Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 5

HCA/2014/4470/XC

Lord Justice Clerk

Lady Dorrian

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION

by

ALAN PETER HUMPHREY

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Party

Respondent: McSporran AD; the Crown Agent

16 December 2015

Introduction
[1]        On 21 October 2014, after an 18 day trial at the High Court in Glasgow, the appellant was unanimously convicted, in the following terms:

“(6)      on 21 February 2014 at ... Quarrywood Avenue, Glasgow you ... did assault Angela Humphrey, your wife, residing there, repeatedly punch and kick her on the head and body, repeatedly stamp on her head, otherwise inflict blunt force injuries on her head and body and seize hold of her neck and compress same and you did murder her”.

There had been six other charges on the indictment, notably four charges of assault against the deceased, one of threatening behaviour and one of malicious damage of clothing on the same date as the murder.  The Crown withdrew these ancillary charges in advance of the jury’s deliberations.  The appellant was sentenced to life imprisonment, with a punishment part of 19 years. 

[2]        Under reference to nine separate examples, the contention in the Note of Appeal, which was lodged on 14 January 2015, was that a miscarriage of justice had occurred because of the terms of the trial judge’s directions.  These, it is alleged:

“Unnecessarily rehearsed the evidence in such a way as to give emphasis to the Crown case and to give the impression that the defence did not warrant the same consideration.  The ... judge also made unnecessary comments in relation to the defence approach which gave the impression of disapproval or criticism.  The overwhelming impression left with the jury was that there was clear evidence against the accused which had received no adequate response.  This resulted in a cumulative final effect of a charge which left the impression of an unbalanced approach and, in any event, the assessment of the evidence was a task for the jury which did not require rehearsal from the ... judge”.

Detailed criticisms of the charge then followed.  The court was informed by the appellant that the Note had been drafted by his trial counsel, albeit that, as he also said, counsel had advised him not to appeal for reasons extraneous to its merits. 

[3]        The trial judge produced her report in early course.  Leave to appeal was granted at first sift on 18 February 2015.  A Procedural Hearing was fixed for 29 April, with the written Case and Argument due not less than 7 days in advance of that diet.  Prior to that date, the appellant dismissed his law agents.  Counsel had formed a view on the merits of the appeal and, at the PH, she was granted leave to withdraw from acting.

[4]        At a continued PH on 13 May, the appellant appeared personally, having, he said, been unable to obtain the services of new agents and counsel.  At the next PH on 17 June, counsel had been re-instructed by different agents.  She sought more time to obtain a psychological report on the appellant, to ensure that he was competent to give instructions.  On 4 August, the new agents intimated that they had been dismissed.  However, they did lodge a Case and Argument, drafted by counsel, which intimated that 5 of the original 9 points of criticism were not to be insisted upon.  There is a note in the process that the appellant was seeking to raise matters beyond the scope of the Note of Appeal, but no proposed amendment was ever presented.

[5]        At the PH on 12 August, the appellant again appeared personally.  He maintained that 9 firms of solicitors had declined to take his case.  He had no papers and was illiterate.  The appellant was provided with a set of papers by the clerk of court.  The court fixed 16 December 2015 as the diet for the appeal hearing.  He was told that he required to lodge his own Case and Argument within 6 weeks.  He could continue to seek legal representation but, if he failed to obtain any, he would have to argue his case personally at the appointed diet.  The appellant was also told that, if he wished to advance any new matter, he should make an application to do so “without delay”.  A copy of the relevant court minute was sent to the appellant.

[6]        On the day of the hearing, the appellant appeared personally once more.  No new Case and Argument or any application to amend the grounds of appeal had been lodged.  The appellant mentioned a number of new allegations, which suggested that he had been “set up” by all concerned at his trial (including his own counsel).  The appellant had brought no material with him to court.  He maintained that he had sent a 7 page letter to the court, but a search of the court’s repositories revealed no such letter.  The appellant was told that the court had read all the papers in his appeal, including the judge’s directions to the jury.  He was asked if he wished the court to rule on the matters raised in the Note of Appeal.  He assented to this, but did not elaborate on them.

Evidence
Background
[7]        The trial judge reports that a significant amount of testimony was adduced concerning the prior relationship between the appellant and the deceased.  There was, for example, an episode in June 2012, when the appellant had phoned the deceased’s daughter and asked her to come and remove the deceased from what was her own home or “I am going to kill her.  I’ll end up putting her out of the window”.  The window was on the second floor.  When the family arrived at the house, the deceased’s face was badly swollen.  The deceased had stated that the appellant had tried to strangle her.  A further incident occurred in March 2013, when the deceased’s daughter had arrived at the house to find the deceased bleeding, with cuts and scratches on her face.  The deceased told her that the appellant had tried to kill her, kicked her on the head, dragged her downstairs and out of the close.  He had stamped on the right side of her head, stating “I hope you die you f...g bitch”.

The circumstances surrounding the death
[8]        The deceased and the appellant had been together on the afternoon of Friday 21 February 2014 in the Old Black Bull pub in the Gallowgate.  The appellant had left in a huff.  The deceased had got on a bus at about 4.05pm.  She got off in the Quarrywood Road area at about 4.55pm.  She was seen shortly before 5.00pm staggering around, but walking generally in the direction of her home in Quarrywood Avenue, Barmulloch.  The deceased was not seen again.  Calls from her family made on Saturday 22 February and thereafter went unanswered. 

[9]        “Cell site analysis” was carried out on the appellant’s mobile phone.  This displayed a pattern of travel from an area near Glasgow Green (not far from the Gallowgate) into the Barmulloch area between 4.21 and 5.15pm on the Friday.  The phone remained in the general vicinity of the deceased’s flat between 5.15 and 5.17pm.  The deceased’s phone was also in the Barmulloch area between 4.51 and 5.17pm.  There was no activity on the appellant’s phone between 5.17 and 8.08pm, nor on the deceased’s phone between 5.17 and 9.20am on Saturday 22 February.  The inference was that both phones had been switched off during these periods. 

[10]      At various times on the Friday evening and the Saturday morning, the appellant’s phone remained located in the Barmulloch area, in the vicinity of the deceased’s flat.  At about 9.40am it moved towards Parkhead, which was consistent with CCTV evidence showing a man wearing similar clothing to that of the appellant and carrying a distinctive bag, later identified as belonging to the appellant, making his way southwards at about 8.55, and into Parkhead Cross by 9.07.  This suggested that the appellant had been moving from the deceased’s flat towards his own flat in Balbeggie Street.  The deceased’s phone was located in the Parkhead area between 9.30 and 11.36am.  It was subsequently found at the appellant’s flat.  The inference was that the appellant must have removed the deceased’s phone. 

Admissions
[11]      On Saturday 22 February 2014, Mr and Mrs Bothwell were in the Old Black Bull.  Mr Bothwell said that, during the course of a discussion about the deceased, the appellant had said to him “I think I’ve killed her”.  Mrs Bothwell had earlier suggested that he should go and get the deceased and bring her to the pub.  However, the appellant had replied that he had fallen out with the deceased.  He then said “I think I’ve done something, I don’t know what it is”.  He repeated this on several occasions and appeared depressed and upset.  He had scratches on the side of his face.  He had arrived in the pub at about 5.00pm and left at about 8.00pm, saying that he was going “to disappear”. 

[12]      The trial judge reports that there was extensive cross-examination of the Bothwells, designed to demonstrate that the meeting had occurred on the Friday, rather than the Saturday.  Various suggestions were made about any comments being related to the death of the appellant’s son.  There was cross-examination about Mrs Bothwell’s hearing and the noise caused by televisions in the pub.  There were suggestions that the discussion had occurred on the Sunday, or the Monday or the Tuesday.

Post mortem activities
[13]      The police forced entry to the appellant’s flat and recovered various items of clothing.  There was blood matching that of the deceased on both the cuff of a jacket and the lower leg of jeans.  There were small impact spatter bloodspots on the jeans, consistent with a kick into wet blood or, less likely, a stamp. 

[14]      The pathologist noted some 33 recent injuries, mostly to the head and neck of the deceased, with extensive haemorrhaging around the brain.  There were bilateral fractures of the superior horns of the thyroid cartilage.  Taken together with petechial haemorrhaging, there had possibly been compression of the neck, although the deceased had died as a result of a severe head injury.  The injuries were consistent with repeated blows from punches, kicks, stamps or blows with an unknown object.  There were no defensive injuries; leading to the conclusion that the deceased had been incapable of defending herself when attacked.  There was blood spatter and blood marks on the walls and carpets in the deceased’s flat.  A mark on the right cheek of the deceased had similar spacing to several of the pattern elements present on the left and right boots of the appellant. 

[15]      The appellant was eventually traced to the house of a third party and detained on 3 March 2014.  In the course of a very lengthy police interview, the appellant generally made no comment.  He did at one stage deny involvement.

[16]      There was no defence evidence.

The judge’s charge
[17]      The judge’s directions were given over a two day span.  She began by explaining the division of responsibilities between a judge and jury.  She stressed that it was the jury’s assessment of the evidence and not her’s or counsel’s which was important.  She explained that, when she was making reference to the evidence, this was to put her directions about the law into context.  The judge gave the fundamental directions about onus of proof.  In so doing, she stressed that the appellant did not have to give evidence.  He was entitled, as he had done, to sit in the dock silent and wait for the Crown to prove their case.  No adverse inference could be taken from that.

[18]      The judge proceeded with directions on reasonable doubt and the need for corroboration.  She turned to deal with the evidence which had been led on the charges, the libel for which had been withdrawn.  She directed that this evidence remained relevant to the jury’s consideration of the murder charge. 

[19]      The judge drew attention to the appellant’s denial in his interview with the police, where he had said, and she quoted:

“Can assure you, can assure you it wisnae f...g me.”

This evidence had been led by the Crown and, the judge said, if the jury believed it, or it raised a reasonable doubt about the appellant’s guilt, then he was entitled to be given the benefit of that doubt. 

[20]      The trial judge then turned to specific directions.  She explained the nature of evidence.  She stressed that what was put to a witness in the form of a question containing a proposition was not evidence, unless the witness had agreed with the proposition.  She continued:

“... there may, ... [be] suggestions in the course of cross-examination, such as, well, is it possible that such and such an event  happened on a different date, or suggestions that someone had misheard, or suggestions that something else was said.  ... [A] number of suggestions were also made to the various expert witnesses, ... and witnesses may have conceded that such and such may have been a possibility.  Now that may affect the quality of that evidence, that’s a matter for you, but a concession that something is a possibility is not evidence that it occurred, and its important ... to take that on board.”

[21]      The trial judge required to deal with several aspects of the law of hearsay.  One aspect related to what the appellant was alleged to have said to Mr Bothwell.  She clarified that, what Mr Bothwell had heard from his wife about what the appellant had said, was not evidence against the appellant.  She dealt with the hearsay of various other witnesses before turning to deal with that of the deceased.  She said this:

“... You’ve heard evidence as to what the deceased said about what the accused had done and what he threatened he would do.  You can consider that evidence as evidence that these things actually happened, namely that he did do what ... she said he did ...”.

However, she stressed that the jury required to decide, not only whether the evidence of what the deceased had said was accurate, but also whether the deceased had been telling the truth and was reliable.  If they were satisfied of these elements, then the hearsay became part of the evidence, enabling the jury to attach whatever weight to it as they saw fit.  She continued:

“... but take care with this evidence, because, ... what was said by the deceased was obviously not said on oath and that evidence could not be tested by cross-examination ...  [Y]ou’ve not had the opportunity to observe the deceased ... in the witness box and assess her demeanour, nor have you had the opportunity to assess the credibility and reliability as you have with other witnesses.”

[22]      Turning to the next exception to the prohibition on hearsay, the trial judge referred to the evidence about what the appellant had said to the police.  She said:

“... despite the very lengthy police interview he said very little to the police.  He said in the main, ‘no comment’ ...”.

She emphasised again that the appellant was entitled to make no comment and nothing adverse could be drawn from that. 

[23]      On the second day of the charge, the trial judge spent some time explaining the significance of statements which witnesses had given to the police during the investigation.  She dealt with the significance of a witness adopting a statement and the import of inconsistencies, some of which she described as examples. 

[24]      The trial judge turned to the indictment and explained the nature of the crimes, starting with assault and proceeding to murder.  She stated that intention might be inferred from acts which are proved or from previous threats to kill.  The defence had submitted that lots of people might threaten to kill but not carry out that threat.  Turning to wicked recklessness, the judge explained that it had to be assessed objectively and continued:

“Imagine that you were an observer, watching an attack, depending on what you find is proved has happened would you describe that attack as murderous?  So, that’s what I mean about objective.”

She said that, as she understood it, the Crown case was that the nature of the attack on the deceased involved either an intention to kill or wicked recklessness.  However, the judge stated that, because of the approach taken by the defence in the speech to the effect that culpable homicide was a verdict open to them, she required to define that crime for the jury as well.  She proceeded to do so.

[25]      The trial judge looked at certain aspects of the evidence.  She told the jury how to approach CCTV images.  She dealt with expert evidence and how that might be analysed.  There was the evidence about how the marks found on the face of the deceased might be interpreted.  She continued:

“... the evidence that was spoken about by [the forensic scientist] was evidence of marks found on the face of the deceased which had a similar spacing to several of the pattern elements present on the boots taken from [the appellant].  Of course the witness conceded that another object or item of footwear bearing a pattern element of similar spacing could have caused the marks.  So there is also limitations there, but what the Crown position is, it’s consistent with the position of the Crown.  I don’t think [counsel for the appellant] addressed you on that aspect, but you still have to be satisfied that that is evidence that you have that you can have regard to.”

[26]      The trial judge returned to the question of the function of expert evidence and how it might assist a jury in relation to matters outwith their normal day to day experiences.  If there were reasons why the jury should not accept the expert testimony, then they could ignore it.  She continued, however, as follows:

“... we don’t have any contradictory evidence of alternative opinions or expert conclusions, but in the cross-examination of these witnesses there has ... been some criticism of these witnesses and, also in the defence speech.  It’s legitimate to make those criticisms in the sense that the thrust of the defence submission here is the Crown has not proved its case beyond reasonable doubt, so [the appellant’s counsel] has questioned whether the expert evidence is as strong as the Crown suggest it is.  These are all matters for you.”

[27]      The trial judge provided a summary of the evidence, starting with the appellant’s expressions of intention and the alleged admissions to the Bothwells.  The remaining evidence was “circumstantial”.  There was the evidence from neighbours, which pointed to the time of the assault.  There was the cell site analysis indicating the whereabouts of the phones.  There was the forensic evidence relative to the blood and the pattern mark allegedly caused by the boot.  The CCTV images were being relied on by the Crown.  There was the finding of the deceased’s phone in the flat of the appellant.  There were scratches on the appellant’s face.  The judge repeated her reference to the appellant’s denial of responsibility during the course of his interview and said the following:

“Now, let me turn to the defence.  Now, in the course of my directions on the Crown case you will have seen that I have already dealt with some of the defence points and some of the defence criticisms and comments, and I don’t intend to repeat them.  The thrust of the defence submission is that the Crown has failed to discharge the weighty responsibility of proving this charge of murder beyond reasonable doubt.  And, as I have indicated to you, unless you hold the charge proved beyond reasonable doubt, you must acquit.

            You heard various criticisms of the Crown case, and particularly the opinion evidence.  Reference was made to the limitations of some of the expert evidence.  In essence, the expert evidence can only say what the experts found was consistent with a certain position adopted by the Crown, but it is submitted that none of the scientific evidence or the cell site analysis directly identifies the accused as the assailant.  And ... [the appellant’s counsel] submits that in relation to the cell site analysis you cannot hold the accused’s phone was necessarily in the area of the deceased’s home at the relevant time and, in relation to the DNA analysis, the blood on the accused’s clothing did not necessarily fit with the Crown’s position that the assault was perpetrated by the accused on the evening of 21 February.  There were, no doubt, other criticisms, but I’m trying to summarise as best I can the issues raised by the defence. 

            In essence ... [counsel for the appellant] challenges what interpretation can be made of all of this opinion evidence.  He takes issue with the Crown assessment of the date of the killing; he points to conflicts, in particular, in the [neighbours’] evidence; he submits that there is no direct evidence identifying the accused as a killer.  There is, of course ... no eyewitness to this killing.  Of course, there is the evidence of Mr and Mrs Bothwell about what [the appellant] said to them, and then [counsel for the appellant] goes on to address that evidence, and you heard his criticisms of both the Bothwells, and he submits to you that you should disregard all of that evidence for the reasons that he sets out, and you also have ... the denial of the crime ... [in] the interview.  You are invited to hold that the case is not proved beyond reasonable doubt and you are invited to acquit”.

The judge ends this passage with a reference to the defence submission on culpable homicide.

Ground of appeal
[28]      The central contention was that the judge’s charge was not properly balanced and made unnecessary comments about the defence approach to the case, which gave the impression of criticism.  The particular passages were that: (a) the judge had referred to the evidence on the withdrawn charges as relevant, but had failed to give counterbalancing emphasis to the defence approach to that evidence as, for example, uncorroborated; (b) the judge had erred in her direction about the value of a witness agreeing with a “possibility” that something else might be the case.  If such a direction had been needed, then it ought to have been tempered with an additional one that the possibility of an alternative was important and may provide the basis for a reasonable doubt; (c) the judge had spent too long on hearsay evidence and only a few lines advising caution.  She had not put the defence’s robust criticism of the Bothwells’ evidence to the jury.  She had adversely remarked upon the appellant’s lack of comment during a “very lengthy” interview; (d) the judge’s remarks on persons not implementing threats did not reflect the defence position; (e) the judge had commended the Crown approach to wicked recklessness; (g) (sic) the judge ought not to have suggested to the jury that it was because of the approach taken by the defence that she required to define culpable homicide.  The jury may have taken this to mean that, had the judge been left to her own “decision”, she would not have given this direction; (f) the judge ought not to have highlighted the fact that the defence had not addressed the “footprint evidence”.  The comment could have given the impression that the defence did not found on the criticisms of the evidence “in cross-examination”; (g) (sic) the judge ought not to have commented on the lack of defence evidence.  That might have given the jury the impression that they should have expected there to be alternative expert opinion; and (h) the judge had spent ten pages rehearsing the Crown evidence and only two on the defence case.  In cumulo, these misdirections were material and could have led to a miscarriage of justice. 

Decision
[29]      There is no substance in the complaints about this charge being unbalanced.  Quite the contrary, this was a studied charge in which the trial judge was careful to deal with each and every aspect of the case and the evidence heard at trial.  It is an exemplar for use in a murder case of this type where there is no defence evidence and the line taken by the accused is one of putting the Crown to its proof, rather than building a positive contrary case.  On several occasions, the judge stressed the entitlement of an accused to say nothing and that no adverse inference could be drawn from that.

[30]      The judge made the general point that her comments on the evidence were only to explain the application of the law to the facts.  This necessitated referencing some of the testimony.  Other than when she turned to the Crown and defence cases, she did this without comment on what might persuade the jury to accept or to reject that evidence.  Thus, she explained, as she ought to have done, that the evidence of previous threats on the withdrawn charges was relevant to a consideration of the murder.  

[31]      Much of the criticisms made are of isolated passages whose meaning becomes clear once each is put into its proper context.  The references which the judge made about the relevance of a witness accepting that something was “possible” were entirely merited, especially in the absence of any evidence that the alternative possibility put by counsel was in fact the case.  The judge’s treatment of the different types of hearsay and her clear explanations and examples cannot be faulted.  However many lines of transcript it took up, she gave a clear caution about how to approach such secondary evidence.  The comment about the appellant’s lack of responsiveness at interview was equally merited and her remark about not implementing a threat was in the appellant’s favour.

[32]      There was no commendation of the Crown’s approach to wicked recklessness.  The trial judge gave standard directions on intention and recklessness.  She was able to describe in ordinary language what an “objective” test consisted of.  The directions on culpable homicide were prompted by the defence speech and might otherwise have been omitted, given the savage nature of the attack.  It was appropriate to tell the jury that, notwithstanding the absence of an explanation from the defence, they still needed to examine the footprint evidence in order to gauge its significance.  The reference to the absence of evidence, which contradicted that of the experts, was justified in circumstances where there had been cross-examination of these witnesses along lines which were ultimately not supported by positive evidence. 

[33]      This had been a lengthy trial in which the trial judge decided that she should provide a short summary of the evidence.  She did that.  The evidence was all in the context of the Crown case.  However, the judge balanced that by outlining the salient points of criticism presented by the appellant.  Once more the judge’s approach was faultless.

[34]      The only concern is how leave to appeal came to be given upon such flimsy grounds.  Their diaphanous quality was clearly, and correctly, perceived by counsel in the course of the appeal process.  It is unfortunate that it was missed at the stage of the sift.  The appeal is refused.