shoes was more indicative of impacts into wet blood than of some other mechanism such as coughing or spitting.

[48] Professor Busuttil, the pathologist, again gave evidence on similar lines to that given by him at the first trial. He again discounted the possibility that the deceased had been severely injured as a result of a fall from a height, and gave similar reasons for this view. He expressed the opinion that all of the injuries to the deceased were consistent with her having been the victim of a sustained assault. In cross-examination by Mr Hamilton on behalf the appellant, which was designed to reinforce Professor Busuttil's evidence in chief, he agreed that the defensive injuries could have been sustained in the course of an attack with a weapon, that other injuries were strongly consistent with her having been struck by a weapon, that further injuries could have been received either by falling several times or being struck repeatedly by a weapon, or a combination of these, and that the main injury to the head was also consistent with having been caused by repeated blows with a weapon. Dr Fineron was not called as a witness.

[49] The appellant elected not to give evidence, and no defence evidence was called.

[50] We have not been provided with a transcript of Mr Hamilton's speech to the jury, but an impression of it may be gained from the trial judge's charge. In one passage she said:

"While it is not clear how they got there, it is not in dispute in this trial that Linda Anderson and the two men, her boyfriend Craig Dundas and the accused, Duncan Edwards, all ended up in the basement area of the tenement and that there Linda Anderson was the victim of a savage assault as a result of which she died. Both men accept that they were present in the basement when that assault took place and there was evidence from a forensic scientist, Miss Roy, which would suggest that they were both very close to the body when it was bleeding. It seems to have been suggested by the accused at one stage that the deceased sustained her injuries when she fell down the stairwell, but you have heard Professor Busuttil's evidence that in his opinion that did not happen and he has prov[id]ed cogent reasons for that opinion, being the extent and nature of the injuries and in particular the absence of any damage to the internal organs which you recollect were in a fit state to be used in a subsequent transplant. It has not been suggested on behalf of the accused during this trial that the deceased fell downstairs and that is therefore not an issue for you to consider. ... In his address to you on behalf of the accused Mr Hamilton has accepted that the deceased was stamped and kicked by someone in the basement and that the accused was down there and was within a metre of her blood. But he has submitted to you that the Crown has not proved that it was the accused rather than Craig Dundas who should bear the responsibility for Linda Anderson's murder. So there it is ... these are the matters you will have to consider. Remember please that the issue you have to decide is in relation to this accused, in relation to Duncan Edwards only and you have to decide to what extent he was involved in what was done to Linda Anderson."

The present appeal

[51] The grounds of appeal, as they have evolved, are discursive, but it is apparent from them and from the written note of argument prepared by counsel, and was confirmed in the course of senior counsel's submissions to us, that the main allegation is that those representing the appellant at the second trial departed from his instructions that the deceased had, as the result of a fall, sustained major injuries, which were fatal. It is alleged that the appellant was not informed of this departure. There are numerous further allegations of defects in the preparation of the defence, but it is not suggested that either individually or cumulatively these constituted defective representation unless the main allegation is substantiated. So it comes to this: did it constitute defective representation on the part of those representing the appellant, in particular Mr Hamilton, to abandon the hypothesis that the deceased had sustained fatal injuries as the result of an accidental fall, before being assaulted by Craig Dundas, and instead to conduct the defence on the basis that all the deceased's injuries were attributable to a murderous assault by Craig Dundas?

[52] In his response to this court, Mr Hamilton writes:

"I have no doubt that I presented his case within the parameters of his instructions, having regard also to the very heavy Crown case against him. I particularly deny that there was inadequate discussion with him as to the evidence presented at the first trial, and that there was inadequate consultation. ... I am confident that Mr Edwards was properly represented, that his defence was properly prepared by both solicitors and counsel, and that he suffered no miscarriage of justice as alleged by him. I observe that Mr Edwards himself declined to go into the witness box to answer the Crown case against him, although I had conducted the trial on the basis of his earlier instructions that he would give evidence.

On the morning before the jury retired to consider their verdict Mr Edwards presented me with a note in which he thanked me for the excellent conduct of his defence 'whatever the result'."

[53] In a further response, Mr Hamilton notes that he had three consultations with the appellant in connection with the first appeal, at each of which the evidence against him at the first trial was discussed; that in connection with the second trial there were four further consultations at which the evidence for and against him was discussed; and that these did not include any consultations held (as would be usual) during the course of the trial.

[54] All of this is confirmed by Mr Havenga and by the solicitors who gave evidence before us. Mr Havenga writes that time and time again the appellant expressed his complete satisfaction with the way the trial was proceeding. Mr Alexander recalls the appellant thanking him and counsel for what they had done, saying that they had given it their best shot.

Discussion

[55] Since the gist of counsel's submissions to us is that Mr Hamilton should have conducted the defence at the second trial on the same lines as it was conducted by Mr Welsh at the first, it is necessary to see what justification there might have been for following that course rather than a different one. At the first trial, Craig Dundas was a co-accused, and for the reasons already given the appellant had accepted advice not to lead evidence incriminating him. It had also been decided that the appellant would not give evidence. Mr Welsh accordingly had to conduct the trial on the basis of what the appellant had said in the course of the police interviews and such assistance as could be derived from expert opinion about the real evidence. This was an unenviable task. There was virtually incontrovertible evidence that the deceased had been subjected to an assault in the basement passageway, and that the appellant had been at least in close proximity during that assault. During the course of his police interview, in the passages quoted above at paragraphs [18] and [19], he adopted an ambivalent position, and did not rule out the possibility that he himself had been involved in the assault. On his own account, he did have physical contact with her when he tried to lift her, and he recalled falling on her. He made contradictory statements about the possibility of her having fallen from the second floor landing, saying at one point, "I don't think she fell". When the possibility of a fall was put to Dr Fineron and Professor Busuttil, they both gave reasons for discounting it. Dr Tavadia, called as an expert witness for the defence, adhered to the fall hypothesis, but only on the basis that someone had deliberately pushed the deceased over the banister rail, thus causing her to fall. He also accepted that all of the deceased's injuries were consistent with her having been assaulted in the basement. In his speech to the jury, Mr Welsh went at least as far as it was open for him to go in the circumstances. He argued for an accidental fall, even though that was not supported by any witness, not even Dr Tavadia; and he argued for a subsequent assault (which must in that case have been carried out by Craig Dundas), even though the requisite notice had not been served, and the possibility had as a consequence not been explored on behalf of the defence during the course of the evidence.

[56] Mr Hamilton was presented with a completely different situation. Craig Dundas, having been convicted at the first trial of an assault on the deceased, was expected to give evidence against the appellant. There was now no constraint on incriminating him. In his precognition dated 10 August 2001 the appellant, in a material change of position, is noted for the first time as saying that he had forcibly ejected the deceased from his flat. Dr Tavadia's evidence at the first trial proceeded on the information he had been given that a struggle had taken place on the second floor landing, and it was on this information that he based the hypothesis of a non-accidental fall. It is not clear what was the source of the information with which Dr Tavadia had been provided, though it may have been taken from Craig Dundas's police interview, but now, given the appellant's acceptance that he had forcibly ejected the deceased from his flat, there was a serious danger that any suggestion of a non-accidental fall might lead to its being attributed to him. There was thus every reason to avoid the accidental fall hypothesis, and therefore every reason not to call Dr Tavadia. On no account given by him did the appellant state that the deceased had in fact fallen: he could not state this, because he claimed to have been elsewhere, either in the third floor flat or in his own flat, before looking over the banister and seeing the deceased at the foot of the stairwell. The terms of the precognition dated 10 August 2001, coupled with the evidence given by Professor Busuttil and by Miss Roy at both the first and the second trials, yielded the far more plausible hypothesis that Craig Dundas had initiated an assault after following the deceased from the flat whence she had been ejected by the appellant, and that he thereafter continued the assault in the presence of the appellant. Account required to be taken of the inherent implausibility of the hypothesis that she fell accidentally and was then assaulted in the basement by Craig Dundas. It is not at all surprising that Mr Hamilton took the view that the only practicable course was to pin the whole blame for the deceased's injuries on an assault by Craig Dundas.

[57] We return to the question of counsel's instructions. In our view, the appellant's instructions to his representatives, and in particular to Mr Hamilton, were as follows:

(1) He was not guilty of assaulting and murdering the deceased;

(2) His account of the night's events was as set out in his precognition dated 10 August 2001, and that he would give evidence on the lines set out in that precognition; and

(3) As agreed at consultation with him, a special defence of incrimination was to be lodged, and thus the whole criminal responsibility for the deceased's injuries and death was to be attributed to Craig Dundas.

This was his "intended defence", as it was put in Anderson. Despite various minor criticisms of the preparations for the trial, into which we see no need to go, it is clear to us that Mr Hamilton's advice at and after that consultation was in accordance with those instructions, and that he likewise conducted the trial, exercising his own discretion and judgment, in accordance with them. Given the strength of the Crown case against the appellant, Mr Hamilton was faced with a difficult task, and in our view, far from being open to criticism, he conducted the defence case with the skill and economy to be expected of such an experienced advocate.

[58] Our overall judgment is that, far from there having been defective representation in this case, and consequently a miscarriage of justice, we can see no reason to disagree with the appellant's initial view that the defence had been excellently conducted. His defence was fairly and squarely presented to the court.

Result

[59] For these reasons, we have no hesitation in refusing this appeal.