APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Clarke Lord Woolman	[2009] HCJAC 77 Appeal No: XC627/06 OPINION OF THE COURT delivered by LORD CARLOWAY in in the appeal by PHILIP LUCAS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Mason; RT McCormack, Glasgow

Respondent: Ferguson QC, AD; The Crown Agent

7 October 2009

1. The Evidence

[1] On 29 August 2006, at the High Court in Glasgow, the appellant was found guilty of a charge which libelled that:

"on 6 August 2005 at 28 Shapinsay Street, Glasgow you did assault John Thomas O'Brien ... and strike him on the neck with a knife or similar instrument to his severe injury and you did murder him".

He was sentenced to life imprisonment with a punishment part of 14 years.

[2] A useful summary is provided by the Trial Judge in his Note to the Parole Board:

"On 5 August 2005 the accused had gone to a pub at about 3.30 pm. He was drinking there until he went home at about 5.00 pm. He had arranged to meet a friend of his, John McAuslane, in the Glen Douglas pub that night. McAuslane had purchased a 'carry-out' of a bottle of vodka and some cans of beer. He sat out with a friend of his, John O'Brien, the deceased, who was not known to the accused. He had known the deceased since about 2002. He was a 'happy-go-lucky' person. He had never known him to carry a knife or say that he did. McAuslane and the deceased went to the Glen Douglas bar at about 8.30 pm. There they met the accused who was in the company of a number of other people. They all remained there until the pub closed at 12 midnight. Everyone had got on well together. The accused said that he was drunk as he had been drinking all day.

McAuslane, the deceased, the accused and two other males then took a taxi to the house of the accused's son in the Milton area of Glasgow. They continued to drink McAuslane's carry-out. Again everyone was getting on well. There was some sort of carry-on involving the deceased, McAuslane and the accused's son whereby each was putting the other into 'strangle holds' and rendering them momentarily unconscious. There was little or no ill will during this. Some of the party, including McAuslane and the deceased, took cocaine. They were asked to leave by a girl as it was getting late.

They then went to the accused's house not far away. Both the deceased and the accused were drunk by that stage. They were all sitting in the accused's living room - McAuslane, the deceased, the accused and a man named Campbell who lived in the deceased's house. No argument was heard between the deceased and the accused. The accused left the room and returned with a machete. While he was out the deceased said 'he's going to get something'. The accused struck the deceased with the machete on the neck, the deceased was sitting down on one of the settees. The machete was produced in court - (L6) having been recovered later in a bedroom by the police. It had not been in the living room until brought there by the accused to strike the deceased. There was blood all over that particular corner of the room.

McAuslane told the deceased to run out of the house. McAuslane shouted at the accused 'What the f***ing hell did you do that for?'. The accused replied, 'he's been doing my nut in all night'. The deceased ran out of the house on to the pavement where he collapsed and died. The accused made good his escape and remained at large for several days. No-one succeeded in getting help for the deceased except for a passer-by who flagged down a police car.

The deceased was seen on post-mortem examination to have sustained a major incision about 25cm long to the left side of his neck. The edges of the cut were clean and not serrated. The blow had come forwards and downwards. The lower end was thus deeper. The wound had severed the left jugular vein and thyroid cartilage and had cut into the airway. There was a hole in the centre of the larynx. The wound had been caused by a sharp instrument in a slanting motion across the neck, from left to right and downwards. Moderate force would have been required. The deceased would have bled to death in about 15 minutes. It was unlikely to have been caused in the manner described by the accused to the police".

[3] The critical evidence against the appellant was that of Mr McAuslane. A full transcript of his evidence had been obtained. He spoke to arriving back at the appellant's flat at about 3 am, with the deceased and the appellant. After about half an hour, Mr McAuslane described the appellant leaving the livingroom and the deceased saying "He's going to get something". The appellant returned with a big machete and struck the deceased with it on the neck with it (Transcript pp 41 - 43). He told the deceased to run from the house, while the appellant left the room with the machete. Mr McAuslane had shouted at the appellant "what did you f***ing dae that for" and the appellant replied "He's been doing my nut in". The deceased collapsed on the pavement. Mr McAuslane denied the defence version that the deceased had got up from a couch and made a motion towards his jacket as if going for a knife whereupon the appellant lifted up the machete and "came into contact with" the deceased (pp 109‑110).

[4] Set against that was the appellant's evidence, which was also available in transcript. According to the appellant, the deceased had told him in the pub that "he always carries" a knife (pp 16 - 17). He was asked in cross examination whether anyone else had heard this remark. He replied "I don't know". The appellant claimed to have kept the machete beside the couch. At one point, he wanted the deceased and Mr McAuslane to leave (p 32). The deceased had been seated on a couch. He got up and "made a forward lunge towards" him (p 33). The deceased had put his hand behind his jacket. The appellant thought that the deceased was going for a knife in the back of his trousers" (p 34). The appellant grabbed the machete from the side of the couch and stood up to face him. The appellant "swung round" (p 36) with the machete to warn him off. Initially, he said that he did not strike the deceased at all (pp 37, 70). But under cross-examination, eventually accepted that he had done so (p 71).

[5] No knife that might have been carried by the deceased was ever found. Since the deceased lasted only a few minutes and died on the pavement outside the house, it must have been clear to the jury that, whatever the appellant had thought, the deceased had not been carrying a knife. Both Mr McAuslane and the appellant's flatmate, Mr Campbell, had never seen the machete being kept next to the couch.

2. Ground of Appeal No 1 - Directions on Statements

[6] The first ground of appeal, and the appellant's submission, was that the trial judge:

"misdirected the jury on the significance of the mixed statements made by the appellant. In the first place he did not direct the jury that if they believed the exculpatory parts of those statements or if they raised a reasonable doubt they should acquit. Secondly he did not direct the jury to have regard to the contents of the statement as a means of assessing the appellant's credibility."

The specific complaints are correct. The trial judge did not so direct the jury. What he did say (charge p 7) was:

"the accused did give evidence ... and if you take the view ... that such evidence amounts to a denial of guilt and if you believe any such denial or even if it raises a reasonable doubt in your mind, then that is an end of the matter".

He continued (pp 9-10), specifically in relation to statements:

"...statements made by an accused person ... are acceptable evidence in a case whether favourable or unfavourable to the accused person.

... if you believe the accused then you must acquit him. Even if you don't believe him but his evidence or for that matter any other evidence in the case raises a reasonable doubt in your minds then again you should acquit. If however, as I said, you are satisfied that the Crown has brought home guilt to the accused then it is your public duty to convict".

[7] It is important for a Trial Judge to make his directions readily understandable to the jury. Where an accused person has given evidence, the value of the content of any prior statements will vary according to whether, and to what degree, they are consistent or inconsistent with his testimony. With the exception of some very minor details, the appellant's evidence was consistent with what he had said earlier in his interview with the police and at Judicial Examination. In these circumstances, a direction to the effect that, even if they rejected the appellant's own testimony, the jury could still acquit, if the content of a prior consistent statement raised a reasonable doubt, has an air of over elaboration. The Trial Judge told the jury that the content of the statements could be used as evidence for or against the appellant. He directed them that if the appellant's testimony, or any other evidence (which would thereby include the statements), raised a reasonable doubt then they should acquit. That was an adequate direction. It might have been desirable for the Trial Judge to have given the jury a specific direction concerning the use of the statements to test credibility or reliability. But such a direction, especially where the Crown did not rely on the content of the statements to any material degree to undermine the essentials of the appellant's testimony, was not necessary. As in many trials, it will have been obvious to the jury what utility prior inconsistent statements possess from the use made of them during the cross examination. Spelling that out in directions is not always a necessity.

3. Grounds of Appeal Nos. 2 and 3 - Directions on Accident and Self Defence

[8] The appellant complains that:

"The directions given in relation to self defence were apt to confuse. The appellant's position was that the fatal blow struck was an accident. He explained that he came to have the machete in his hand because he feared that the deceased was going to attack him with a knife.

At page 20 the trial judge effectively removed self defence from the jury's consideration. He then directed the jury that it would be open for them to convict if they rejected self defence. The trial judge repeated the directions on self defence at pages 34-37. At the conclusion he directed the jury that 'if the Crown have excluded each of these three factors then you must convict'.

Neither approach was correct. What the jury had to consider was whether the appellant had deliberately struck the deceased with a machete.

In any event the trial judge failed to give adequate directions to the jury on the relationship between self defence and accident. Since these concepts were central to the appellant's position it was necessary for the relationship to be explained carefully to the jury so that they were in no doubt about the task they had to undertake. The absence of such directions deprived the appellant of his right to a fair trial".

It was the submission of the appellant that the appellant's evidence constituted a defence of "accident". This was notwithstanding that the appellant, at least at one point, admitted wielding a machete with which he hit the deceased. Self defence, it was said, did not arise other than in connection with the picking up of the machete. Reference was made to the speech made on behalf of the appellant to the jury, which contained the following:

"At the outset of this trial the Clerk of Court read to you a Special defence of Self Defence, because ... you know from [the appellant] that what he did was he took the knife ... he doesn't dispute it, and he turned round to present the knife and in certain circumstances that of itself might be deemed to be an assault. But ... he had a belief that [the deceased] had a knife, that [the deceased] was coming towards him with a hand behind his back. He would, at that stage, have had a fear for his own safety ... Now, if that could in law be deemed to be an assault, the act of taking the knife was in self defence then that's how it started out. But, of course, [the appellant's] position to you very clearly ... was that the actual contact was an accident ...

I raise that ... because you may wonder why there was a Special Defence read out to you because the initial act was of self defence, but the actual contact was an accident ...".

It was submitted, rather unusually, that the trial judge had erred in leaving open the issue of self defence for the jury to determine. If he had been correct in that, his directions had, in any event, been wrong in that he told the jury that if they rejected self defence then they were bound to convict. Reference was made to Clark v HM Advocate [2006] HCJAC 92 at para [6].

[9] The Advocate Depute countered by submitting that, standing the position of the appellant in relation to accident and self defence, it was not surprising that the Trial Judge had left both for the jury to determine (Surman v HM Advocate 1988 SCCR 93; and Mackenzie v HM Advocate 1982 SCCR 499). If anything, his approach had been favourable to the appellant.

[10] The trial judge directed the jury (p 16) thus:

"Now, one of the defences put forward by [counsel for the appellant] was that of an accident. ... an assault upon which this whole charge is based has to be done with wicked intent and wicked intent is excluded by a playful act or a justifiable act or an accidental act. So if you were to find that this was all a tragic accident then of course you would acquit of all the offences that I have described to you.

                      

[Counsel for the appellant] also indicates that there was evidence upon which you might choose to rely that at the time when the death or the fatal blow rather was inflicted the accused was acting in self-defence. Self-defence I may tell you is an absolute defence to the charge, it leads to acquittal. As I told you, the onus of proof remains on the Crown and accordingly it is for the Crown to meet that defence and to lead evidence from which you can take or might infer beyond reasonable doubt that such a defence should be rejected".

Having looked at the three requirements for self defence, he continued (pp 19-20):

"I want to say a little more to you about that third requirement that only reasonable force is permitted in self-defence. Here according to the Defence a threat of attack was met by the use of a machete. How does the law view that? Normally, you see, striking someone with a fist wouldn't justify retaliating with a knife or a gun because there is no real proportion as I have just described it between a blow with a fist and a retaliation with a weapon. Retaliation, as I said, has to be proportionate to the attack but there may, and indeed there are some very, very exceptional circumstances where a blunt force attack, actual or anticipated, may be met by the use of a knife but in my view, ladies and gentlemen, the circumstances do not exist in this case and it has not been suggested that they do. Of course in applying these tests about the use of force by one person and the use of force by another and their being roughly approximate, in applying that sort of test you have got to allow for the heat of the moment. So don't judge an accused's actions too finely. Take a broad and reasonable approach to the type and degree of violence he faced and the type and scale of force in his response. If you think that each one of these three conditions is satisfied you could hold that the accused had acted in self-defence and acquit him. If the Crown has satisfied you that not one of these or not all of these conditions are satisfied then it would be open to you to convict".

The jury asked for clarification and the Trial Judge went through various aspects of the law again as follows (p 30):

"... An assault is any deliberate attack on the person of another whether causing injury or not provided that it is done with wicked intent and not playfully, accidentally or justifiably. If it were done playfully or accidentally or justifiably then it would not have the necessary wicked intent. If the attack were not deliberate, it would not be an assault. That may be important in relation to this case because we're talking here about the assault being a strike with the machete and in order to be an assault it must have been a deliberate strike. So if it was accidental then that is not a crime".

He continued (p 34):

"... self-defence is an absolute defence because in our law if a person is attacked or is in reasonable fear of attack then he is entitled to use such force as is needed to ward off that attack. Now, I told you what an assault was and I said that it was not an assault if it doesn't have wicked intent and I have just explained to you for example about it being deliberate and I said that the other two categories which might exclude that (inaudible) if it were playful, two guys mucking about and suddenly someone gets injured, that would be sort of playful, there is no wicked intent, you don't intend to get someone hurt. The third category I mentioned was justifiable. An assault doesn't have the wicked intent if it is justifiable and in law to defend yourself. It becomes justifiable and therefore it is not an assault and it cannot be either murder or culpable homicide. It is an absolute defence".

He again went through the three elements in self defence and said (p 37):

"So if you find that each of these three conditions are satisfied, or to put it another way and more properly, if you found that the Crown have excluded each of these three factors then you must convict. If you find that these three conditions have been met then you must acquit entirely of the charge. That is how self-defence works".

[11] It became apparent that the appellant's counsel had not thought it advisable to consider the actual terms of the special defence which was before the jury. He stated that he had never seen it. The special defence reads:

"...the panel pleads not guilty, and specially and without prejudice to the said plea, that on the occasion libelled he was acting in self defence".

Picking up the machete was not part of the libel. It is clear that, whatever defence counsel may have said in his speech to the jury, what was before the jury was a general plea of self defence relating to the libel of murder by striking the deceased with the machete. That is not surprising. However counsel may have put it to the jury or to this court, it is difficult to classify striking someone a blow with a machete, which has been deliberately picked up for use to ward off an attack, as an "accident" in legal terms.

[12] Although, of course, a special defence is only notice to the Crown of a possible line of defence, if an accused is not insisting on that line, it is the normal and accepted practice for the defence representative to intimate his withdrawal of the plea to the Court before the Crown address the jury. If that is not done, the defence position ought to be made clear to the jury in the defence speech. That was not done in this case. The jury were not told that the defence was not being insisted upon. Quite the contrary, the appellant made reference to it in addressing the jury. The defence effectively tried to run two defences and deliberately left the appellant's position ambiguous in that regard. In that situation, it was entirely appropriate for the trial judge to direct the jury accordingly on both aspects of the defence case (Surman v HM Advocate (supra) and Mackenzie v HM Advocate (supra). This was especially so as the Crown had not sought to have self defence withheld from the jury.

[13] The trial judge's directions on self defence are not open to serious criticism. He directed the jury upon accident on two occasions and made it clear to them that accidents are not assaults. He then directed them on self defence. It is readily apparent that the context of his directions on self defence presuppose that accident has already been rejected by the jury. The directions proceed on the basis that it is established that the appellant's actions were deliberate, in the sense of aiming a blow at the deceased. Seen in that light, the direction that the jury would be bound to convict (of something) if the Crown excluded the three elements necessary for self defence, is clear, unambiguous and correct.

[14] These grounds of appeal must fail.

4. Ground of Appeal No 4 - New evidence

[15] The fourth ground of appeal is in the following terms:

"Evidence has now become available to the defence which was not known about at the time of the trial. Following conviction the Crown disclosed to the defence the existence of a witness called Janet Watson and sent agents a copy of her statement. Agents then instructed that a precognition be obtained from her. When that was done a precognition was obtained from a man called Adam Smith. In that precognition he confirmed that he had had a conversation with the deceased on the night of his death in which he gave Mr. Smith to understand that he was carrying a knife.

Mr Smith could have been called as a witness to speak to the terms of that conversation which would have supported the appellant's position.

His evidence was likely to have had a material bearing on a central issue which the jury had to determine".

The essence of this ground relates to evidence, currently in the form of an affidavit, from Alan Smith in the following, amongst other, terms:

"I know the [appellant] and have known him for several years as a regular at the pub where I used to work which was the Glen Douglas ...

... I met the [deceased] for the first time in the pub on the night he died ...

At one stage I was sitting at a table at the rear of the public bar adjacent to the lounge. There were several others at that table including [the deceased] and his pal (Mr McAuslane).

I had been engaged in conversation with [the deceased] for about half an hour when I asked him what he did for a living. His reply took me aback as he said he was a housebreaker ... [W]hen I asked him if he was frightened about being caught or challenged ... he replied 'I always come equipped'. He then patted his top trouser pocket in a manner which clearly indicated that he had a knife in his pocket.

...

My then partner was not present during this conversation but I told her about it later".

[16] The significance of this evidence was said to be that it might have bolstered the appellant's credibility when he said that the deceased had told him in the pub that he carried a knife, viz: "he says when he goes into strange areas he always carries ... a knife" (Transcript p 16). The appellant had given evidence in chief that this was said at a table in the pub and that other people had been sitting at the table. In cross-examination, he said that he did not know whether anyone had heard the remark (p 72). In his speech to the jury (pp 7-8), the Advocate Depute made some play of the fact that the witnesses, who had given evidence and had been at the table (Messrs McAuslane and Campbell), had not heard the remark. Thus, it was submitted, had the evidence of Mr Smith been heard by the jury, they might have reached a different view on credibility.

[17] The issue of what had been said in the pub was explored at the trial. But it had been raised by the appellant at an earlier stage. He had been interviewed by the police on 8 August 2005, when he had surrendered to the police in the company of his law agent, at Maryhill police office. In that interview, the appellant commenced a lengthy narrative thus (p 3):

"[I] have been advised by my lawyer no tae make any comments but I'd like tae state my ane. I've never met [the deceased] before in my life until that night, until Friday night. We had been oot having a drink in the local pub the Glen Douglas but during the conversation on the night he informed us he always carries aw the time 'cos he is a hoose breaker".

Later in that interview (p 7), he dealt with the incident itself, when he said:

"I was on that chair and [the deceased] was on that chair. And he's got up. He's put his arms ontae his jaiket. He said earlier on in the Glen he always carries especially when he is in areas he doesny know. I mean so as he went to jump up, I've grabbed the [machete] fae the side o' my chair and I swung it roond tae show him it. F***ing stop him daeing whitever he was gaeing tae dae ...".

In due course, in preparation for the trial, the appellant would have received a copy of the transcript of that interview. But, in any event, he was also Judicially Examined before the Sheriff on 10 August 2005, when his law agent was present. He was asked about being in the pub and about who had been with him. He said (p 3):

"Jan Watson, Gary ... Watson ... Jan's boyfriend Alan. I don't know his second name and Jan's niece, don't know his name (sic) and Douglas Campbell"

as well as Mr McAuslane.

[18] What had happened after the trial was that the Crown had disclosed all statements in their possession to the appellant. These had included one taken from Jan Watson. This statement, which the Court has not seen, did not contain any reference to the deceased mentioning carrying a knife in the pub. But as a result of that, the defence decided, for reasons not revealed, to precognosce Ms Watson. She told the defence that, although she had not heard any remark in the pub, her then boyfriend, Alan Smith, may have done so. That led in turn to the evidence now revealed. In fact, the police had taken a statement from Mr Smith during their investigations of the murder, but had not sent that to the procurator fiscal. This three page closely typed document, which was copied for the Court, deals with events in the pub, but makes no mention of the deceased claiming to carry a knife.

[19] By interlocutor dated 13 January 2009, the Court determined that the appeal hearing be confined to the first three grounds of appeal and to whether the "reasonable explanation test" for new evidence in section 106(3A) of the Criminal Procedure (Scotland) Act 1995 had been met.

[20] The appellant submitted that the test had been definitively explained in Campbell v HM Advocate 1998 JC 130. Although it was for the appellant to satisfy the test, it was sufficient that the court be persuaded that the explanation for the evidence not being adduced at the trial was "genuine". The test would be met if the appellant had "no good reason for thinking that the witness ... would give the evidence in question", approaching that matter in a "broad and flexible" way (Lord Justice Clerk (Gill) at 146-7). It was accepted, as Lord McCluskey said (at 167), that the "reasonable explanation" was the essential key which opens the door. But the court ought to have in mind what was "necessary or expedient in the interests of justice" (LJ-C (supra) and Lord McCluskey (at 167) quoting the Sutherland Committee's endorsing of the remarks of LJ-C (Thomson) in Gallacher v HM Advocate 1951 JC 38 at 45). Barr v HM Advocate 1999 SCCR 13; Burzala v HM Advocate 2008 SCCR 199; and Fraser v HM Advocate 2008 SCCR 407 had, it was contended, all been wrongly decided in that they had not followed the principles in Campbell (supra). The explanation tendered was that neither the appellant nor his agent had seen any reason to precognose the other persons in the pub. They had no reason to assume that Mr Smith would say what he had now said.

[21] The Advocate Depute submitted that no reasonable explanation had been tendered for not having called Mr Smith to give evidence at the trial. There were three principles to be derived from Campbell v HM Advocate (supra). First, what is a reasonable explanation has to be determined by the Court in an objective manner. The declared thought process of the appellant and his advisors were not decisive. Secondly, it was for the appellant to satisfy the Court of the reasonableness of the explanation; to that extent the onus was on him. Thirdly, if the appellant failed to satisfy the Court on this matter, the evidence cannot be heard, no matter how important it may be. Barr v HM Advocate 1999 SCCR 13 was closely analogous to the present case. Precognosing those in the pub who might have overheard the remark to the appellant was an obvious line of enquiry (Burzala v HM Advocate 2008 SCCR 199 at para [49]; Fraser v HM Advocate 2008 SCCR 407, LJ-C (Gill) at paras [139]-[140]).

[22] In Fraser v HM Advocate (supra), the Lord Justice-Clerk (Gill) explained clearly and once again the statutory framework within which new evidence is to be dealt with. There is no cogent reason for departing from or rephrasing his formulation:

"[131] Sections 106(3) and 106(3A) of the 1995 Act regulate fresh evidence appeals in the context of the single ground of appeal that the 1995 Act allows, namely miscarriage of justice. Before new evidence can be considered by the court, the appellant must furnish a reasonable explanation why it was not heard at the trial. Unless there is a reasonable explanation, the appeal cannot succeed, no matter how significant the proposed new evidence may be...".

This case is, in essence, indistinguishable from both Barr v HM Advocate (supra) and Burzala v HM Advocate (supra). Although, as is not uncommon, no contemporaneous material has been placed before the Court to indicate exactly what the appellant's instructions were in advance of trial (e.g. a precognition), the Judicial Examination, which was attended by the law agent, illustrates that it was the appellant's position that he considered that the deceased might be armed because of what had been said in the pub. In his earlier interview with the police, he had been in a position to say who had been in his company in the pub. The company included Jan Watson's boyfriend, Alan. This was Mr Smith. It was then an obvious line of inquiry to precognosce Mr Smith in advance of trial. It has to be assumed, despite the content of his police statement, that, had he been asked about what had been said at the table in the pub, Mr Smith would have told his precognoser what the deceased had said to him about a knife. Whether to lead that evidence would then have been a decision for counsel to take at the trial. In these circumstances, no reasonable explanation has been advanced for the evidence not having been heard at the trial and the appeal on this ground also must fail.