APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Osborne Lord Marnoch	[2011] HCJAC 29 Appeal No: XC431/10 OPINION OF THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION AND SENTENCE by ALAN CAMERON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the Appellant: J Scott, Sol Adv, M Anderson, Adv; Capital Defence, Edinburgh

For the Crown: A Prentice QC (Sol Adv), AD; McKenna, Adv; Crown Agent

29 March 2011

Introduction

[1] In May 2010 at the High Court at Livingston the appellant was tried on three charges. Charge (1) was as follows:

"(1) between 29 November 2007 and 11 December 2007, both dates inclusive, at 1/4 Royston Mains Place, Edinburgh you ALAN CAMERON did assault Heather Joanne Stacey or Egan or Williamson, formerly residing there, by means to the Prosecutor unknown and did cause her injury as a result of which she died there and you did murder her.

[2] Charge (2) libelled an attempt to pervert the course of justice in thirteen specific respects, which related to the appellant's alleged actings in the course of about a year after the death of the deceased, all of which he was said to have done with intent to prevent the police and the procurator fiscal from conducting an investigation into the death and to avoid detection, arrest and prosecution in respect of charge (1). Charge (3) was a charge of theft of money, in about the same period, from various branches of the post office by the use of the deceased's post office card and PIN number.

[3] The appellant was convicted on all three charges. He was sentenced on charge (1) to life imprisonment with a punishment part of 25 years. He appeals against conviction on charge (1) and against the sentence on that charge in respect of the punishment part.

The evidence

The deceased

[4] The deceased was aged 44. She was the appellant's girlfriend. She was unemployed and lived alone in a block of local authority flats at the locus libelled. The appellant regularly visited her there. She had a history of alcohol abuse. In 2006 and 2007 she had several emergency admissions to hospital after drinking binges. The last of these was in June 2007. Catherine Reid, her project worker, described her as being vulnerable. She said that the deceased was anxious and depressed, that she had a number of physical problems, and that she had had difficulties with a violent ex-partner. She could function without alcohol but drank if things got too much for her. Several witnesses who dealt with her in 2007 spoke of her more positively. They said that she was well-presented, took good care of her flat, had plans for the future and was intent on regaining contact with her children. Her adult daughter, Danielle Williamson, said that the deceased would binge-drink but could go for years without drinking.

[5] There was conflicting evidence about the deceased's condition in late 2007. Catherine Reid said that on 19 October 2007 the deceased told her that she had gallstones and was on strong painkillers. She sounded as if she was under the influence of alcohol or possibly painkillers. On 26 October she telephoned Miss Reid and said that she was still unwell. Her daughter said that she last saw her in October 2007. She was sober and did not seem ill. Jane Rattray, a solicitor, met her on 20 November 2007 and saw no signs of a drink problem. Two neighbours, Elizabeth McGuire and Margo Goudie, saw her looking tired and unwell.

The appellant

[6] The appellant was aged 53. He had a flat in the Moredun area of Edinburgh. He was being pursued by the City of Edinburgh Council for rent arrears. On 19 October 2007 an order for recovery of possession was made. An acquaintance, Margaret McKenzie, who had worked with mentally handicapped adults, described the appellant as being vulnerable and a bit of a fantasist. Several witnesses spoke to his having on occasions falsely claimed that his wife or one of his children or a friend had died.

Relations between the appellant and deceased

[7] Several witnesses described how the appellant spoke fondly of the deceased and was proud and happy about their relationship. He showed photographs of her to colleagues and friends. He appeared to be supportive of her, assisting with domestic chores and showing concern about her health and her drinking. In early November 2007 the appellant and the deceased visited her mother and stepfather and announced that they were engaged. There were suggestions that the appellant might have been jealous of other men.

The deceased's death

[8] The last known contact from the deceased appears to have been on 29 November 2007, when she spoke on the telephone to Catherine Reid. She was upset and sounded as if she might be drinking.

[9] The date of death is not known. Dr Andrew Whittington, a forensic entomologist, said that in his opinion the insect life on the deceased's remains indicated that she had died in late 2007. In his police interview the appellant said that she died in early December 2007.

Moving the deceased's body

[10] Dr Whittington's opinion was that the deceased's body had been kept indoors and that it had lain in the small bedroom of her flat from soon after her death throughout most of the period prior to the deposition of her remains. Secondary activity of insects had occurred in most of the other rooms. A larger secondary accumulation of insects in the main bedroom suggested that the body, body parts, soiled clothing or household items might have been temporarily housed in the main bedroom, probably at quite a late stage of decomposition.

The deceased's Post Office account

[11] It was accepted by the defence that on various occasions between 10 December 2007 and 20 October 2008, the appellant unlawfully used the deceased's post office card and PIN number to obtain a total of £4,965.88 from various branches of the Post Office.

The text message to Catherine Reid

[12] It was also accepted by the defence that on 11 December 2007 the appellant sent a text message to Catherine Reid that purported to be from the deceased.

The appellant travels to Thurso

[13] The appellant spent Christmas 2007 with his friends Dennis and Margaret MacKenzie in Thurso. According to the evidence, he was distressed and jittery when he arrived. He told Dennis MacKenzie that he had split up with the deceased. He seemed besotted with her. He told Margaret MacKenzie that the deceased was spending Christmas with her family. He appeared to be having telephone conversations with the deceased. After one of them he told Margaret MacKenzie that the relationship was finished. She thought that he was stressed, but was back to his usual self by Boxing Day. When she asked him what was wrong, he said that it was woman trouble. To Ruth Gunn, with whom he stayed in Thurso, he also referred several times to telephoning the deceased.

The Social Fund award

[14] It was a matter of admission that the appellant, knowing that the deceased was already dead, submitted an application in her name to the Department of Work and Pensions for a Social Fund award of £600, that this sum was paid into the deceased's post office account and that the appellant withdrew it.

The pretence that the deceased was still alive

[15] The deceased's neighbours regularly saw the appellant at the deceased's flat throughout 2008. In early January he told Elizabeth McGuire that the deceased was living with him in his own flat. Later, when she asked after the deceased, he maintained the pretence that she was still alive. The deceased's neighbour Brian Meek asked the appellant two or three times how the deceased was. He said that she was looking after her mother, or that she had been drinking and was unfit to travel. His colleague Megan Nolan saw him apparently arguing with the deceased during a telephone conversation.

The Council's actions

[16] The deceased's housing benefit stopped on 1 July 2008. Elizabeth Milne, a housing officer, called at the deceased's flat several times to verify her income. She left cards and sent follow up letters. The deceased did not respond. In October and November 2008 the Council wrote to her threatening legal action for non-payment of rent.

The appellant's demeanour

[17] By late 2008 the appellant was working in a store in Newhaven. There he displayed behaviour that suggested that he was under stress. He claimed, falsely, that his daughter had had a car accident and died of a heart attack. He became moody and bad-tempered, and would burst into tears. He pushed Megan Nolan aside when she tried to comfort him. In December 2008 another colleague, Maureen Baillie, detected a distinctive smell from the bottom of his trousers. She had worked in a nursing home. The smell reminded her of elderly patients who were receiving treatment for gangrene involving maggots. In late 2008 Elizabeth McGuire saw the appellant. He looked tired and drawn.

The involvement of Brian Meek

[18] Just before Christmas 2008 the appellant telephoned Brian Meek and said that the deceased was having trouble with her former boyfriend. He asked Mr Meek to go downstairs to her flat and check whether anyone had been looking for her. Mr Meek went downstairs and noticed that there was a thread hanging over the deceased's front door. It appeared to have been placed there. If the door had been opened the thread would have fallen off. The appellant had not mentioned this. On looking at the door Brian Meek concluded that no-one had been in the flat.

The repossession of the deceased's flat

[19] The Council obtained an order for recovery of possession of the deceased's flat. Miss Milne arranged for a joiner to accompany her to the flat on 15 December 2008 to change the locks. The flat was generally tidy and appeared to have been abandoned. There was a pungent and unpleasant smell.

The disposal of the deceased's remains

[20] On 31 December 2008 the deceased's head was found in a carrier bag in bushes on Hawthornvale Path. The bag had first been observed by dog walkers just before Christmas. It had not been there on 15 December when the path was cleaned. Other remains were found between 1 and 19 January 2009 at locations in Granton. The appellant accepted that he put them there. Some of the remains could have lain there since early to mid November 2008. Ninety per cent of the deceased's remains were recovered.

[21] Police officers examined the rubbish bin allocated to the deceased's flat. There was an overwhelming smell of decaying remains. Inside there was a black bin liner with stained bed clothing and other items.

The appellant's reaction

[22] Megan Nolan said that at Hogmanay 2008 the appellant told her that a head had been found near the shore. He was completely calm, as if he was talking about the weather. On New Year's Day David Docherty, a customer of the store, said to the appellant "I see they found a heid in a bag." The appellant replied "Did they?" and shrugged. He also told Dennis Mackenzie that a decomposed head had been found. He thought that it had come from a tomb, and did not seem bothered.

The appellant's police interview

[23] When the appellant was detained and interviewed, he denied that he had assaulted or murdered the deceased. He admitted that he had disposed of her body. He claimed that he had left her flat to buy food and returned to find that she had died. He had been speaking to her 20-25 minutes earlier. She had had a good drink in her when she died. She had been on a downward spiral of alcohol abuse, she was bedridden and incontinent, though not drunk, all the time. He had panicked because he had an outstanding non-appearance warrant on a charge of breach of the peace; and had not attempted to resuscitate her or telephone the emergency services. He had moved her body two or three days later from the main bedroom to a smaller one, but could not explain why. He had gone away but had returned in March 2008 to find that the body was still in the flat. From March to July he had lived in the flat until he obtained accommodation from the Salvation Army. He had regularly checked that no-one had found the body, because what had happened was beginning to hit home. He denied that he had told people that she was still alive. When the Council wrote to say that the flat was to be repossessed, he had decided to take the body away. He denied that he dismembered it. He said that it had come apart when he moved it. He told lies during the interviews. For example, he claimed to have been in London when post office records showed that the card had been used in Edinburgh. He could not explain why he had lied.

The medical evidence

[24] Professor Anthony Busuttil and Dr Ralph Bouhaidar carried out post mortem examinations of the deceased's remains. Because of the advanced state of decomposition the cause of death could not be ascertained. There were no obvious injuries. The hyoid bone was not fractured, although that did not exclude the possibility of strangulation. Diazepam and paracetamol were present in minute concentrations. Cutting marks on the deceased's leg bones were likely to have been inflicted after death. As decomposition advanced it would eventually have become easy to pull the body apart.

[25] Professor Busuttil had experience of cases of sudden death where there were no signs detectable at post mortem. There were a number of possible causes. In at least one per cent of cases the cause of death could not be ascertained. In those cases the deceased's history might indicate what had happened. Alcoholics might die suddenly. At certain levels alcohol was poisonous and could cause death. After regular drinking a sudden withdrawal could cause convulsions and lead to death. Convulsions could kill over hours but sometimes, when the problem was acute, death could occur in minutes. Sudden death after excessive drinking was uncommon. It would be more usually a process observable by others and taking hours or days. The deceased's medical records were consistent with quite serious alcohol problems. If death was caused by alcohol withdrawal, decomposition might prevent pathologists from finding that out.

[26] Dr Julie Dalgleish was the deceased's doctor. She had last seen her on 28 September 2007. The deceased had been well dressed. Her hair was tidy and she was made up. Dr Dalgleish did not remember any smell of alcohol. There was no sign of a severe problem but the medical records disclosed several emergency admissions associated with binge drinking, including alcohol withdrawal syndrome and seizures. Dr Dalgleish thought there had been signs that the deceased was doing quite well and was trying to put binge drinking behind her. She was not aware of any risk factors that might have led to the deceased's sudden death.

[27] Professor Susan Black, a forensic anthropologist, said there had been unsuccessful attempts to separate the deceased's right femur from the lower leg above the knee and to sever the left femur both at the hip joint and above the knee joint. It was most likely that the implement used had had a fine thin serrated blade and had been unsuitable for this purpose. Therefore a considerable effort had been needed, with repeated passages across the bone. Some of the cuts were deep and showed sustained efforts. The cuts were clearly post mortem. She could not say if they had been made soon after death or a considerable time later. Decomposition increased the ease with which a body could be dismembered without cutting. There would be no reason to cut up a body if it had decomposed to such an extent that it could be pulled apart.

The submission of no case to answer

[28] At the end of the Crown case the solicitor advocate for the defence made a submission of no case to answer on the ground that there was no evidence entitling the jury to convict the appellant of murder, or even assault, since one of the facta probanda, namely that the deceased was killed, was not supported by sufficient evidence in law. The trial judge repelled the submission.

The trial judge's directions on murder and culpable homicide

[29] In his charge to the jury, after defining the crimes of murder and culpable homicide, the trial judge said:

"In this case as you know there is no medical evidence which entitles you to say that a particular act or acts were carried out by the accused. You are asked to infer in very general terms, that somehow or other the accused was guilty of murder. And you are asked to infer that from the steps taken after the event. So if you are satisfied that the steps showed that somehow or other the accused was responsible (inaudible) for the death of the deceased, how would you choose between murder and culpable homicide? How would you know which one it was? If you are satisfied that because he did all these things he must have killed her somehow or other.

One way of looking at it might be, it is a matter for you, that the more determined and immediate and prolonged the steps were, the more serious you might infer the crime was. That is one way you might want to approach it. If you look at the steps which were taken and you have heard the evidence about that, and you can infer what, why would he do that? Would you do these things if you were guilty of culpable homicide? It is a very serious crime but not as serious as murder. Or did the steps themselves show a mind, which is so guilty that it must have been a very serious crime? It must have been the crime of murder, because the steps taken are such as to allow me to infer that it must have been that very serious thing which he did. So you look at the evidence (inaudible) and how extreme were these steps, and from that can you extrapolate (inaudible) as it were to infer what it must have been which happened. That is how the Crown, I think, approached the case and ask you to do. And that is a decision which you will have to make.

As I say if [the solicitor advocate for the accused] rightly points out, there is no assistance really to be derived at all in from any medical evidence at all. And there are no eye-witnesses other than of course the accused himself who says that it simply did not happen.

Now, ladies and gentlemen, I cannot really assist you in how you go about that. You have heard what the Advocate Depute has had to say. He has set out in his address the various factors which he says entitle you to draw the conclusion beyond reasonable doubt that the accused was guilty of murder. I have defined that for you. I have defined culpable homicide for you, if you did not think that the inference could be so extreme as to allow you to convict of murder, but nonetheless you thought he had killed her. It is a matter entirely for you. But you have to be satisfied that at least he assaulted her. If he did not even do that, if you must ask about that, then that is an end of the case. It is as simple as that."

Submissions for the appellant

[30] The solicitor advocate for the appellant submitted that the trial judge erred in repelling the submission of no case to answer. The Crown had failed to establish any sufficient link between the appellant and the deceased's death. The Crown case relied on speculation rather than on reasonable inference from established facts. Such an approach was unjustified (Broadley v HM Adv 2005 SCCR 620). Evidence of an accused person's behaviour after a death was relevant only on the question of mens rea (Dickson, Evidence, paras 86-94, 108; Gardiner v HM Adv 2007 SCCR 379). It could not be used to prove that a crime had been committed. The suggestion to the contrary in Beggs v HM Adv (2010 SCCR 681) was obiter and was unsound. To assume that a guilty act had occurred because of evidence of an apparently guilty mind was a circular exercise. The present case was distinguishable from Beggs v HM Adv (supra) where the deceased had suffered a violent sexual assault shortly before death and dismemberment had occurred shortly thereafter. The trial judge had left open the possibility of a conviction for culpable homicide. That highlighted the difficulty, if not the impossibility, of using post mortem actions to determine whether a homicide had occurred and, if so, whether it was murder or culpable homicide. The appellant's reaction to the death had to be seen in the context of his vulnerability. The evidence of the deceased's alcohol withdrawal syndrome and related seizures provided a possible alternative cause of death, which the Crown had not excluded.

Submissions for the Crown

[31] The advocate depute submitted that it was of the nature of circumstantial evidence that it had to be looked at as a whole (Al Megrahi v HM Adv 2002 SCCR 509; Campbell v HM Adv 2008 SCCR 847). It was for the jury to decide which of the possible explanations for the death they accepted (Al Megrahi, supra; Fox v HM Adv 1998 JC 94). Here the evidence of the appellant's post mortem actions was sufficient to support a charge of murder. There was not merely a concealment of an unexplained death but an active course of conduct to prevent its cause from being ascertained. The concealment was maintained for over a year. The appellant pretended that the deceased was still alive and obtained financial gain. There was evidence of possible motives in the appellant's jealousy and financial problems. Logically, the unsuccessful attempts at dismemberment must have occurred closer to the time of death than the subsequent separation of the limbs. The appellant's actions had been extreme. They were relevant to establishing that he had murdered the deceased.

Conclusions

[32] The case against the appellant was entirely circumstantial; but that does not mean that the Crown case was necessarily the weaker for that. In many cases, a multiplicity of items of circumstantial evidence, some apparently of neutral significance when seen in isolation, may, when seen together, present not only a sufficiency of evidence but a convincing and compelling case. That is why the analogy with the strands of a cable, which is referred to in some of the text books, is helpful to our understanding of the nature of a circumstantial case (cf Walker and Walker, Evidence, 3rd ed para 5.9.3).

[33] On that view, the question is therefore whether the circumstantial evidence, looked at as a whole, is capable of yielding the inference that the appellant killed the deceased. In my opinion, it is. The starting point is that on the date of the death the appellant was with the deceased in her flat; that on his own account he was with her only a matter of minutes before her death; and that he did not suggest that anyone else had been in the flat at the relevant time. He alone knew of the date and circumstances of the deceased's death. When the deceased died, he did not contact the emergency services, or any of the deceased's family, or take any steps to arrange a funeral for the body. Nor did he notify the Council as the deceased's landlords.

[34] Instead, he concealed the body and moved it from the main bedroom to a smaller bedroom. He then embarked on a course of deception in which he led others to believe that the deceased was still alive; for example, by sending the false text message to Catherine Reid; by having simulated telephone conversations with the deceased; and by leading various friends and neighbours to believe that she was still alive.

[35] There was also evidence justifying the inference that at a time when he alone knew where the body was, and at a stage before advanced decomposition had set in, the appellant had attempted to dismember it.

[36] According to the appellant's statement to the police, he lived at the flat from March to July 2008 and thereafter regularly checked that no-one had found the body. This was supported by the evidence of Brian Meek regarding the incident at Christmas 2008. A possible inference from that evidence was that the appellant had placed the thread over the door as a tell-tale. Then, when he had kept the body concealed for over a year and when the repossession of the flat became imminent, he removed the body and disposed of the remains at various places in the Granton area.

[37] There was also the unlawful obtaining of money due to the deceased by the appellant while her death was known only to him.

[38] According to Dickson (loc cit) and Gardiner v HM Adv (supra), evidence of an accused's actings after the death is relevant to the question of mens rea; but I do not consider that its relevance is confined to that. In my opinion, such evidence can be relevant also to the prior question whether the accused killed the deceased (cf Beggs v HM Adv, supra). Taking all of this evidence together, I consider that the jury were entitled to conclude that the appellant killed the deceased.

[39] If I am right in that view, then the actings of the appellant in this case were sufficient to justify the conclusion that he both killed the deceased and did so with the mens rea necessary for a conviction of murder (cf Gardiner v HM Adv, supra, at paras [149]-[152]).

[40] In the present case, it has been suggested on behalf of the appellant that on the evidence of the deceased's medical history, which I have summarised, it was as likely that the deceased died of natural causes as that she was murdered and therefore that there was no case to answer. For the reasons that I have given, I do not accept that that argument is valid. Still less, therefore, do I accept the submission for the appellant that there was any onus on the Crown positively to exclude the possibility of death by natural causes. In my opinion, in the face of the circumstantial case, and in the absence of defence evidence, the question was whether the case was proved beyond reasonable doubt. Other possible interpretations of the Crown evidence would have a bearing on that question.

[41] So far as I can see, it was not suggested to the jury that they should convict of any lesser offence than murder. It has not been suggested in this appeal that the court should substitute a conviction for culpable homicide. The defence position at the trial and at the appeal was to argue for an acquittal and nothing less.

[42] Nevertheless, the trial judge directed the jury that the verdict of culpable homicide was open to them. My own view is that that direction was both unnecessary and inappropriate. I think that a reasonable and logical conclusion on the evidence was that the appellant murdered the deceased. On the other hand, I can see no basis on which a conviction for culpable homicide could be justified since it would have been a matter of the merest speculation whether there were circumstances which justified a conviction of the lesser crime. There could be such circumstances in a case of this kind if, for example, the appellant's statement to the police or the evidence at the trial had provided a foundation for a conviction of culpable homicide. But there is no such foundation in this case and the solicitor advocate for the appellant did not suggest that there was.

The appeal against sentence

[43] The solicitor advocate for the appellant submitted that a punishment part of 25 years would normally be imposed only in the worst cases of murder, involving torture, the use of firearms or the killing of a child or a police officer (Walker v HM Adv 2002 SCCR 1036; HM Adv v Kelly 2010 SCCR 103). As the Crown could not establish how the deceased died, there was no basis for treating this case as one of the worst, even in light of the other charges. The appellant had been convicted in the High Court in 1995 of sexual offences against children and sentenced to five years' imprisonment, but those were non-analogous offences and did not provide a basis for the punishment part imposed.

Conclusions on sentence

[44] In my opinion, the punishment part was excessive. It appears that the trial judge was influenced by the appellant's actings after the death. Those actings were the subject of charges (2) and (3) on which the appellant was convicted and sentenced. I cannot see how the sentence imposed on the murder charge can properly be influenced by subsequent events constituting separate crimes on which separate sentences have been imposed. In my opinion, in our uncertain state of knowledge of the circumstances in which the appellant killed the deceased, we have no warrant for the imposition of a punishment part of such severity. The appropriate punishment part should be in the range that is normal in cases of murder in which there are no unusually aggravating circumstances. In my view, a punishment part of 14 years is sufficient in this case.

Disposal

[45] I propose to your Lordships that we should refuse the appeal against conviction and sustain the appeal against sentence to the extent of substituting a punishment part of 14 years.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Osborne Lord Marnoch	[2011] HCJAC 29 Appeal No: XC431/10 OPINION OF LORD OSBORNE in APPEAL AGAINST CONVICTION by ALAN CAMERON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the Appellant: J Scott, Sol Adv, M Anderson, Adv; Capital Defence, Edinburgh

For the Crown: A Prentice QC (Sol Adv), AD; McKenna, Adv; Crown Agent

29 March 2011

[46] I agree with your Lordship in the chair. There is nothing I wish to add.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Osborne Lord Marnoch	[2011] HCJAC 29 Appeal No: XC431/10 OPINION OF LORD MARNOCH in APPEAL AGAINST CONVICTION by ALAN CAMERON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the Appellant: J Scott, Sol Adv, M Anderson, Adv; Capital Defence, Edinburgh

For the Crown: A Prentice QC (Sol Adv), AD; McKenna, Adv; Crown Agent

29 March 2011

[47] I agree entirely with your Lordship in the Chair and have nothing to add.