Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2014] HCJAC 104

XC124/13

Lord Eassie

Lady Paton

Lady Smith

OPINION OF THE COURT

delivered by LORD EASSIE

in

APPEAL

by

PAUL DOUGLAS DEENEY

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Paterson, Solicitor Advocate;  Paterson Bell

Respondent:  Stewart QC, AD;  Crown Agent

3 October 2014

Introductory
[1]        On 18 February 2013, at a sitting of the High Court of Justiciary in Glasgow, the appellant was convicted after trial of a charge of murder.  The libel was in these terms:

“On 28 May 2012 at 88 Cowal Place, Dunoon you Paul Douglas Deeney did, whilst gloved, assault Mark Anthony Tonner Osborne also known as Mark McGauchie, then residing there and did repeatedly strike him on the body with a knife or similar instrument to his severe injury and you did murder him.”

[2]        Three grounds of appeal against that conviction are advanced[1].  Each relates to the directions which the judge presiding at the trial gave in his charge to the jury.  By way of a brief description, they may be listed as:

(1)        the directions on prior statements;

(2)        the directions on self-defence;  and

(3)        the directions on expert evidence.

The appellant also appeals against the length of the punishment part selected by the trial judge when he imposed sentence;  but the court is presently concerned only with the appeal against conviction.

[3]        Prior to the trial, the appellant lodged a special defence of self-defence and at the trial the appellant gave evidence in support of that defence.

[4]        The circumstances surrounding the offence which are described by the trial judge in his report may be briefly summarised as follows.  The appellant and the deceased were  known to each other and both lived in Dunoon.  The appellant lived with his girlfriend Nicole Larese.  Seemingly some damage had been caused maliciously to the house which the appellant and Nicole Larese occupied and on the evening of the crime libelled the appellant received information that the person responsible for the commission of that damage was the deceased.  That information angered the appellant.  The appellant changed into dark clothing, took a knife from a drawer in the kitchen, and then proceeded to the house of the deceased, Mark McGauchie.  The evidence established that the deceased died shortly thereafter while making an emergency 999 call from the telephone in the living room of his house.  He had suffered wounds, one of which was a stab wound which had penetrated an artery leading to his heart.

[5]        In the course of the evidence which the appellant gave in support of the special defence that he had acted in self-defence the appellant stated that he had spoken to the deceased on the telephone about the damage to his property.  He said that he could tell that the deceased was angry, that the deceased had “taken something” (ie drugs) and that he knew from previous experience that this made the deceased “a different person”.  The appellant decided to speak with the deceased in person.  He changed his clothing, but said that he did not know why he did so.  He put on gloves, but gave no explanation for doing so.  The appellant said that he took a knife from a drawer in the kitchen and placed it in the waistband of his trousers;  again, he did not explain why he did that.  The appellant’s evidence continued to the effect that he then cycled to the deceased’s house and that he entered the kitchen through the open back door.  He testified that he was immediately faced with the deceased, who was running towards him from the living room with a knife.  The appellant stated that he struggled with the deceased and that the deceased tried to strike him on the face with the knife.  The appellant grabbed the deceased’s head with his left hand and removed his own knife from his waistband with his right hand.  He and the deceased both fell to the floor and during the ensuing struggle the appellant used his knife to stab the deceased.  He accepted that the deceased had let go of the knife he was using during the course of the struggle although he did not know the stage at which this had occurred.  The appellant then left the locus and returned home.  He accepted that he cleaned himself with Ms Larese’s help and that he disposed of his clothing and the weapon.  The appellant thus accepted having fought with – and having inflicted the fatal wound upon – the deceased;  however, he maintained that he had stabbed and injured the deceased in self-defence.

[6]        There was scientific evidence given by forensic scientists linking the appellant to the homicide.  However, an important witness in the Crown case was the appellant’s girlfriend Nicole Larese.  In short summary, she gave evidence that on the night on which Mr McGauchie was killed the appellant had become angry on receiving the information about Mr McGauchie’s being the perpetrator of the damage to the house which she and the appellant occupied;  that the appellant then changed into dark clothing, armed himself with a knife and left their home to go, she presumed, to the house of the deceased.  She further testified that a short time later the appellant returned to their house.  When he returned his clothing was soiled with blood.  The appellant removed the soiled clothing, packed it into plastic bags and then took the bags to a “wheelie” bin outside a house a little distance away.

Ground 1:  Directions on prior statements

[7]        The context for this ground of appeal lies in certain statements noted by police officers in interviews with Ms Nicole Larese.  It appears from the trial judge’s supplementary report to this court that a number of such interviews took place.  The police officers’ notes of two of those interviews were put to the witness in the course of her examination in chief, seemingly to refresh her memory.  We were advised that some five or so matters of detail which she could not recollect were thus elucidated.  No objection was taken by defence counsel.  However, in his cross-examination of Ms Larese, trial counsel for the appellant invoked, as a prior inconsistent statement, the police notes of their first interview of the witness.  In that interview the witness was noted as having given an account exculpatory of the appellant’s having had any involvement in the death of the deceased.  The witness, Ms Larese, accepted in her evidence that she had given such an initial account;  but she also said that it had been an untruthful account.

[8]        The directions given by the trial judge respecting the evidential status of hearsay notes or accounts of prior statements said to have been made by a witness are confined to this passage [2] :

“Now, in this case, there are a number, I think, three other features about the evidence about which I should give you instructions.  First, we’ve heard police statements or at least part of police statements of a number of witnesses read out and I’m sure you’ll remember that.  You can only accept the material you heard from these police statements as evidence in the case if the witness accepted what was said in them in this court”.

[9]        The principal complaint advanced by counsel for the appellant in respect of this ground is, essentially, that such a direction was incomplete and inadequate.  In particular the singular direction given by the trial judge did not address at all the status of hearsay evidence of a prior, inconsistent statement as potentially reflecting on the credibility or reliability of the testimony of the witness, notwithstanding that a line of cross-examination had been pursued with the witness Nicole Larese on the basis that she had given such a prior inconsistent statement in the shape of her first interview with the police.  It mattered not that the witness accepted in evidence that she had lied on that occasion;  the fact of her having given inconsistent accounts was something to be considered by the jury as, in itself, potentially demonstrating unreliability in her testimony.

[10]      In his response the advocate depute acknowledged that directions on the approach to a prior inconsistent statement by a witness would have been normal and were absent from the directions given to the jury in this case.  For our part, we agree that the treatment of the status of prior hearsay statements provided by the trial judge in his charge is incomplete.  As a facet of that lack of completeness, the direction which was given is not wholly accurate in the respect that it appears to confine the jury to having regard only to that which had been accepted by a witness and excludes the jury taking into account, for any purpose, any prior conflicting statement.  However, notwithstanding those accepted deficiencies in the directions given to the jury on this topic, we also agree with the submission of the advocate depute that it cannot be said that in this case the deficiencies give rise to a miscarriage of justice.

[11]      We reach the conclusion that no miscarriage of justice has thus arisen for two principal reasons.  First, the witness – Ms Larese - accepted that what she had said initially to the police was inconsistent with her evidence;  and that she had lied to the police.  So it was plain to the jury that the witness had not always been truthful.  But secondly, and more importantly, the account given by the appellant in his evidence to the jury coincided in very large measure with the evidence given in court by Nicole Larese.  Mr Paterson, the solicitor advocate for the appellant, was not able to point to any significant aspect of the testimony of Ms Larese which was materially inconsistent with, or otherwise undermined, the evidence of the appellant.  And, of course, he alone, was able to speak to what had occurred when he was in the house of the deceased.

[12]      While the principal focus of this branch of the argument for the appellant was on Ms Larese’s prior inconsistent statement, Mr Paterson also criticised the trial judge’s directions respecting the acceptance by a witness of the content of a particular statement of which hearsay evidence might be led.  The jury ought, he submitted, to have been directed in express terms that it was for them to decide whether the witness had, in evidence, properly adopted the reported statement by agreeing that the reported statement was indeed an accurate reflection of what the witness had said;  and that it was also the truth.  While that may no doubt be a proper analysis, it is in our view of no practical significance in the present case.  First, the trial judge gave what might be described as a “collapsed” version of the desiderated directions.  Secondly, the circumstances of the case were such that the appellant’s solicitor advocate could not submit that at the trial there was any live issue of any materiality as regards the few matters of detail of which Ms Larese had been reminded in her examination in chief by her attention having been brought to bear upon the two statements noted by the police.  We therefore consider that, also as regards this subsidiary submission, it cannot be said that there has been any misdirection productive of any miscarriage of justice.

Ground 2:  The directions on self-defence
[13]      In relation to the special defence that the appellant had acted in self-defence, the trial judge said in the course of his charge to the jury[3]:

“Now, because the defence, the special defence, is one of self-defence, I have to tell you about self-defence and the concept of self-defence is a matter of law.  In our law, if a person is attacked or is in reasonable fear of attack, he is entitled deliberately to use such force as is needed to ward off that attack.  So, the accused wouldn’t be guilty of the crime now charged if he acted in self-defence.  He could be acquitted.  Now this could happen if and only if each of three conditions is satisfied.” [emphasis added]

The trial judge then described, in terms to which no objection is taken, the three ingredients involved in the concept of self defence namely, put very shortly, (a) belief in immediate danger to life;  (b) lack of means of escape from the attack;  and (c) reasonable proportion in the force used to resist the attack.  The trial judge also included the customary direction respecting allowance for the heat of the moment and the need not to judge the accused’s response too finely.  He then continued[4]:

“If you think that each one of the conditions that I’ve identified has been met, you could hold that the accused had acted in self-defence and therefore acquit him of this charge of murder.” [emphasis added]

[14]      Two criticisms of these directions were advanced by the solicitor advocate for the appellant.

[15]      The first of those criticisms was that the last sentence of the first excerpt from the judge’s charge which we have quoted, by its reference to the need to satisfy the three conditions, and the similar reference to meeting the conditions in the second excerpt, were both liable to convey to the jury the impression that there was an onus on the defence to establish those matters, notwithstanding that earlier[5] the trial judge had given directions that the special defence did not place any burden of proof on the defence.

[16]      We do not consider that there is any merit in this, the first, criticism.  As the court has observed on numerous occasions, the charge to the jury should be read as a whole and, additionally to that earlier reference, in what might be described as his introduction to self-defence and its necessary components, the trial judge gave [6]this, in our view, clear direction:

“It’s for the Crown to meet that defence [of self-defence] and to satisfy you, beyond reasonable doubt, that it should be rejected.”

[17]      The second criticism made in this branch of the argument centred on the use by the trial judge of the conditional form – “he could be acquitted” – and – “you could hold that the accused had acted in self-defence”.  It was submitted that the language used was liable to convey to the jury the notion that, even if the conditions for a plea of self-defence were satisfied, it was yet a matter for their discretion whether they might uphold that defence.  It ought to have been made clear to the jury that if the prosecutor had not shown, beyond a reasonable doubt, that the tests were not met, the duty of the jury was to acquit and in that respect they had no discretion.

[18]      In the forefront of his response the advocate depute drew to our attention the fact that the passages put  in question by the appellant were in virtually identical terms to certain parts of the directions suggested in paragraph 27.2 of the current edition of the Jury Manual.  The criticism of the trial judge was thus a criticism of the terms of that manual;  but he went on to submit that it was in any event a misplaced criticism in the present case.

[19]      We  have sympathy with the notion that a trial judge should not readily be criticised for adopting a suggestion made in the Jury Manual.  Nevertheless, the Jury Manual is not prescriptive.  It comprises notes for the guidance of judges and, as such, is a useful tool for consultation and consideration by members of the judiciary in Scotland who are faced with the responsibility of giving directions to a jury.  But, that said, it is not a legal authority;  its suggestions are simply suggestions and are not binding;  the ultimate responsibility for independently, and correctly, analysing the legal issues to be addressed and for correctly formulating directions to the jury in appropriate language remains, constitutionally, with the trial judge - the judge’s charge being in every case unique and peculiar to the trial in question.  Experience has shown that on occasion, despite the best endeavours of its authors, the guidance in the Jury Manual may fail to meet what , in practice, is generally required, or what is required by the circumstances of the particular trial. 

[20]      Returning more directly to the charge delivered to the jury in the present case, we acknowledge that there may be some linguistic infelicity in the use in the passages which we have set out above (with added emphasis) of the conditional tense of the modal auxiliary verb – that is to say “could”.  Employing that tense may convey or suggest the notion of permissibility or ability, and thus an area of discretion, even if the jury were satisfied of the existence of all of the ingredients of self-defence.  But that is perhaps to judge the passages through the optic of a grammarian and, particularly in instructions which are delivered orally, we think it unlikely that the members of the audience collectively receiving those instructions would conclude that the judge – and the law – extended to them a measure of discretion.

[21]      Further, that audience would have heard the trial judge also direct them in language incompatible with the existence of any discretion and clearly indicative of the absolute nature of the defence, were its ingredients to have been made out.  Thus in the course of the directions which are recorded on page 19 of the transcript, the trial judge told the jury, regarding the evidence of self-defence:

“If it’s believed, or if it raises a reasonable doubt in your mind, an acquittal must result.  In this case the accused is saying that at the time the crime was committed he was acting in self-defence;  hence he should be acquitted of the charge.”[emphasis added]

And in the course of the first of the passages which we have set out above, the trial judge stated:

“So the accused wouldn’t be guilty of the crime now charged if he acted in self-defence.”[emphasis added]

[22]      In these circumstances, we consider that, when they listened to the trial judge’s directions as a whole, the jury would not have been misled by any arguable infelicity in the use of “could” – as the conditional tense of the modal auxiliary verb - into believing that, were the Crown to have failed to demonstrate that the conditions necessary for the defence of self-defence had not been made out, there was yet some option of discretion available to the jury as to whether they might acquit or convict the appellant.  We accordingly consider that no miscarriage of justice has occurred by reason of any such linguistic infelicity as may be present in the terms of the judge’s charge and the suggestion in the Jury Manual.

Ground 3:  directions on expert witness’ evidence
[23]      The factual or evidential context in which this ground of appeal is advanced is this.  There was agreed toxicological evidence following upon the autopsy of the deceased that, prior to his death, the deceased had ingested a quantity of benzodiazepine – a widely used sedative.  As we have already narrated[7], in his evidence the appellant had testified to the effect that :

“... he could tell that the deceased was angry, that the deceased had “taken something” (i.e. drugs) and that he knew from previous experience that this made the deceased ‘a different person’ ”. 

[24]      At the trial, the defence led evidence from an expert witness, Dr Michael O’Keefe, a senior lecturer in forensic medicine and a police casualty surgeon, that he was aware from the medical and scientific literature that in a small number of cases a paradoxical, aggressive, reaction to the ingestion of benzodiazepine had been recorded.  It appears that, in anticipation of this evidence, the trial advocate depute, having adduced the evidence of a Dr Cooper, a forensic toxicologist, who described the general sedative effects of the drug, asked Dr Cooper whether, in rare cases, a paradoxical reaction might occur.  We were told that her answer was noted as being that she had had a quick look at the literature and did not find it mentioned.  Seemingly, the cross examination of both witnesses was directed principally to their qualifications to express a view on this matter.

[25]      The trial judge gave this direction to the jury[8]:

“You have to judge the quality of each and every one of the witnesses.  You have to decide if their evidence is truthful or untruthful, and if it’s accurate or mistaken;  and in doing that, you’re entitled to look at the content of the witness’s evidence but you’re also entitled to look at their demeanour, that’s the way they give their evidence, and compare what they say with other evidence other witnesses in the case.  You should judge all the witnesses in exactly the same way, whether they are lay people, doctors, scientists, police officers, the accused person himself, whatever.  Judge them all the same way”.

But beyond that, the trial judge gave no directions on expert evidence.  The contention which is advanced on behalf of the appellant is that it was incumbent upon the trial judge to instruct the jury in some detail as to the function of expert evidence and of the need to consider whether the expert witness in question was appropriately qualified to give the expert opinion evidence which he or she had expressed.

[26]      In his supplementary report to this court, the trial judge explains that he considered that there was no need to give any such detailed direction on this topic, since the simple issue was whether in a small number of cases a paradoxical reaction might occur.

[27]      In our opinion the trial judge was entitled to adopt that view.  The scope of any difference between Dr O’Keefe and Dr Cooper was very limited.  All that Dr O’Keefe said was that from his study of the specialist literature, he was aware of reports of a paradoxical reaction to benzodiazepine in a very small number of cases.  All that Dr Cooper said was that her, seemingly quick, search of the literature had not disclosed such a report.  Both Dr O’Keefe and Dr Cooper were thus simply reporting on their respective explorations of the scientific or medical literature which they had chosen to examine.  No articles from that literature were before them.  Neither witness embarked upon any technical discussion of the chemical, pharmacological or physiological reasons wherefore such a paradoxical reaction might, or could, occur in some cases.  Neither expressed, or was invited to express, any opinion on whether the deceased had any attributes identified in any study which might favour or restrict the possibility that the deceased, on the occasion in question, was one of those rare cases.  As already indicated, the witnesses were in effect reporting on the extent and results of their examination of the scientific literature.  While we understand both of the experts to have been cross-examined on their qualifications to give skilled testimony as respects this branch of their evidence, that seems to us to have been to little purpose.  Given the very limited nature of the expert evidence on this matter, we consider that the trial judge was well entitled to consider that the jury would not be assisted by being given directions which would have been apposite in a case in which a jury had been presented with detailed, developed scientific or medical evidence.  Indeed, given that the cross-examination of both skilled witnesses was primarily concerned with their professional qualifications, it appears to us – for what it may be worth - that it might have been to the disadvantage of the defence were the trial judge to have directed the jury to consider that cross-examination on qualification since Dr Cooper was a forensic toxicologist, whereas Dr O’Keefe was, on the face of matters, a generalist in forensic medicine.  That is just such a matter as a trial judge has to weigh up in the exercise of charging the jury in the particular circumstances of the trial. 

[28]      Accordingly, we conclude that this criticism of the instructions given by the trial judge to the jury is lacking in merit.

Decision
[29]      In inviting us to quash the conviction on the basis that a miscarriage of justice had occurred, Mr Paterson submitted that the court should not approach the appeal on the simple basis of considering whether in respect of each discrete ground of appeal a miscarriage of justice had occurred.  It was necessary to look at the appeal as a whole and to consider whether, cumulatively, the criticisms of the trial judge’s directions which had been canvassed amounted to a miscarriage of justice.  We have borne that invitation in mind but, even adopting that cumulative or collective approach, we are not persuaded that any miscarriage of justice has been demonstrated.  Accordingly, for all of the reasons which we have given, we must refuse the appeal against conviction.

[30]      As indicated earlier, the appellant also appeals against sentence.  We shall therefore continue the case for a hearing on that appeal.