Appellant:  Burns QC, et Wilson;  JP Mowberry, Glasgow

Respondent:  P Ferguson QC, AD;  Crown Agent

25 January 2012

Introduction

[1]       On 11 March 2005, after a six-week trial at the High Court in Edinburgh, the appellant was convicted of multiple charges arising out of or in connection with the death of his cousin Charles McKay.  These included a murder charge (charge 11), on which the jury by a majority returned a guilty verdict in these terms:

            “… on 18 and 19 March 2003 at 23 East MacKenzie Park, Inverness, you did assault Charles Walter McQuarrie McKay, formerly residing there, and whilst he was intoxicated with alcohol and … medication did force his head into a pillow, smother him and did murder him”.

In addition, the appellant was convicted of (i) defrauding the deceased of substantial sums of money over the preceding nine months or so (charges 1, 3, 5, 6 and 8);  (ii) attempted fraud in connection with a purported will recently created in the deceased’s name (charge 10);  (iii) credit offences contrary to the Bankruptcy (Scotland) Act 1985, section 67(9) (charges 2 and 7);  and (iv) in various ways attempting to defeat the ends of justice following the death of the deceased, notably by moving the body and disposing of the pillow said to have been used (charge 12).

[2]       As confirmed by senior counsel at the outset of his submissions, the present appeal was limited to the appellant’s conviction for murder (charge 11) and consequentially for attempting to defeat the ends of justice (charge 12).  However, although the court was not being invited to quash any of the other charges, their potential impact on the murder conviction might still be a relevant consideration.  From the outset, this was a complex and highly unusual case.  Where the deceased had been found dead, with overt facial injuries, at the bottom of a flight of stairs in his home, an inference of head injury might not have seemed unreasonable.  In addition, extraordinarily high levels of alcohol and dihydrocodeine in his system might of themselves have been fatal in another individual.  Yet it took many months for a post-mortem report to be issued, and thereafter the Crown advanced the charge of murder by inter alia smothering although the pillow in question was never traced.  To a material extent that charge depended on the Crown being able to exclude head injury or any other ready explanation for the deceased’s death.

[3]       Under grounds of appeal 1 and 2, the primary focus of the appeal was on the existence of fresh evidence not heard at the original trial.  There was, it was said, a reasonable explanation for that state of affairs, pursuant to section 106(3)(a), (3A) and (3C) of the Criminal Procedure (Scotland) Act 1995, and if the evidence in question had been available in 2005 there was every prospect that the jury would have returned a different verdict.  In particular the appellant relied on expert neuropathology evidence from a Dr Safa Al-Sarraj which, for the first time, offered moderate head injury as a positive contributing cause of the deceased’s death — that is, as a direct alternative to smothering.  In addition, reliance was placed on the consequent ability of Dr Marjorie Turner (formerly Black) who, as a forensic pathologist, had given expert evidence for the defence at the trial, to change her opinion as to cause of death from “unascertained” to “head injury (in keeping with fall) and dihydrocodeine and alcohol intoxication, with potential contributory cause fatty change of the liver”.  At the time of the trial, by contrast, the Crown neuropathologist Dr James Mackenzie had effectively discounted head injury as having any bearing on the death of the deceased;  Dr David Doyle, the neuropathologist properly instructed by the defence, had (mistakenly, as it turned out) attributed death to cervical spinal trauma, thus distracting his own attention from head injury;  and in these circumstances Dr Black (as she then was) had been disabled from expressing the positive exculpatory opinion as to cause of death which she now held. 

[4]       The appellant’s subsidiary grounds of appeal respectively alleged (ground 4) a failure by the defence solicitor, contrary to instructions, to engage a fingerprint expert where certain key documents relative to the fraud charges bore unidentified finger and palm imprints which might have belonged to the deceased;  and (ground 6) the inadmissibility of a purported witness statement taken from the appellant by police officers on 22 March 2003 when (i) he was already a suspect;  (ii) being within the confines of a police station, he felt under compulsion to respond;  (iii) he was given no prior opportunity to consult a solicitor;  and (iv) no caution was administered before questions were asked.  As we understood the position, grounds of appeal 3 and 5 were no longer advanced.

Grounds 1 and 2:  Fresh evidence

(a)       Legal background

[5]       So far as relevant for present purposes, section 106 of the 1995 Act provides as follows:

            “…

(3)          By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on —

(a)          subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings …

(3A)       Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard.

…

(3C)       Without prejudice to subsection (3A) above, where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence —

1. which is —
   1. from a person … who gave evidence at the original proceedings;and

(b)          which is different from, or additional to, the evidence so given,

it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.

(3D)       For the purposes of subsection (3C) above, ‘independent evidence’ means evidence which —

1. was not heard at the original proceedings;
2. is from a source independent of the person referred to in subsection (3C) above;and

(c)          is accepted by the court as being credible and reliable.”

[6]       In Campbell & Steele v HM Advocate 1998 JC 130, this court stressed the necessity for a reasonable explanation to justify any admission of fresh evidence, and in Al Megrahi v HM Advocate 2002 JC 99 the Lord Justice General (at para.219) made it clear that even where fresh evidence is admitted the verdict of a jury should not lightly be disturbed.  In that latter context, the decision of the Supreme Court in Fraser v HM Advocate 2011 SLT 515 was strongly to the effect that in “fresh evidence” as well as “non-disclosure” cases, the test for a miscarriage of justice should be whether, had the relevant new material been available at the trial, there was a real possibility that the jury would have arrived at a different verdict.  This test was previously affirmed by the Supreme Court in McInnes v HM Advocate 2010 SLT 266, a non-disclosure appeal, especially in the judgment of Lord Hope at paras. 20 and 24. 

(b)       The evidential hearing

[7]       In the course of this appeal we heard evidence from a number of witnesses.  Dr Al-Sarraj, an experienced consultant neuropathologist, confirmed how axonal injury within the brain was detectable with the aid of immunocytochemical techniques.  In particular, the presence of beta amyloid precursor protein (“bAPP”), a substance naturally released when axonal damage occurred, could be revealed under the microscope once targeted and stained with a relevant antibody.  bAPP staining techniques had been available for many years.  However, following the commercial production of a more sensitive clone of a commonly-used antibody, coupled with increasing sensitivity of the subsequent retrieval procedures, Dr Al-Sarraj and others had in 2007 published a paper, in a respected peer-reviewed journal, to reflect the latest thinking on the subject.  The main thrust of this paper had been to show that bAPP could now reliably be detected around 35 minutes after trauma, as opposed to the 1-2 hours previously thought possible.  More generally, however, the paper had underlined the greater sensitivity and clarity with which axonal injury could now be identified.

[8]       In broad terms, these matters were not in dispute.  The two consultant neuropathologists led in evidence by the Crown, Drs Mackenzie and Smith, agreed that the sensitivity and clarity of bAPP detection, and thus the potential for identifying axonal injury within the brain, had improved to some degree since the date of the appellant’s trial.  As it happened, Dr Mackenzie had all along used a different antibody from Dr Al-Sarraj, but he too was conscious that greater clarity could now be attained. 

[9]       Where the neuropathologists differed was in their interpretation of the slides taken from different areas of the deceased’s brain.  Dr Mackenzie adhered to the evidence which he had given at the trial, to the effect that axonal injury (i) was scattered, occasional and very mild, and (ii) (when considered alongside microglial cell changes) might have occurred some considerable time prior to the deceased’s death.  The initiating trauma was unlikely to have led to unconsciousness, and could have had no bearing on the death.  Supported by Dr Smith, Dr Mackenzie was satisfied that examining slides from key areas of the brain, notably the corpus callosum and internal capsule, had given him a sufficient picture (consistent with normal practice) of the nature and general distribution of axonal damage.  At the other end of the spectrum, Dr Al-Sarraj argued that his examination of slides taken from a greater number of areas of the brain demonstrated more widespread axonal damage.  In addition, according to Dr Al-Sarraj, the axonal damage fell to be categorised as “multifocal”, and thus as corresponding with a moderate head injury productive of clinically impaired consciousness at a level of between 9 and 12 on the Glasgow Coma Scale.  Furthermore, evidence of early ischaemic changes (which neither Dr Mackenzie nor Dr Smith had seen) suggested a maximum post-traumatic survival time for the deceased of 2-4 hours, whereas (in agreement with Dr Smith) a cautious approach must be taken to the interpretation of micoglial cell changes which might not stem from head injury at all.

[10]     While Dr Mackenzie expressed strong reservations as to the legitimacy of correlating microscopic slide appearances with clinical levels of consciousness under the Glasgow Coma Scale, Dr Smith went even further in challenging the ability of either Dr Mackenzie or Dr Al-Sarraj to draw a legitimate parallel between microscopic slide appearances and a patient’s clinical condition.  In his view, the absence of post traumatic axonal “retraction balls” or oesinophilic spheroids would rule out a survival time in excess of around 16 hours.  Otherwise both the severity and the timing of the deceased’s head injury must be regarded as “uncertain”.  Importantly, however, Dr Smith was prepared to acknowledge that the deceased’s traumatic axonal injury could have resulted in coma. 

[11]     Perhaps the most significant evidence came from the forensic pathologist Dr Turner (formerly Black), who had already testified at the trial, and in addition from an experienced Home Office pathologist, Dr Lawler.  For their purposes, microscopic neuropathological findings provided important specialist input into the much wider exercise which forensic pathologists required to undertake, namely that of examining all available evidence (including post-mortem signs of bruising, bleeding, swelling, lacerations and other injuries) with a view to certification of a probable cause of death.  In 2005, Dr Black (as she then was) had been unable to express any more positive conclusion than that the cause of the deceased’s death should be regarded as “unascertained”.  In part, this was because the Crown’s neuropathological evidence came from Dr Mackenzie, who confidently discounted head injury, and in part also it was because the defence neuropathologist, Dr Doyle, had erroneously focused on damage to the cervical spine which turned out to be a post-mortem artefact.  Now, by contrast, Dr Mackenzie’s evidence was contradicted by Dr Al-Sarraj and indeed by Dr Smith;  Dr Doyle’s evidence was out of the picture;  Dr Al-Sarraj’s views appeared to benefit from a more extensive examination of the deceased’s brain tissue as well as from detection techniques which had improved since the date of the trial;  and in all the circumstances it was  now possible for Dr Turner, as a forensic pathologist, to advance head injury as a positive contributing cause of death.  Such evidence simply was not available at the time of the trial, and Dr Lawler confirmed that in the light of materially altered circumstances he fully endorsed Dr Turner’s revised opinion.

[12]     For her part Dr Rosslyn Rankin, the forensic pathologist who carried out the post-mortem examination of the deceased’s body in 2003, adhered to the evidence which she had given at the trial.  In her view there were no signs of any significant trauma to the head;  the skull was intact;  macroscopically the deceased’s brain appeared entirely normal, with no bruising, swelling or bleeding;  there was no sign of coma;  injuries unusually localised to the mouth and chin, together with isolated petechial haemorrhages, were suggestive of smothering;  and marks on the deceased’s upper back, neck and head could have been caused by the body being moved after death.  Furthermore, drawing attention to the low level of urine in the bladder, the evidence of a Dr Forrest tended to confirm that the deceased must have been conscious and ambulant no more than an hour or so before he died.

(c)        Discussion

[13]     Although there were obvious conflicts affecting both major branches of the evidence before us, we do not consider ourselves to be in any position to resolve these conflicts as the Advocate Depute invited us to do.  In particular, although certain parts of his reports were criticised by Drs Mackenzie and Smith, we are unable to conclude that Dr Al-Sarraj was anything other than a reputable and experienced neuropathologist, or that his views and conclusions could not reasonably have been advanced by a person of his qualifications and experience.  On the contrary, bearing in mind that his input was accepted and relied on by Drs Turner and Lawler, both skilled forensic pathologists of considerable standing, we are satisfied that Dr Al-Sarraj’s views and conclusions must be regarded as potentially significant fresh evidence which, for obvious reasons, was not heard at the appellant’s trial in 2005.  In particular, although those representing the appellant had, quite properly, engaged a consultant neuropathologist on behalf of the defence at that stage, an unfortunate error had steered Dr Doyle’s evidence, and consequently the whole defence effort, in quite the wrong direction.  On the evidence before us, moreover, Dr Al-Sarraj’s evidence of head injury was, at least to some degree, based on more sensitive neuropathological techniques which were not professionally validated until some time after the date of the trial.

[14]     More importantly, we are persuaded that Dr Turner’s consequent change of view as to head injury being a likely contributing cause of the deceased’s death must also be regarded as fresh evidence satisfying the statutory requirements in section 106 of the 1995 Act.  Clearly Dr Turner’s present views were not heard by the jury at the trial in 2005, and in our judgment a reasonable explanation for that state of affairs, with independent evidential support from Dr Lawler, has been amply made out.  As it seems to us, the defence efforts in 2005 were materially misdirected in consequence of Dr Doyle’s erroneous concentration on the cervical spine, and given the late discovery of that error there was no realistic opportunity to engage alternative neuropathological input from someone like Dr Al-Sarraj.  In any event, Dr Al-Sarraj’s views and conclusions were, at least to some degree, dependent on the enhanced sensitivity of post-trial detection techniques.  It was therefore impossible for Dr Black, as she then was, to offer the trial jury any positive view regarding cause of death.  And it is only in light of Dr Al-Sarraj’s views and conclusions that, rightly or wrongly, she now feels able to attribute the death to inter alia head injury.

[15]     From here it is but a short step, in our view, to conclude that the test for a miscarriage of justice has been met in this appeal.  Had Dr Al-Sarraj’s neuropathological evidence been available at the trial, in direct contradiction of that given by Drs Mackenzie and Doyle, and had it been open to Dr Black (as she then was) to advance “head injury (consistent with a fall …)”as a positive contributing cause of the death of the deceased, we are satisfied that there would have been a real possibility of the jury returning a different verdict.  The evidence suggestive of suffocation was somewhat circumstantial, and strongly dependent on a process of exclusion;  where the deceased was found dead with overt facial injuries at the bottom of a flight of stairs, the apparent discounting of head injury as a possible contributing cause of death had to be a major component of the Crown case;  by their verdict the jury absolved the appellant of responsibility for the extraordinarily high levels of alcohol and dihydrocodeine in the deceased’s system;  and taking a broad view it seems clear that the evidence of Dr Al-Sarraj, coupled with the very different evidence from Dr Black, would have significantly changed the whole complexion of an already difficult and perplexing case.

[16]     Precisely how the jury would have reacted had such evidence been available is, of course, impossible to say.  Unlike any of the expert witnesses, they had before them all the evidence at the trial, and it would still have been open to them to consider, and if appropriate to draw inferences from, the evidence regarding (i) the appellant’s fraudulent conduct which might soon have come to light;  and (ii) his subsequent disposal of an apparently bloodstained pillow.  Fortunately, however, neither the statute nor the McInnes test requires such a judgment to be made.  For present purposes it is sufficient, in our view, that potentially significant fresh evidence is available;  that a reasonable explanation for its absence at the trial has been made out;  and that in all the circumstances we are satisfied that, had the new evidence been available in 2005, there would have been a real possibility of a different verdict being returned.

(d)       Conclusion

[17]     For all of these reasons, we are persuaded that a miscarriage of justice has occurred in this case, and that the appellant’s conviction on charge 11, and consequently on charge 12, must now be quashed.

Ground 4:  Fingerprints

Ground 6:  Admissibility of interview
[18]     Since the appeal has been sustained on “fresh evidence” grounds, it is no longer necessary for us to deal with these subsidiary challenges and we say no more about them.

Determination
[19]     In the result, the appeal is sustained on grounds 1 and 2 alone, and in that regard the appellant’s conviction on charges 11 and 12 is quashed.

Appellant:  Burns QC, et Wilson;  JP Mowberry, Glasgow

Respondent:  P Ferguson QC, AD;  Crown Agent

25 January 2012

Introduction

[1]       On 11 March 2005, after a six-week trial at the High Court in Edinburgh, the appellant was convicted of multiple charges arising out of or in connection with the death of his cousin Charles McKay.  These included a murder charge (charge 11), on which the jury by a majority returned a guilty verdict in these terms:

            “… on 18 and 19 March 2003 at 23 East MacKenzie Park, Inverness, you did assault Charles Walter McQuarrie McKay, formerly residing there, and whilst he was intoxicated with alcohol and … medication did force his head into a pillow, smother him and did murder him”.

In addition, the appellant was convicted of (i) defrauding the deceased of substantial sums of money over the preceding nine months or so (charges 1, 3, 5, 6 and 8);  (ii) attempted fraud in connection with a purported will recently created in the deceased’s name (charge 10);  (iii) credit offences contrary to the Bankruptcy (Scotland) Act 1985, section 67(9) (charges 2 and 7);  and (iv) in various ways attempting to defeat the ends of justice following the death of the deceased, notably by moving the body and disposing of the pillow said to have been used (charge 12).

[2]       As confirmed by senior counsel at the outset of his submissions, the present appeal was limited to the appellant’s conviction for murder (charge 11) and consequentially for attempting to defeat the ends of justice (charge 12).  However, although the court was not being invited to quash any of the other charges, their potential impact on the murder conviction might still be a relevant consideration.  From the outset, this was a complex and highly unusual case.  Where the deceased had been found dead, with overt facial injuries, at the bottom of a flight of stairs in his home, an inference of head injury might not have seemed unreasonable.  In addition, extraordinarily high levels of alcohol and dihydrocodeine in his system might of themselves have been fatal in another individual.  Yet it took many months for a post-mortem report to be issued, and thereafter the Crown advanced the charge of murder by inter alia smothering although the pillow in question was never traced.  To a material extent that charge depended on the Crown being able to exclude head injury or any other ready explanation for the deceased’s death.

[3]       Under grounds of appeal 1 and 2, the primary focus of the appeal was on the existence of fresh evidence not heard at the original trial.  There was, it was said, a reasonable explanation for that state of affairs, pursuant to section 106(3)(a), (3A) and (3C) of the Criminal Procedure (Scotland) Act 1995, and if the evidence in question had been available in 2005 there was every prospect that the jury would have returned a different verdict.  In particular the appellant relied on expert neuropathology evidence from a Dr Safa Al-Sarraj which, for the first time, offered moderate head injury as a positive contributing cause of the deceased’s death — that is, as a direct alternative to smothering.  In addition, reliance was placed on the consequent ability of Dr Marjorie Turner (formerly Black) who, as a forensic pathologist, had given expert evidence for the defence at the trial, to change her opinion as to cause of death from “unascertained” to “head injury (in keeping with fall) and dihydrocodeine and alcohol intoxication, with potential contributory cause fatty change of the liver”.  At the time of the trial, by contrast, the Crown neuropathologist Dr James Mackenzie had effectively discounted head injury as having any bearing on the death of the deceased;  Dr David Doyle, the neuropathologist properly instructed by the defence, had (mistakenly, as it turned out) attributed death to cervical spinal trauma, thus distracting his own attention from head injury;  and in these circumstances Dr Black (as she then was) had been disabled from expressing the positive exculpatory opinion as to cause of death which she now held. 

[4]       The appellant’s subsidiary grounds of appeal respectively alleged (ground 4) a failure by the defence solicitor, contrary to instructions, to engage a fingerprint expert where certain key documents relative to the fraud charges bore unidentified finger and palm imprints which might have belonged to the deceased;  and (ground 6) the inadmissibility of a purported witness statement taken from the appellant by police officers on 22 March 2003 when (i) he was already a suspect;  (ii) being within the confines of a police station, he felt under compulsion to respond;  (iii) he was given no prior opportunity to consult a solicitor;  and (iv) no caution was administered before questions were asked.  As we understood the position, grounds of appeal 3 and 5 were no longer advanced.

Grounds 1 and 2:  Fresh evidence

(a)       Legal background

[5]       So far as relevant for present purposes, section 106 of the 1995 Act provides as follows:

            “…

(3)          By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on —

(a)          subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings …

(3A)       Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard.

…

(3C)       Without prejudice to subsection (3A) above, where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence —

1. which is —
   1. from a person … who gave evidence at the original proceedings;and

(b)          which is different from, or additional to, the evidence so given,

it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.

(3D)       For the purposes of subsection (3C) above, ‘independent evidence’ means evidence which —

1. was not heard at the original proceedings;
2. is from a source independent of the person referred to in subsection (3C) above;and

(c)          is accepted by the court as being credible and reliable.”

[6]       In Campbell & Steele v HM Advocate 1998 JC 130, this court stressed the necessity for a reasonable explanation to justify any admission of fresh evidence, and in Al Megrahi v HM Advocate 2002 JC 99 the Lord Justice General (at para.219) made it clear that even where fresh evidence is admitted the verdict of a jury should not lightly be disturbed.  In that latter context, the decision of the Supreme Court in Fraser v HM Advocate 2011 SLT 515 was strongly to the effect that in “fresh evidence” as well as “non-disclosure” cases, the test for a miscarriage of justice should be whether, had the relevant new material been available at the trial, there was a real possibility that the jury would have arrived at a different verdict.  This test was previously affirmed by the Supreme Court in McInnes v HM Advocate 2010 SLT 266, a non-disclosure appeal, especially in the judgment of Lord Hope at paras. 20 and 24. 

(b)       The evidential hearing

[7]       In the course of this appeal we heard evidence from a number of witnesses.  Dr Al-Sarraj, an experienced consultant neuropathologist, confirmed how axonal injury within the brain was detectable with the aid of immunocytochemical techniques.  In particular, the presence of beta amyloid precursor protein (“bAPP”), a substance naturally released when axonal damage occurred, could be revealed under the microscope once targeted and stained with a relevant antibody.  bAPP staining techniques had been available for many years.  However, following the commercial production of a more sensitive clone of a commonly-used antibody, coupled with increasing sensitivity of the subsequent retrieval procedures, Dr Al-Sarraj and others had in 2007 published a paper, in a respected peer-reviewed journal, to reflect the latest thinking on the subject.  The main thrust of this paper had been to show that bAPP could now reliably be detected around 35 minutes after trauma, as opposed to the 1-2 hours previously thought possible.  More generally, however, the paper had underlined the greater sensitivity and clarity with which axonal injury could now be identified.

[8]       In broad terms, these matters were not in dispute.  The two consultant neuropathologists led in evidence by the Crown, Drs Mackenzie and Smith, agreed that the sensitivity and clarity of bAPP detection, and thus the potential for identifying axonal injury within the brain, had improved to some degree since the date of the appellant’s trial.  As it happened, Dr Mackenzie had all along used a different antibody from Dr Al-Sarraj, but he too was conscious that greater clarity could now be attained. 

[9]       Where the neuropathologists differed was in their interpretation of the slides taken from different areas of the deceased’s brain.  Dr Mackenzie adhered to the evidence which he had given at the trial, to the effect that axonal injury (i) was scattered, occasional and very mild, and (ii) (when considered alongside microglial cell changes) might have occurred some considerable time prior to the deceased’s death.  The initiating trauma was unlikely to have led to unconsciousness, and could have had no bearing on the death.  Supported by Dr Smith, Dr Mackenzie was satisfied that examining slides from key areas of the brain, notably the corpus callosum and internal capsule, had given him a sufficient picture (consistent with normal practice) of the nature and general distribution of axonal damage.  At the other end of the spectrum, Dr Al-Sarraj argued that his examination of slides taken from a greater number of areas of the brain demonstrated more widespread axonal damage.  In addition, according to Dr Al-Sarraj, the axonal damage fell to be categorised as “multifocal”, and thus as corresponding with a moderate head injury productive of clinically impaired consciousness at a level of between 9 and 12 on the Glasgow Coma Scale.  Furthermore, evidence of early ischaemic changes (which neither Dr Mackenzie nor Dr Smith had seen) suggested a maximum post-traumatic survival time for the deceased of 2-4 hours, whereas (in agreement with Dr Smith) a cautious approach must be taken to the interpretation of micoglial cell changes which might not stem from head injury at all.

[10]     While Dr Mackenzie expressed strong reservations as to the legitimacy of correlating microscopic slide appearances with clinical levels of consciousness under the Glasgow Coma Scale, Dr Smith went even further in challenging the ability of either Dr Mackenzie or Dr Al-Sarraj to draw a legitimate parallel between microscopic slide appearances and a patient’s clinical condition.  In his view, the absence of post traumatic axonal “retraction balls” or oesinophilic spheroids would rule out a survival time in excess of around 16 hours.  Otherwise both the severity and the timing of the deceased’s head injury must be regarded as “uncertain”.  Importantly, however, Dr Smith was prepared to acknowledge that the deceased’s traumatic axonal injury could have resulted in coma. 

[11]     Perhaps the most significant evidence came from the forensic pathologist Dr Turner (formerly Black), who had already testified at the trial, and in addition from an experienced Home Office pathologist, Dr Lawler.  For their purposes, microscopic neuropathological findings provided important specialist input into the much wider exercise which forensic pathologists required to undertake, namely that of examining all available evidence (including post-mortem signs of bruising, bleeding, swelling, lacerations and other injuries) with a view to certification of a probable cause of death.  In 2005, Dr Black (as she then was) had been unable to express any more positive conclusion than that the cause of the deceased’s death should be regarded as “unascertained”.  In part, this was because the Crown’s neuropathological evidence came from Dr Mackenzie, who confidently discounted head injury, and in part also it was because the defence neuropathologist, Dr Doyle, had erroneously focused on damage to the cervical spine which turned out to be a post-mortem artefact.  Now, by contrast, Dr Mackenzie’s evidence was contradicted by Dr Al-Sarraj and indeed by Dr Smith;  Dr Doyle’s evidence was out of the picture;  Dr Al-Sarraj’s views appeared to benefit from a more extensive examination of the deceased’s brain tissue as well as from detection techniques which had improved since the date of the trial;  and in all the circumstances it was  now possible for Dr Turner, as a forensic pathologist, to advance head injury as a positive contributing cause of death.  Such evidence simply was not available at the time of the trial, and Dr Lawler confirmed that in the light of materially altered circumstances he fully endorsed Dr Turner’s revised opinion.

[12]     For her part Dr Rosslyn Rankin, the forensic pathologist who carried out the post-mortem examination of the deceased’s body in 2003, adhered to the evidence which she had given at the trial.  In her view there were no signs of any significant trauma to the head;  the skull was intact;  macroscopically the deceased’s brain appeared entirely normal, with no bruising, swelling or bleeding;  there was no sign of coma;  injuries unusually localised to the mouth and chin, together with isolated petechial haemorrhages, were suggestive of smothering;  and marks on the deceased’s upper back, neck and head could have been caused by the body being moved after death.  Furthermore, drawing attention to the low level of urine in the bladder, the evidence of a Dr Forrest tended to confirm that the deceased must have been conscious and ambulant no more than an hour or so before he died.

(c)        Discussion

[13]     Although there were obvious conflicts affecting both major branches of the evidence before us, we do not consider ourselves to be in any position to resolve these conflicts as the Advocate Depute invited us to do.  In particular, although certain parts of his reports were criticised by Drs Mackenzie and Smith, we are unable to conclude that Dr Al-Sarraj was anything other than a reputable and experienced neuropathologist, or that his views and conclusions could not reasonably have been advanced by a person of his qualifications and experience.  On the contrary, bearing in mind that his input was accepted and relied on by Drs Turner and Lawler, both skilled forensic pathologists of considerable standing, we are satisfied that Dr Al-Sarraj’s views and conclusions must be regarded as potentially significant fresh evidence which, for obvious reasons, was not heard at the appellant’s trial in 2005.  In particular, although those representing the appellant had, quite properly, engaged a consultant neuropathologist on behalf of the defence at that stage, an unfortunate error had steered Dr Doyle’s evidence, and consequently the whole defence effort, in quite the wrong direction.  On the evidence before us, moreover, Dr Al-Sarraj’s evidence of head injury was, at least to some degree, based on more sensitive neuropathological techniques which were not professionally validated until some time after the date of the trial.

[14]     More importantly, we are persuaded that Dr Turner’s consequent change of view as to head injury being a likely contributing cause of the deceased’s death must also be regarded as fresh evidence satisfying the statutory requirements in section 106 of the 1995 Act.  Clearly Dr Turner’s present views were not heard by the jury at the trial in 2005, and in our judgment a reasonable explanation for that state of affairs, with independent evidential support from Dr Lawler, has been amply made out.  As it seems to us, the defence efforts in 2005 were materially misdirected in consequence of Dr Doyle’s erroneous concentration on the cervical spine, and given the late discovery of that error there was no realistic opportunity to engage alternative neuropathological input from someone like Dr Al-Sarraj.  In any event, Dr Al-Sarraj’s views and conclusions were, at least to some degree, dependent on the enhanced sensitivity of post-trial detection techniques.  It was therefore impossible for Dr Black, as she then was, to offer the trial jury any positive view regarding cause of death.  And it is only in light of Dr Al-Sarraj’s views and conclusions that, rightly or wrongly, she now feels able to attribute the death to inter alia head injury.

[15]     From here it is but a short step, in our view, to conclude that the test for a miscarriage of justice has been met in this appeal.  Had Dr Al-Sarraj’s neuropathological evidence been available at the trial, in direct contradiction of that given by Drs Mackenzie and Doyle, and had it been open to Dr Black (as she then was) to advance “head injury (consistent with a fall …)”as a positive contributing cause of the death of the deceased, we are satisfied that there would have been a real possibility of the jury returning a different verdict.  The evidence suggestive of suffocation was somewhat circumstantial, and strongly dependent on a process of exclusion;  where the deceased was found dead with overt facial injuries at the bottom of a flight of stairs, the apparent discounting of head injury as a possible contributing cause of death had to be a major component of the Crown case;  by their verdict the jury absolved the appellant of responsibility for the extraordinarily high levels of alcohol and dihydrocodeine in the deceased’s system;  and taking a broad view it seems clear that the evidence of Dr Al-Sarraj, coupled with the very different evidence from Dr Black, would have significantly changed the whole complexion of an already difficult and perplexing case.

[16]     Precisely how the jury would have reacted had such evidence been available is, of course, impossible to say.  Unlike any of the expert witnesses, they had before them all the evidence at the trial, and it would still have been open to them to consider, and if appropriate to draw inferences from, the evidence regarding (i) the appellant’s fraudulent conduct which might soon have come to light;  and (ii) his subsequent disposal of an apparently bloodstained pillow.  Fortunately, however, neither the statute nor the McInnes test requires such a judgment to be made.  For present purposes it is sufficient, in our view, that potentially significant fresh evidence is available;  that a reasonable explanation for its absence at the trial has been made out;  and that in all the circumstances we are satisfied that, had the new evidence been available in 2005, there would have been a real possibility of a different verdict being returned.

(d)       Conclusion

[17]     For all of these reasons, we are persuaded that a miscarriage of justice has occurred in this case, and that the appellant’s conviction on charge 11, and consequently on charge 12, must now be quashed.

Ground 4:  Fingerprints

Ground 6:  Admissibility of interview
[18]     Since the appeal has been sustained on “fresh evidence” grounds, it is no longer necessary for us to deal with these subsidiary challenges and we say no more about them.

Determination
[19]     In the result, the appeal is sustained on grounds 1 and 2 alone, and in that regard the appellant’s conviction on charges 11 and 12 is quashed.