DAVID LILBURN AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 50
XC652/13
Lord Justice Clerk
Lady Dorrian
Lord Bracadale
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
following upon a referral from the Scottish Criminal Cases Review Commission
by
DAVID LILBURN
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Jackson QC, CM Mitchell; Paterson Bell (for Messrs Black & Markie, Alloa)
Respondent: Edwards AD; the Crown Agent
17 June 2015
Introduction
[1] The issue is whether a miscarriage of justice has occurred as a result of the appellant’s conviction, at Glasgow High Court on 18 July 2008, for the murder of his wife by stabbing her 86 times on 29 July 2007 at their home in Paisley. The appeal proceeds upon a contention, as set out in the Note of Appeal, that:
“there has been a miscarriage of justice on the basis of fresh evidence that at the relevant time … his responsibility was diminished …
there now exists fresh evidence, namely the opinions of Dr Black, Dr Clark, Dr Pasupuleti, Dr Baird and Dr Bartlett, which are based on observations of the Appellant post conviction as an inpatient in the State Hospital”.
The appellant’s defence at trial had been one of diminished responsibility. However, it is explained that, although the defence expert psychiatrist, namely Dr Sirkanth Nimmagadda, supported such a plea:
“the other medical evidence was such that the Jury rejected the ‘black shadow’ account and may well have formed an adverse view of the Appellant’s credibility and reliability”.
The reference to the black shadow is to an apparition which, the appellant testified, had told him telepathically to kill the deceased.
[2] There had been, the Note of Appeal continues, lay and medical evidence that the appellant had not seemed to be unwell in the hours and days prior to the killing. This would have militated against the acceptance of Dr Nimmagadda’s opinion. If, on the other hand, the jury had heard Dr Baird’s evidence that the appellant can appear well, yet actually be “more unwell”, that would have had a material bearing on the jury’s consideration of the defence. If the jury had heard the evidence of Drs Black, Clark, Bartlett and Pasupuleti, that the black shadow was “potentially an unconscious artefact rather than a fabrication” and that the appellant’s hypomania was sufficient of itself to support the plea, that would have had a material part to play in the jury’s assessment.
[3] What requires to be determined is whether, in terms of section 106(3) of the Criminal Procedure (Scotland) Act 1995: (1) the new psychiatric opinions constitute evidence which was not heard at the trial; (2) there is a reasonable explanation for that evidence not having been so heard; and (3) if it is thus “fresh” evidence, it is of such a kind and quality that the jury would have found it of material assistance in determining the issue of diminished responsibility.
The Crown case at trial
[4] The Crown case can be divided into 5 sections. The first involved the evidence of the appellant’s children; two of whom are doctors. Dr Paul Lilburn testified that the appellant had been diagnosed with a bipolar affective disorder in 2000. He could recognise when the appellant was either manic or depressed. The appellant’s condition had been stabilised by a drug management regime, although there were still periods of mania or depression. Dr Lilburn had been aware of the appellant speaking of a black shadow, although not in recent times.
[5] In June 2007, the appellant had told Dr Lilburn that he was having an affair with LM. The deceased had become aware of the affair and had confronted the appellant. Whereas the deceased had been distressed, the appellant had been “smiling like a Cheshire cat”. The deceased had wanted the marriage to end. She had consulted a lawyer. As at June 2007, the appellant was exhibiting no signs of mental ill health. This view had not been shared by Dr Lilburn’s brother and sister, who considered that the affair might be symptomatic of illness. Because of that, he had taken the appellant to see his general medical practitioner, Dr Niall Cameron, on 25 June 2007. At that time, blood tests showed that the appellant had been taking his lithium as prescribed.
[6] At about 2.00pm on Saturday, 28 July (the day before the killing), Dr Lilburn had spoken to the appellant on the phone, to wish him a happy birthday. He had considered that the appellant was “fine”. The appellant’s mood was normal. There was “absolutely” nothing to suggest any acute presentation. At 2.44am on 29 July, the deceased had sent a text message to her son stating: “Came home at 2.15 to find locked out of house then let in and assaulted”. Dr Lilburn had only noticed the text when he had wakened much later that morning.
[7] Laura Lilburn, the appellant’s daughter, who is now a solicitor, spoke to the appellant having been diagnosed with a bipolar affective disorder; the acute phases of which were very noticeable. She described the appellant’s pride in having an affair. She confronted the appellant on 6 July 2007. The appellant had said that he was “over the moon”. She had returned to her legal studies in Dublin on 25 July, at which time she had considered the appellant to be “fine”; albeit very angry about a letter from the deceased’s solicitors, telling him to leave the matrimonial home. Her final position was that, in the days leading up to the incident, the appellant had been “fine, calm and collected”.
[8] Dr David Lilburn recalled the appellant being diagnosed with a schizoaffective disorder in about 2001. Most people would have been able to identify when the appellant was in a manic or depressive state. The appellant had been reasonably well throughout the two years prior to the incident. Dr Lilburn had had concerns about the appellant’s behaviour in June 2007; particularly the way in which he had been presenting as if in a manic phase. It was because of this, stemming from the affair, that he had gone with his father and brother to the GP, who had concluded that the appellant was “fine”. He had last seen the appellant on 6 July, when he had no concerns about him.
[9] The second chapter of evidence came from those who had seen the appellant in the hours immediately prior to the killing. The first of these was LM. She had gone out for dinner with the appellant on the Saturday, 28 July, at which time he was “fine”. After dinner she had introduced him to her babysitters. He had left her house at about 1.00am. He was still “fine” then; although he had bought a bottle of whisky for the babysitters, which she had thought to be extravagant. The babysitters gave brief evidence that there had been nothing out of the ordinary about the appellant’s behaviour.
[10] The third chapter consisted of the doctors who had treated the appellant prior to the killing. The first of these was Dr Helen Anderson, a consultant psychiatrist at the Royal Alexandria Hospital. She had seen the appellant for about a year in 2003. The appellant had previously been diagnosed with a bipolar affective disorder, although she had instead diagnosed a schizoaffective disorder. The appellant had talked about a malevolent black shadow on a number of occasions. He had felt the presence of the black shadow, no matter what his mood. The references to the black shadow had been made when the appellant had been severely ill. It was this presence which had caused her to alter the diagnosis.
[11] Dr Ian Matson was the consultant psychiatrist who had taken over the treatment of the appellant from Dr Anderson. He had continued to see him until June 2007. The appellant suffered from a bipolar affective disorder. The appellant had spoken to Dr Matson about a black shadow, but this had been reasonably early on in his treatment. It had been present when he had been depressed. Dr Matson had seen the appellant on 20 April and 22 June 2007, at which time there had been “no abnormality in his mental state”. The appellant had been taking his prescribed lithium.
[12] Dr Cameron, the appellant’s GP, spoke to the acuteness of the appellant’s condition between 2002 and 2004. However, from 2005 the appellant had undergone significant improvement and stabilisation. When Dr Cameron had seen him on 25 June 2007, he had found his blood biochemistry to be normal. There had been nothing to make him think that the appellant was unwell.
[13] The fourth chapter was the evidence from police officers about what had happened on the night of the killing. There had been a 999 call, during which the appellant and the deceased could both be heard. The police had arrived at the house shortly after 3.00am on 29 July 2007. At this time the appellant had been calm and reasonably in control. The appellant had told the police officers to go upstairs, where the body of the deceased was found. He had shown no emotion and was staring into space.
[14] The appellant was interviewed. He told the police that, although he suffered from manic depression, this had been controlled by medication. He provided the police with considerable detail about what had happened on the day before the killing, but he stated that he had no recollection of events between returning to the house and the arrival of the police. Although there was reference in the interview to the appellant looking at the ceiling, this had not been explained by him. There was nothing to suggest to the police that the appellant had thought that he was looking at an evil spectre.
[15] The fifth chapter was the evidence from the doctors who saw the appellant after the killing. The first two of these were the police casualty surgeons, Drs Robert Jamieson and Robert Hendry, neither of whom described any signs of mental disturbance. There was no acute psychosis present. Their findings are noted in a report from Dr Baird (infra). Dr Henry had examined the appellant at about 9.20am on 29 July 2007, about 6 hours after the killing. He described him as:
“Well orientated; understands what was happening; fit to consent to examination; mood flat; no obvious thought disturbance; says used to see black shadows that interfered with his thinking but not now; denies visual or auditory hallucinations; does not appear to be experiencing hallucinations; talks in slow, methodical sentences …”.
Dr Smith, who saw the appellant at 5.20pm on 29 July 2007, described his mood as flat and lacking emotional response. The appellant was psychiatrically very unwell and would require expert psychiatric assessment. A blood sample, which had been taken on the night of 29 July 2007 by one of the doctors, showed that his lithium intake was within the therapeutic range.
[16] The third doctor was Dr Rhona Gow, who was then a specialist registrar in psychiatry. She had interviewed the appellant on 1 August 2007. The appellant had told Dr Gow that he had been charged with the murder of his wife. He had said that he was sure that his wife was still alive and that his current predicament was “a dream”. A malevolent black shadow had been following him and communicating by “quasi-telepathic means”. This had occurred previously when he had been unwell, but the only recent appearance of the shadow had been after he had been taken into police custody.
[17] Dr Gow reported that the appellant had not been agitated or distressed. His mood had not been elated. Rather, his affect appeared blunted. There was a lack of emotional variation. Especially because of the appellant’s belief that his wife was not dead, Dr Gow concluded that the appellant would not be able to instruct a solicitor and, in that respect, he was not sane and fit to plead. Further assessment was required. Dr Gow, who is now a consultant at the Rowanbank Clinic, gave evidence at the appeal hearing. She still thought that the appellant ought to have been the subject of further assessment. She had been surprised that this had not happened.
[18] Dr George MacDonald, a consultant forensic psychiatrist now based in Renfrew, examined the appellant on 2 August 2007 (the day after Dr Gow). The appellant had given him an account of what had happened up to about 8.00pm on the evening before the killing and then after the arrival of the police the following morning. However, he had later referred to having received injuries to his hands “in the early hours of Sunday morning” and to the “speed with which the police had attended following his wife’s emergency call”. This had led Dr MacDonald to the view that the appellant’s claim of amnesia was false. There was nothing in what the appellant had said to suggest that he had been suffering from any mental abnormality at the material time. He did not say to Dr MacDonald that it was all a dream and that he did not believe his wife was dead. He knew that his wife was dead and that that was why he was in prison. The appellant’s memory and concentration had appeared normal. There was no evidence of any abnormality in mood. The rate, form and content of his speech were normal. This was significant in any diagnosis of a manic or depressive state in the context of a bipolar disorder. The appellant had made no mention of the black shadow. Dr MacDonald had concluded that the appellant was entirely mentally well.
[19] Dr MacDonald gave evidence at the appeal hearing. He confirmed that he had known that the appellant had had a history of mental illness, which had included references to a black shadow. He had been anticipating making a psychiatric recommendation. When he had seen the appellant, however, there had been no sign of mental illness. Further psychiatric assessment had not been required, even if it might have had some advantage from the viewpoint of the legal process. It might, he said, have avoided the current appeal proceedings.
The Defence case at trial
[20] The appellant, who was aged 45 at the date of the trial, gave evidence. He had married the deceased in 1981. He had graduated in accountancy. He had worked for many years as a loss adjuster in Glasgow and, for a short period, Northern Ireland. He had begun to suffer from anxiety in Ireland and returned to Glasgow in 2000. He had retired on the grounds of ill-health in 2001. He had initially been diagnosed as manic and then as bipolar, having been referred by his GP to Dr Ernest Worrall, consultant psychiatrist at the Priory Hospital. He had told Dr Worrall about the black shadow. The shadow was bell shaped and similar to apparitions shown in the film “Ghost”. It manifested itself at varying degrees of intensity and communicated telepathically. The appellant did not hear voices, but he could feel what the shadow communicated. He shared thoughts with it. It never left him.
[21] In 2003/2004 the shadow had put pressure on the appellant to stab his wife, but he had not acted upon this. The pressure involved the shadow squeezing the cortex of the appellant’s brain and attempting to impose its will on him. He understood that the black shadow was not regarded as real by the psychiatrists. They ascribed it to psychosis and had tried to kill it by giving him anti-psychotic medicine. However, it had told him to tell the psychiatrists that it could not be killed.
[22] The appellant testified that he had stopped taking his medication (lithium and aripiprazole) in 2006. He had then embarked upon a bizarre and expensive search for a female primary school friend, whom he had not seen since 1974. He had appeared on her doorstep one day. After several lunches, this relationship had ended. By June 2007, the appellant had been “flying”. He had embarked on his “next project” by way of recommended distraction therapy. The therapy involved him embarking on an affair with LM, whom he had contacted through the Herald’s personal columns.
[23] The appellant had been taken to see Dr Cameron on 25 June 2007 by his children, because they had wanted to have him “sectioned”. He had regarded himself as on an adventure, which he did not want to end. He had had to persuade Dr Cameron that he was well. He had done this by slowing down his speech and appearing to be “in touch with everything”. He had fooled Dr Cameron by taking his lithium for a week prior to the consultation. This meant that he had obtained a “get out of jail free” card. The appellant had seen Dr Matson at the end of June. He had been “hiding everything” from him. His psychologist (Dr Anne Hossack) had thought that he was entirely well on 26 July 2007, but he had told her of his sense of “foreboding”. His mood was “tipping” from manic to depressed on the evening of 28 July 2007.
[24] The appellant described the fatal day. It was his birthday. He had gone out with the deceased to walk the dogs. He had asked the deceased out for dinner. She had declined the invitation. He had then gone out with LM instead. Despite LM’s evidence to the contrary, the appellant did not regard himself as acting normally. The storm clouds had been gathering in his mind.
[25] The appellant described returning to the house. The deceased was not there. He had gone to the matrimonial bedroom, although he was supposed to be sleeping in the spare room. He had locked the bedroom door. He had felt strange. He had taken a large dose of lithium and Tylenol. He had woken up hearing the deceased banging on the bedroom door. There had been an argument. The deceased had thrown her mobile phone at him. He had attacked her. He had struck her head against the door frame of the en suite bathroom and on the tiled bathroom floor. The black shadow had then appeared and telepathically told him to go ahead and kill the deceased. He accepted that he must have gone downstairs and obtained the knives, but he could not remember doing this. He recollected stabbing the deceased, although not how often. He remembered the police coming to the door.
[26] During the course of his police interview, the black shadow had been in the light fitting of the room, laughing. The appellant had not told the police about this, as he did not think that they would believe him. His lack of memory, when he had seen Drs Gow and MacDonald, had been genuine. It had recovered in about October 2007. The appellant admitted understanding the legal requirements for diminished responsibility, having been studying law at University. He accepted that he had lied to Dr Cameron and fooled Drs Matson and Hossack. The black shadow had not been controlling him when he had struck the deceased’s head on the door frame and tiles. The deceased’s text to her son to the effect that he had locked her out of the house had not been correct.
[27] The appellant called Dr Nimmagadda, a consultant forensic psychiatrist at Cheswold Park Hospital. This is a medium and low secure unit near Doncaster. Dr Nimmagadda had first seen the appellant at HM Prison, Greenock on 11 February 2008. He considered that the appellant was suffering from a schizoaffective disorder; the symptoms of which involved mood swings ranging from extreme mania to deep depression. The appellant had told him that he had not been taking his anti-psychotic medication (aripiprazole) or his mood stabiliser (lithium).
[28] It was Dr Nimmagadda’s opinion that, at the material time, the appellant was suffering from symptoms of a mental illness that had affected his ability to think rationally. This had possibly diminished his responsibility significantly. The appellant believed that he had been controlled by the black shadow. The appellant’s failure to take his medication may have contributed to a relapse in his illness in the days prior to the offence. This might also have affected his behaviour.
[29] Both LM and the babysitters could have missed the telling symptoms of mania, as could the police casualty surgeons. It would have been possible for the appellant to have persuaded Dr Cameron that he was well, even when he was not. The appellant could have disguised some of the symptoms. A manic phase could change to a depressive one fairly rapidly. The symptoms of depression and mania could alternate or co-exist. The appellant embarking upon an affair and flaunting it was behaviour consistent with a manic phase.
[30] Before leaving this heading, it is worth noting that the medical records of the appellant were available pre-trial. No doubt for sound reasons, these may not have been delved into too deeply in certain areas. If they are studied, there are many entries which disclose a prolonged history of irritability and rage, perhaps even pre-dating the appellant’s diagnosis of bipolar affective disorder. The appellant’s initial referral to Dr Worrall in 2000 had been partly because of irritability. That mood is also recorded as present during a family holiday in 2002. The appellant’s referral to Dr Hossack in 2002 had been in relation to anger management. Dr Hossack noted that the appellant was prone to flying into rages and having extremely violent outbursts. An incident that year had involved him breaking furniture, shouting and swearing at the family and being admitted to the Priory Hospital. Treatment for anger management and irritability had continued in 2003, when Dr Anderson had recorded that the appellant had brief flashes of hypomanic-like symptoms with a sense of well being or intense irritability or anger. In the following year, it was noted that a change in his drug therapy produced a worsening of his irritability to the point of rage. Dr Anderson had surmised that the appellant was at risk of seriously assaulting his wife. During episodes of intense irritability and rage, he could become a danger to himself and his family. By August 2004, although the appellant had been feeling better and the black shadow had disappeared, his wife had thought that he had not been managing his anger and frustration well. There had been an incident in which she had felt physically threatened. Notes of irritability, especially when dealing with his wife, appear in 2005 and 2006. In June 2007 an incident of rage involving his daughter was recorded.
[31] There was one, apparently important, witness who was not led at the trial. This was the deceased’s female friend, EH. According to her witness statement, EH had described the deceased talking about the appellant’s increasingly bizarre behaviour. Dr Baird (infra) quotes from this statement, which was not lodged in the appeal process, as follows:
“… throughout their marriage when [the appellant] had tantrums he would regularly assault [the deceased] by pulling her hair, and she had also told her … that in about early July 2007 she had woken up with [the appellant’s] hands round her throat and he had raped her.”
On 27 July 2007, EH had been in contact with the deceased. She had told her that the appellant had been in and out of the house all night. He had returned in a foul mood, slamming doors. The following day had been the appellant’s birthday. The deceased had told her that she had taken a nap and woken to find the appellant sitting at the end of the bed staring at her. She had found this unnerving in view of the fact that he had raped her two weeks previously. The deceased had gone out with the dogs herself, but he had followed her in his car. Later, the appellant had gone out socially, as had the deceased. The deceased had visited EH. She had seemed in reasonably good spirits. She had told EH that she was going ahead with the divorce. She had wanted the family home to be sold as quickly as possible. The deceased had gone home with the dogs at about 2.00am on Sunday 29 July.
The Appeals
[32] On 23 January 2009, the appellant presented a Note of Appeal against conviction and sentence. Leave was granted in respect of two grounds (1(b) and 1(c)). These founded respectively upon the trial judge’s directions on the onus of proof in, and the requirements of, diminished responsibility. After a hearing on 12 August 2010, the court rejected ground 1(c). At that diet, the court was asked by the appellant to remit ground 1(b) to a Full Bench. This was done and a new hearing took place on 23 March 2011. The appeal on this ground was refused on 26 April 2011 (2012 JC 150). The sentence appeal against the punishment part (19 years) imposed on the appellant was refused on 25 May 2011.
[33] At the conclusion of the hearing in March 2011, the appellant had attempted to lodge a further “Note of Appeal” containing new grounds, one of which related to fresh evidence of diminished responsibility. This referred to 3 reports, namely those from: (i) Dr Sharat Shetty, consultant forensic psychiatrist, dated 10 February 2010; (ii) Dr William Black, consultant forensic psychiatrist at the State Hospital, Carstairs, dated 16 July 2010; and (iii) Dr Lynda Todd, consultant clinical psychologist at the State Hospital, dated 23 July 2010. Dr Shetty had taken over from Dr Black as the visiting psychiatrist at HM Prison, Shotts, where the appellant had been incarcerated. He had arranged for the appellant’s admission to the State Hospital, in July 2009. Dr Shetty’s report was not produced in this appeal process. Dr Black’s conclusion was that the appellant’s mental illness had played a significant role in the appellant’s behaviour at the relevant time. This report was forwarded to the appellant’s appeal representatives on 27 August 2010.
[34] Leave to amend the Note of Appeal to include the new grounds was refused ([2011] HCJAC 39). The Opinion of the Court, delivered by the Lord Justice General (Gill), contained the following:
“[8] On the face of the information before us, the present case appears to show a particularly outrageous disregard for the efficient disposal of appellate business. …
[9] There appears to be a growing tendency, in some quarters, to extend the time taken to dispose of appeals by seeking to introduce at a late stage proposed additional grounds of appeal which might have been advanced much earlier. Such a tendency is inimical to the due, fair and efficient disposal of appeals and must be firmly discouraged.”
[35] The appellant submitted an application to the Scottish Criminal Cases Review Commission on 27 June 2011. One of the grounds raised was fresh evidence in the form of the opinions of Drs Shetty, Black and Todd, which the court had declined to entertain only 3 months previously. The appellant obtained two further expert psychiatric reports during the course of the Commission’s consideration of his application; one from Prof Lindsay Thomson, consultant forensic psychiatrist at, and medical director of, the State Hospital, dated 24 October 2011 and one from Dr Norman Clark, consultant forensic psychiatrist, Ayr, dated 25 April 2012.
[36] The Commission elected to instruct their own report from Dr John Crichton, consultant forensic psychiatrist at the Orchard clinic. This was forthcoming on 4 May 2012. It did not support the appellant’s contention that his mental state had had a substantial effect on his conduct at the time of the killing. According to Dr Crichton, the recent psychiatric reports were mostly re-articulations of the evidence of Dr Nimmagadda at trial. The Commission accordingly declined to refer the case.
[37] The appellant made further representations, based partly on supplementary reports from the existing psychiatrists and partly on new reports from, amongst others, Dr Pradeep Pasupuleti, consultant forensic psychiatrist at the Ayr clinic, dated 11 July 2012, and Dr John Baird, honorary consultant forensic psychiatrist, dated 30 May 2012. In addition, the Commission were provided with an opinion of a solicitor advocate, who was acting for the appellant, dated 27 February 2013, which criticised the original remand of the appellant to prison, as distinct from the State Hospital. It was contended that, had the appellant been properly assessed upon a remand at the State Hospital, further evidence could have been led to establish his true mental state at the time of the killing. There was, in addition, new evidence in the form of a diagnosis of personality disorder.
[38] The Commission revised their view. They determined that the opinions of Drs Black, Clark and Pasupuleti, which were said to have been based on the observations of the appellant in the State Hospital post conviction, constituted new evidence that the hypomanic episode, which the Commission appear to have assumed had occurred at the time of the killing, may not have been severe, but had nevertheless had a substantial effect on his conduct. The black shadow was “potentially an unconscious artefact”. Dr Baird’s opinion that the appellant could appear well, when he was not, was also fresh evidence. The Commission considered that, because the new material emanated from the observations of the appellant post conviction, there was a reasonable explanation for the evidence not having been heard at trial. The new evidence was likely to have had a material bearing on the jury’s consideration of diminished responsibility. This was so notwithstanding Dr Crichton’s view. A miscarriage of justice may have occurred.
[39] In determining that the interests of justice required a referral, the Commission took into account the dictum in Carberry v HM Advocate 2013 SCCR 587 (at para [48]) about prior appellate proceedings. The appellant’s new agents had explained that the appellant had, prior to the presentation of the new grounds at the appeal hearing in March 2011, been pressing his former agents to present the fresh evidence ground “for some months” (from August 2010 to January 2011). The Commission considered that the failure to present this evidence timeously had not been the appellant’s fault, but that of his agents.
[40] On 6 December 2013, the court allowed the appeal to proceed; there being no motion to reject the referral in terms of section 194DA of the 1995 Act.
The new evidence
[41] The court heard evidence from some, if not most, of the leading forensic psychiatrists in Scotland and one from England. The many reports which were produced were, by prior direction of the court, treated as part of their examinations in chief, without the need to read out their content at the hearing. No issue arises about the skill and experience of those testifying in the appeal (including Drs Gow and MacDonald (supra)). Almost all had, although not necessarily initially, interviewed the appellant. They had explored the phenomenon of the black shadow and the part it had played in the killing. In their respective reports, each set out, usually in detail and at considerable length, the appellant’s personal and mental health history.
Dr William Black
[42] Dr Black was the appellant’s responsible medical officer (RMO) at the State Hospital from 2010. He produced two reports; the first (as already noted) dated 16 July 2010 and the second, a supplementary, report, dated 4 March 2013. The appellant had spent 2 years in prison prior to Dr Black’s interview. During this time, his mental state had fluctuated considerably from depressed to manic. He was usually depressed. He had talked about the black shadow being on his shoulder, taunting him. After his transfer in July 2009, the nursing staff at the State Hospital had found him to have pressure of speech. They reported that he thought that he had special powers of insight into the political and economic problems facing the world.
[43] The appellant suffered from a mental disorder in the form of a bipolar, rather than a schizoaffective, disorder. His mental state at the time of the killing was, in Dr Black’s words, “difficult to reconstruct not least because of his reluctance to describe or explain events when taken into police custody”. The black shadow, “existing as it does only in [the appellant’s] imagination, is unknowable to anyone else and there is no way of being sure whether it played as central a part in [the appellant’s] behaviour as he states it did”. It was very likely that, regardless of the role of the black shadow, the appellant’s overall mood, significantly elevated as it seemed to have been for many months, had had a significant bearing on his behaviour. Dr Black continued as follows:
“The irritability and disinhibiting effect of a manic mood state likely also did play a very significant part in rendering him less able to control his behaviour than he otherwise would have been. … there was on the balance of probabilities grounds for his mental responsibility to have been considered diminished at the time”.
[44] In his supplementary report, Dr Black rehearsed many of his previous findings. He considered that the question of the exact diagnosis had inordinately occupied the trial. The label to be attached to the illness was not particularly important. Much had been made at the trial of the fact that, around the time of the killing, the appellant had not shown any adverse symptoms. He had not appeared obviously unwell. That was not uncommon in the less severe manifestations of elevated mood. There were reservations about the black shadow and Dr Black had “effectively chosen to disregard it” in formulating his views. The appellant’s responsibility had been diminished, regardless of whether his account of the black shadow as an “experienced influence” were believed.
[45] In evidence Dr Black referred to the appellant’s illness as subtle. He could present as normal when relatively ill. The black shadow was a rather atypical symptom, although not completely unknown. The appellant was not necessarily lying about the black shadow. As Dr Black put it, everyone is the editor of his own story.
[46] An in-patient assessment at the State Hospital prior to the trial, in accordance with Dr Gow’s recommendation, would have taken into account staff assessments over time. On the other hand, the appellant’s account and mental health history had been known at the time of the trial, as had the evidence of the adult children and LM.
[47] Personality disorder would not have had any effect on the appellant’s actions at the material time. An obsessive compulsive personality disorder (OCPD) would make a person more cautious and careful. Dr Black did accept, on being recalled, that as recorded he had agreed with the diagnosis of OCPD made by Dr Todd.
Dr Lynda Todd
[48] Dr Todd had been asked two questions by the appellant’s agents, viz: (a) whether the appellant suffered from a personality disorder and, if so, which personality disorder; and (b) whether any such disorder had been present at the time of the offence and, if so, what bearing had it had upon the appellant’s mental state at that time. In her report of 23 July 2010, Dr Todd recorded that she had conducted an International Personality Disorder Examination (IPDE). Dr Todd recognised that, in carrying out the IPDE, it had not been possible to obtain collateral information upon the appellant from someone who had known him well during his adult life; given the estrangement of the rest of the family. Based upon the IPDE, the appellant met the criteria for a definite diagnosis of OCPD. This was demonstrated by perfectionism, excessive devotion to work, an inability to discard worthless objects, an insistence that others submit to his way of doing things, and a tendency towards rigidity and stubbornness. The appellant also met the criteria for a probable diagnosis of avoidant personality disorder (APD). This was demonstrated by a fear of rejection in social situations, restraint within relationships to avoid ridicule, a view of himself as inept and unappealing, and some degree of inhibition in inter-personal situations. These personality traits had been present in varying degrees of intensity throughout the appellant’s teenage and adult life.
[49] The appellant displayed traits and behaviours which were consistent with a cluster of other personality disorders (histrionic, narcissistic, borderline and anti-social), although he did not reach the criteria necessary for any one diagnosis. Irritability and inappropriately intense anger, lack of planning, irresponsibility, lack of remorse and empathy, repeated suicidal gestures, focus on physical appearance, a need for admiration and fantasies of success were also behaviours displayed by the appellant, although they tended to have been more pronounced following his contact with psychiatric services. All this suggested that, rather than reflecting an underlying personality disorder, the traits might instead either be related to episodes of elation or mania, or reflect compensatory strategies to overcome his APD. The appellant showed full or partial aspects of: grandiosity, pathological lying, conning and manipulation, callous lack of empathy, poor behavioural controls, impulsivity, irresponsibility and failure to accept responsibility.
[50] There were a number of factors, including personality disorder, which could have impacted upon the appellant’s mental state and actions at the time of the killing. It was probable that the OCPD and probable APD had significantly influenced the appellant’s mental state and actions at the time of the offence.
[51] In evidence, Dr Todd explained that everyone had personality traits. For a disorder to be present, these traits had to impair the individual’s functioning, social or professional, work or leisure, and required to be both persistent and pervasive. The trait needed to cause significant difficulties over time. The appellant did have, over a period of time, a significant dedication to his work. He had an adherence to certain moral standards and would be controlled and rigid in his approach. Immediately prior to the offence, he had been served with papers relating to a divorce. It had been his birthday; yet his family had not been celebrating with him. He would have felt that things were not under control. In the evening prior to the offence, he may have been trying to take back control; hence his occupation of the marital bedroom. The deceased’s throwing of her phone at him may have resulted in his exploding in an uncontrolled manner.
Dr Pradep Pasupuleti
[52] Dr Pasupuleti had produced two reports on the appellant; the first, dated 11 July 2012, and the second, dated 27 February 2013. He had first seen the appellant on 5 July 2012 at the State Hospital.
[53] Dr Pasupuleti described the appellant as pleasant and co-operative at interview, with normal speech rate, rhythm and tone. At times he felt depressed and objectively he appeared slightly low in his mood, with a flat affect. The black shadow was present most of the time. He could see it in his mind. It laughed at him and told him that he was useless.
[54] The appellant suffered from a bipolar affective disorder and had a diagnosis of an OCPD. Regardless of the role of the black shadow, there was clear evidence that the appellant was unwell at the time of the killing. His manic mood state was likely to have contributed towards irritability and disinhibition, culminating in impaired decision-making.
[55] Dr Pasupuleti’s second report had been prepared after he had had access to much of the primary material not previously available to him. He concluded that the appellant’s bipolar affective disorder would have induced an abnormality of mind which would have substantially impaired his ability to determine and control his actions. Regardless of the role of the black shadow, the appellant’s abnormality of mind, would have affected his ability to form a rational judgment.
[56] The black shadow appeared both when the appellant was depressed and when in a manic state. It was not a psychotic symptom. It was part of his bipolar condition. The appellant was able to mask his symptoms. He could appear well, when he was not. Depressive symptoms were more passive and therefore more difficult to mask.
[57] Had Dr Pasupuleti seen the appellant during the course of his 7 day period of remand, he would have admitted him to the State Hospital for an assessment. It had been a missed opportunity for assessment pre-trial.
Dr Norman Clark
[58] Dr Clark examined the appellant at the State Hospital on 17 April 2012. The appellant had continued to see the black shadow. Although the sensation had been present more when his mood was one of depression rather than elation, it could be there “much of the time”. It was a “supernatural being” that stalked him. Since the appellant’s admission to the State Hospital, his mood had been recorded as generally more stable than it had been whilst he had been in prison. He had been less depressed.
[59] The appellant continued to suffer from a bipolar affective disorder or a schizoaffective disorder. In the period prior to and at the time of the killing, he had been in a hypomanic state; and probably had been from as early as 2006. The black shadow had influenced his behaviour and had been present for many years. His hypomanic condition would have led to poor judgment and control. Dr Clark continued:
“Although some of his account may be retrospectively falsifying what occurred … there is little doubt that his mood was significantly disturbed and would have had a great part to play in his subsequent behaviour. It is likely that he would have been disinhibited and irritable as a result of his hypomania, leading to loss of control and the high level of violence exhibited …”.
On this basis, the appellant was suffering from an abnormality of mind sufficient to diminish his responsibility substantially.
[60] Dr Clark was asked to provide a supplementary report by the appellant’s current agents. He did this on 31 January 2013. The supplementary report dealt with the black shadow as follows:
“It is clearly difficult to be certain as to [the appellant’s] mental state at the time of the homicide. The presence of the ‘black shadow’ and command hallucinations appear somewhat variably described and, indeed, it is difficult to know quite what to make of this ‘black shadow’ and its place in [the appellant’s] killing of his wife. Even if one were to have reservations about this phenomenon and the command hallucinations, which appear to be variably described by [the appellant], I feel it highly likely that his mood state would have been unstable at the time of the index incident and this would have been in keeping with an elevation of mood due to an unstable and hypomanic state.”
The conclusion remained as before.
[61] In his evidence, Dr Clark expanded upon his views on the black shadow. It was an unusual phenomenon. It was a psychotic experience which was mood related. It usually appeared when the appellant was depressed, but it could also do so when he was hypomanic. The phenomenon had “bedevilled the case”.
[62] The appellant had a diagnosis of OCPD, but this had not caused him any difficulties over the years. It had not featured as a major factor at the time of the killing. Dr Clark’s opinion was the same as that of Dr Nimmagadda.
[63] It would have been prudent to have remanded the appellant in the State Hospital pre-trial. Observations of the appellant’s mental state would have reflected back on his state at the material time. This might have been helpful. There had been clear evidence of mental disorder before and after the incident. It was difficult to accept that there had been no mental disorder at the time.
Dr John Baird
[64] Dr Baird was an honorary consultant forensic psychiatrist at Leverndale Hospital, having retired in 2008. He was for many years the physician superintendent at the State Hospital. On the basis of the psychiatric records and without initially interviewing the appellant, Dr Baird had considered that, at the material time, the appellant had been suffering from serious mental illness and that his judgment, his reasoning and his decision-making, were likely to have been impaired at the time of the killing. In January 2013, Dr Baird prepared a further report. One of the interesting features of this was its reference to the information contained in the statement from EH (supra). Dr Baird had visited the State Hospital again. He had learned from the staff that the appellant’s day to day functioning had not involved any abnormalities, other than an episode of self-harm in 2012. He had interviewed the appellant. The appellant denied the account of rape described by EH. According to the appellant, he had wished his marriage to continue, even although he wanted to maintain his relationship with LM. He made reference to the black shadow; acknowledging that his belief made no sense, even if he nevertheless thought that the shadow did exist.
[65] The psychiatrists who had given evidence at the original trial had all been disadvantaged, through no fault of their own, because they had not had the benefit of the information on the appellant’s mental state, which would have been gathered had he been remanded in hospital for a period before trial. He ought to have been so remanded. Dr Baird accepted that assessment of the appellant’s mental state was not a straightforward matter because, on his own admission, he “fakes good”. The nursing staff at the State Hospital had described a situation in which the appellant had no features of mental illness in his day to day functioning and presentation. Throughout Dr Baird’s interview with the appellant, the complexities of his mental abnormalities had been apparent. He appeared rational, calm, coherent and co-operative. There were no florid abnormalities. His affect had been incongruous and there remained his paranoid delusional belief regarding the black shadow.
Dr Allana Davies
[66] Dr Davies was a clinical psychologist, who was working with the Willow Project in Edinburgh. She had previously been at the State Hospital where, in 2010, the appellant had been diagnosed by Dr Todd, as having a definite OCPD and a probable APD. The black shadow represented the appellant’s inner thoughts, expressed through an external medium. The appellant had been in a cycle, which was under-controlled at the relevant time. This had ultimately culminated in a complete unravelling and loss of control. There was thus a connection between his disorder and the offence.
Dr Annie Bartlett
[67] Dr Bartlett was, amongst other things, an honorary forensic consultant psychiatrist at Holloway Prison. She had originally produced a preliminary report in August 2013, but later prepared a fuller one. She felt unable to comment in any detail on the psychiatric material referred to within the many reports previously produced. The same applied to the accounts of the evidence at trial referred to in these reports. In both instances there had been “a substantial process of editing and interpretation by the report author, making the distance from the original information considerable”. Her report therefore remained provisional.
[68] Dr Bartlett quoted a section from Dr Shetty’s report, which is not otherwise before the court. This read as follows:
“He [the appellant] reports that he felt that if he did not take action against his wife then his life would be in danger and felt that he had to do something about. (sic) … he reported that he knew what he was doing was wrong, but he could not help himself. He felt that his life or his wife’s life was at stake and he went ahead and stabbed her multiple times.”
The appellant had told her that the black shadow had been with him since 2002. It varied in intensity. He knew that logically it could not exist.
[69] The appellant had suffered from a major mental illness for more than a decade. This was primarily a disorder of mood; the dominant state being one of depression, with periods of elation, the longest being in 2006/2007. The black shadow was predominantly linked with low mood, but not exclusively so. The experience was hard to characterise using ordinary psychiatric phenomenology. It appeared to be only pseudo psychotic as the appellant was aware that it could not exist. His disorder was best thought of as a schizoaffective illness. He had had rapid mood cycles which had been very difficult for those around him as well as for himself. These had included substantial irritability and outbursts of violence.
[70] Dr Bartlett questioned Dr Todd’s diagnoses of OCPD with additional traits of APD. These diagnoses were largely dependent on self-reporting by the appellant. Some of the information taken into account by Dr Todd had been discernibly illness related. The appellant had significant obsessive traits. However, he had been in a skilled occupation and had been able to maintain his marriage. It was hard to see the way in which his personality traits were a significant problem. This was crucial. Personality disorders were understood as sets of ways of relating to others that were pervasive, persistent and problematic. The appellant’s way of going about things may have been both pervasive and persistent, but they were not obviously problematic. The appellant was not clinically personality disordered.
[71] The appellant’s mental disorder constituted an abnormality of mind. He had been actively symptomatic for many months pre-dating the killing. His mental state may well have been fluctuating. It would have been likely to have impaired his reasoning and possibly disinhibited him, in the sense of allowing him to be more violent as events unfolded. His illness would, in isolation, have affected his ability to form a rational judgment. His experience of the black shadow may also have been relevant. The illness factors were in themselves adequate for a diminished responsibility, but the additional issue of personality factors could not be excluded.
[72] In her testimony, Dr Bartlett accepted that she had not had the full information. However, the fact that the mental illness had been severe and enduring, and both pre and post dated the incident, was pertinent in an assessment of the appellant’s mental state at the material time. Dr Bartlett agreed in general with the views of Dr Nimmagadda.
Professor Lindsay Thomson
[73] Prof Thomson prepared a report dated 24 October 2011. She concluded that the appellant suffered from a mental disorder in the form of a bipolar disorder, although he had subsequently received a diagnosis of schizoaffective disorder. Prof Thomson did not consider that the black shadow was a true psychotic experience, although it could be related at times to his low mood and be representative of his thought processes. The appellant met the diagnosis criteria for OCPD. He had had symptoms of mania at the time of the killing. Such a disorder would have induced an abnormality of mind which would have substantially impaired the appellant’s ability, as compared with a normal person, to determine and control his acts.
[74] In evidence, Prof Thomson stated that the appellant had had clear episodes of depression and symptoms of mania for several years in advance of the killing. The black shadow was more prominent when the appellant was depressed, but it also appeared when he was high. It was a feature of both elation and depression. Since it was supernatural, it might be more likely to be a feature of a manic state, although that was not what was described in her report. That was that, although the appellant had believed the black shadow to be supernatural, it was, nevertheless, related to low mood.
[75] It was unfortunate that the appellant had not been transferred to the State Hospital during his period of remand, because the 24 hour nursing observations might have been useful.
The Crown response
Dr Isobel Campbell
[76] Dr Campbell prepared a report dated 20 December 2007. At the time of her interview with the appellant, he had been on remand for some four months. She recorded some of the terms of a report from Prof Prem Misra dated 3 October 2007 to the effect that, when seen by him on 28 September 2007, the appellant had stated that he could not remember anything, other than that he must have returned home from being out with LM. Prof Misra had recorded him as well oriented in time, place and person. He had not considered that there was any evidence of depression or elation. Dr Gary MacPherson, consultant clinical psychologist, in his report of 25 October 2007, had described the appellant’s behaviour on the day of the killing as “entirely rational”, although at the time he had mentioned the intervention of the black shadow.
[77] At interview, the appellant was emotionally cold and detached. Although his accounts were suggestive of a mild elevation of mood over the preceding year, there was no evidence that this had been of sufficient severity to cause concern to the professionals looking after him. He had not presented as having a significant mood disorder during any of the interviews with any of the psychiatrists during his remand. There had been no concern about his mental state during the time he had been in hospital after the incident. He had not required contact with the prison mental health services during his remand.
[78] The appellant’s apparent failure to recall details of a name and address after 5 minutes was at odds with his overall ability to give a detailed history, which corresponded closely with the account in the case notes. His concentration was extremely good. He was not disoriented in time. There was no evidence that the appellant was suffering from any significant mental illness. There was no evidence of significant abnormality of mind present at the time of the offence. His behaviour during the earlier part of the day had been entirely unremarkable. The appellant had a documented history of anger management problems ante dating the onset of illness. There had been no requirement for any further psychiatric assessment in an in-patient setting.
[79] Dr Campbell had questioned whether she had “got it wrong”, knowing the mental history of the appellant. However, she considered that her report had been carefully reasoned. She did not think that her conclusion had been wrong. She had accepted that the appellant had a bipolar disorder, albeit that he had been very old to have an onset of this condition.
[80] The appellant had manipulated his lithium. There were aspects of his version of events which were not reliable. The account of the black shadow became more elaborate over time. It was a most peculiar phenomenon. It had been an intermittent phenomenon, which did not fit in with the standard phenomenology. It was not part of a schizoaffective illness, because he did not have such an illness. The appellant suffered from mild hypomania, but this had not influenced his behaviour. It had not had a great part to play in the killing.
[81] Dr Campbell’s opinion had not been formed on the basis of scepticism about the black shadow, but on the considerable information available to her. That had included the views of the GP, a psychologist, and a psychiatrist, whom the appellant had seen shortly before the event. In relation to the views of the appellant’s psychiatric experts, in so far as these contradicted the views expressed by Dr Campbell, she maintained that her opinion had been carefully thought out and reasoned. She did not consider that being the appellant’s RMO after the event put a psychiatrist in a better position than one who had seen the appellant around the time of the killing. There would have been no significant information gleaned about the appellant’s mental state as a result of observations during a remand at the State Hospital, although this might “have prevented us from being here today”.
Dr Fionnbar Lenihan
[82] Dr Lenihan was a consultant forensic psychiatrist, currently practising at the Orchard Clinic. He had prepared a report on 4 February 2010. Near the outset of his report Dr Lenihan expressed concerns about the veracity of the appellant’s statements to him and others.
[83] An interesting difference, between Dr Lenihan’s approach and that of the other psychiatrists, is that he assessed the appellant’s cognition (attention, concentration etc) using a standardised tool recommended for this purpose. Dr Lenihan had had no concerns about the appellant’s cognitive functioning. However, on testing the appellant had scored 69 out of 100. On the face of this, he was “unambiguously demented”, since the tool was deemed to have a 100% specificity for dementia at a cut off of 82 out of 100. This was entirely inconsistent with the appellant’s performance at interview, or as reported by the nursing staff.
[84] Ultimately, Dr Lenihan formed the view that the appellant had not been honest in his presentation of symptoms. He did not come to this conclusion lightly, but certain items of information pointed him in that direction. The appellant had in the past taken “refuge in the sick role”. His clinical presentations had changed retrospectively. He had conscious gain in mind. He had not appreciated the inconsistency of stating that he literally believed that the black shadow was real and at the same time advancing this as a symptom of a mental disorder which ought to be taken as evidence of diminished responsibility.
[85] There had been concerns regarding the veracity of the appellant’s account since his arrest. He had been deliberating his answers at interview. There were suspicions about his memory gaps. His claims to have been able to falsify his lithium levels had been dubious and they would in any case point to a level of planning and forethought, which would not be compatible with a severely disturbed mental state. The black shadow and the accompanying delusions of telepathic instruction were phenomenologically atypical. They did not fit the pattern of symptoms usually reported by patients. The appellant had been attempting to give the impression of being cognitively impaired, when he was clearly not. The appellant’s attempts to falsify symptoms meant that other mental state findings had to be regarded as unreliable. There was insufficient evidence that the appellant had been suffering from an abnormality of mind which substantially impaired his ability, as compared with a normal person, to determine or control his acts.
[86] Dr Lenihan explained in evidence that the appellant had an existing diagnosis of bipolar and subsequently schizoaffective illness. Once Dr Lenihan had formed a view that the appellant’s account was not entirely honest, he had not been able to come to any conclusion. In psychiatry it was necessary to rely on what the patient had told the doctor. The appellant had presented with symptoms which he did not have. The cognitive assessment had been the most dramatic. Grandiosity was not unusual, but if a person was suffering from delusions, he would believe them to be true. He would not advance them in a manner which would affect the disposal of the case. The appellant had described the black shadow as a concrete phenomenon, not as a metaphor.
[87] There were advantages in being the person’s RMO, but there were also disadvantages in a hospital stay.
Dr John Crichton
[88] Dr Crichton had, as already noted, been instructed by the SCCRC to review the appellant’s case in early 2012. In his report, dated 4 May 2012, Dr Crichton looked at the various psychiatric reports produced and commented upon the findings in each one. He did the same with testimony of the various doctors at trial. The recent psychiatric reports, with the exception of that of Dr Lenihan, had rehearsed many of the arguments that had been aired at the time of the trial. The fresh evidence was said to be the observations of the appellant after his transfer to the State Hospital. However, although that additional information was valuable in understanding the appellant’s overall mental health problems, he had predominantly presented with low mood, whereas at the time of the offence it was generally accepted that he was either normal or elevated in mood. The black shadow continued to feature in the appellant’s account of his internal experiences, but it had not been particularly prominent during recent episodes of brief elevated mood.
[89] Neither the evidence of personality disorder nor that of ongoing mental health problems significantly undermined the conclusions made by the jury at the time of the trial. At that time, it had been accepted that the appellant had a longstanding psychiatric problem. Accounts had been heard from several witnesses which had revealed little or no evidence that he had been unwell immediately before the offence. There was no evidence that he was particularly unwell immediately afterwards. His mental health condition had been controlled by medication. His account of non-compliance had been undermined by the findings of therapeutic lithium levels.
[90] Although, at the time of the offence, the appellant did have an abnormality of mind, both in the form of a bipolar affective disorder and an OCPD, given the totality of the evidence it was unlikely that either disorder had had a major bearing on the appellant’s conduct at the time of the offence. Being as subtle as he might be expected to be, Dr Crichton referred to a suspicion that there had been some deliberate falsification of psychiatric symptoms and coaching of medical experts on the part of the appellant. Another possibility was that he had been exaggerating.
[91] The black shadow was a highly unusual description of a psychiatric symptom. It did not match the commonly found symptoms in either the depressive or manic phases of schizoaffective disorder. It did not have the normal characteristics of psychotic phenomena commonly observed. For those psychiatric experts who were persuaded that the black shadow had been a crucial symptom in the commission of the offence, there were a number of questions which had to be addressed, viz: why the account of the black shadow and the offence did not emerge straight away; why there was an inconsistent account given about his memory of events; why, when the evidence suggested that the black shadow was a manifestation of the depressive phase of the appellant’s illness, should it suddenly feature with such dreadful consequences during a period of elevated mood; why, when the appellant had never before received an order or instruction which he had then acted on in any way, should the first such occurrence result in homicidal violence; why had there been no reoccurrence of the behaviour directed by the black shadow.
[92] Dr Crichton continued:
“In essence therefore, the psychiatric reports by Dr Black, Dr Shetty, Professor Thomson and Dr Clark are re-articulations of the arguments made by Dr Nimmagada which were aired at the time of trial. One reason why psychiatrists disagree about clinical cases is often not because of the merits of the clinical information but because they have had access to different evidence. The crucial evidence that needs to be considered by any fresh evaluation of the case is the transcript of the trial. By the adversarial process the strength of the evidence, not only of the experts but also of the family and girlfriend witness was tested. So too was [the appellant’s] own account of his symptoms at the time.”
At the time of the offence, it was likely that the appellant had been in a quiescent phase of bipolar affective disorder. It had not had a substantial effect on his conduct at the time. He had an obsessive personality, but it had not had a substantial effect on his conduct. The only psychiatric evidence, which was fresh, was the more detailed understanding of the appellant’s personality structure and the additional understanding of his mental health difficulties, following his inpatient admission to the State Hospital. This did not alter significantly the evidence considered at the time of trial.
Submissions
Appellant
[93] The appellant required to demonstrate that a miscarriage of justice had occurred, based upon the existence and significance of evidence which had not been heard at the original proceedings (Criminal Procedure (Scotland) Act 1995, s 106(3)(a)). It was not disputed that the new psychiatric evidence had not been heard at the trial, although it was accepted that it was not sufficient, in order to meet the statutory criterion, that there had been a mere amplification of evidence that had been heard. The focus of the court ought to be on the two relevant aspects. The first was whether there was a reasonable explanation for the evidence not being so heard (1995 Act, s 106(3A)). The court ought to apply this test flexibly, according to what was necessary or expedient in the interests of justice (Campbell v HM Advocate 1998 JC 130, Lord McCluskey at 168). The evidence had to be significant relative to the testimony at trial. The law in relation to these matters had recently been set out in B v HM Advocate 2014 SCCR 376 (LJC (Carloway) at paras [18] and [20]). Not only must there be a reasonable explanation, without which the appeal could not succeed, but the appellant required also to demonstrate that the fact that the evidence was not heard at the original proceedings must be regarded as a miscarriage of justice (Megrahi v HM Advocate 2002 JC 99, LJC (Cullen) at para [219]). The court had to be satisfied that the evidence was capable of being regarded by a reasonable jury as credible and reliable. If it met that standard, it had to be of such a kind and quality that it was likely to have had a material bearing on the jury’s consideration of the critical issue at trial.
[94] There was a reasonable explanation, even if the circumstances were unusual. The previous reported cases did not assist because they tended to be about appellants who had failed to find particular witnesses. They rarely dealt with the situation here, where the live issue had been canvassed at the trial. The trial had been about diminished responsibility, but the reasonable explanation, as to why a large number of highly regarded experts had not been adduced, was bound up in a sequence of events commencing with what had happened at the remand stage. The report of Dr Gow had not been made available to the appellant at full committal, although it was disclosed shortly thereafter. The appellant had then instructed Dr Campbell. The report had not been helpful. Exactly why a second opinion had not been sought from one or more of the psychiatrists, who were ultimately instructed, was not clear. It was not for counsel to express a view on whether these doctors ought to have been consulted. It had been difficult to find out what the appellant’s former agents had been doing in relation to the defence at the relevant time. The agents had been faced with a Scottish expert who had taken a particular position. They may have thought that other psychiatrists would not be more sympathetic. There was no reason to suppose that the obtaining of another report would have advanced matters. This was not a matter for the appellant himself, but for his law agents. Counsel for the appellant did not know why the agents had decided to consult Dr Nimmagadda. The counsel who had been acting at the time was now deceased.
[95] There had been a systematic failure, as had been accepted by Drs Campbell and MacDonald. The correct thing to have done would have been to have had a psychiatrist at the State Hospital examine the appellant during his period of remand pending trial. There was no explanation as to why that had not taken place. It had been a missed opportunity. Drs Black, Baird and Crichton had all said that there had been an error. The fact that this was regarded as an error demonstrated that an advantage would have been gained had it been done. This also brought into play the duty of the Crown. Where the mental health of an accused was at issue, it was the Crown’s responsibility to make suitable enquiries. Where there had been two conflicting reports about the accused’s sanity and fitness to plead, the Crown were bound to investigate that matter further.
[96] The reasonable explanation for not having heard the new psychiatric evidence at the trial was a combination of circumstances, including the fact that the appellant had not been examined properly. Dr Campbell had made the point that, had assessment taken place, the current procedure might not have been necessary. There might not have been a trial. Because of the subtlety of the appellant’s condition and the content of Dr Campbell’s report, further reports from within the Scottish establishment were simply not looked for. It was accepted that this was simply an assertion. It was not known whether the agents had “shopped around” to ascertain which psychiatrists might have been sympathetic to the appellant’s predicament. It was accepted that there had been no evidence led in the appeal, or material presented, about what the appellant’s law agents had been thinking and doing at the material time. The current agents had obtained some files from their predecessors, but there had been months of activity missing and the trial agents had declined to supply the relevant information.
[97] The Crown’s position was that the evidence now available had been heard at the trial. There was nothing new. However, it was important to look at the defence case in the context of the trial. The Crown approach had been that the appellant was just a bad man and had been making it up. The approach was to mock the appellant’s illness. It had been said anecdotally that the jury had laughed at his explanations. By the end of his testimony he was effectively “dead in the water”. He had then attempted to lead Dr Nimmagadda, who had only been qualified 2 years, had come up from London and had based his evidence on the existence of the black shadow and the appellant’s manipulation of his drug regime. By this time the defence had no prospect of success. Dr Nimmagadda would have been isolated. He had focused on the black shadow, which had already been ridiculed as non-existent. The unanimous finding of guilt was not to be wondered at. This was important in the context of considering the significance of the new evidence.
[98] Against that dynamic, there were three new aspects to the case which had not been looked at to any degree during the course of the trial. The first, which was not founded upon too strongly, was the issue of personality disorder. It was correct also to say that none of the psychiatrists had said that the existence of a personality disorder would have affected their evidence. What was clear, from Dr Bartlett’s evidence in particular, was that a personality disorder was relevant to any consideration of the appellant’s mental state, when taken along with his bipolar disorder. This had not come across, or at least not clearly so, in Dr Nimmagadda’s evidence. It was a new issue.
[99] Secondly, there was the view, commencing with Dr Pasupuleti and continued by Dr Black, that the black shadow did not require to exist to make the appropriate diagnosis. Their opinions could be reached whilst discounting the existence of the black shadow. In relation to how this fitted in with the appellant’s own account of the black shadow, it was said that the appellant could have been lying about it. Dr Crichton had agreed that this was new, although it was a matter for the court to determine its significance.
[100] Thirdly, there was the evidence of the observations of the appellant after his transfer to the State Hospital. The observations of his behaviour in the State Hospital, as distinct from in prison, were different. Although Dr Nimmagadda’s opinion might not have changed, the basis of that opinion would have been entirely different, and therefore extremely significant, if it had been based on observations at the State Hospital during a period of remand.
[101] In addition, there was the evidence that the appellant could appear not to be very ill when he was. When Dr Nimmagadda had been giving evidence, the Crown appeared not to be conceding that the appellant had any illness at all. This could be compared with the situation had Dr Black given evidence, based on months of observation in the State Hospital. The test of significance eventually came down to one of quality. Six psychiatrists had given evidence. All had said that the appellant suffered from a major mental illness. All had found it difficult to reach a conclusion that he could have committed a crime without that illness having affected him. All had said that he had a continuing illness in the State Hospital. All had taken the view that the black shadow was a manifestation of his illness, rather than being fabricated. All had said that the appellant’s illness was subtle and would not always have manifested itself.
[102] It was accepted that it would not be sufficient to meet the test that the appellant had simply upgraded to a better psychiatrist. The matter was one of degree. Ultimately, there was only one test. That was whether a miscarriage of justice had occurred (Kidd v HM Advocate 2000 SCCR 513). Johnstone v HM Advocate 2013 SCCR 487 had involved a totally different situation. The appellant there had wanted to obtain a Hospital Order initially and had then subsequently sought to change that (see also Reid v HM Advocate 2013 SCCR 70). This appellant had been ill, yet he had not been taken to the State Hospital. If he had been, there may not have been a trial and, if there had been, it would not have taken the form that this one did. The body of evidence now available was such that a miscarriage of justice had occurred in the absence of the jury having heard that evidence.
[103] If the court were satisfied that a miscarriage of justice had occurred, the appropriate course of action was not to authorise a new trial but to substitute a verdict of culpable homicide.
The Crown
[104] The evidence which was said to be new and significant was that stemming from the observations of the appellant post conviction, both in prison and, more importantly, whilst the appellant had been an in-patient at the State Hospital. The material upon which the psychiatrists had based their opinions had been available at the time of the trial. It had formed the basis of the appellant’s defence then. The opinions of the psychiatrists at trial had been based on an extensive analysis of the appellant’s history, dating back to at least 2001. This history had shown that the appellant suffered from a mental illness, which had been treated by way of a structured plan from a multi-disciplined team, both in the hospital setting and in the community. The new reports were no more than a re-articulation of the arguments advanced at the trial by Dr Nimmagadda and explored with the other witnesses, both medical and lay.
[105] Section 106(3A) provided that new evidence could found an appeal only when there was a reasonable explanation as to why it had not been heard at the trial. In Campbell v HM Advocate (supra, Lord McCluskey at 167), “reasonable explanation” had been described as the key which opened the door to the hearing of new evidence. If that key were missing or did not work, the evidence could not be taken into account (see also Fraser v HM Advocate 2008 SCCR 407, LJC (Gill) at para [131]; Barr v HM Advocate 1999 SCCR 13 at 17-18; Cameron v HM Advocate (No.2) 2008 SCCR 748 at para [10]; and Lucas v HM Advocate 2009 SCCR 892 at paras [21]-[22]).
[106] A period of psychiatric assessment prior to the trial had not been considered appropriate because the full psychiatric history of the appellant had already been considered and ultimately spoken to by Drs Anderson, Matson, MacDonald and Cameron. The appellant’s presentation to the police surgeons and police officers in the aftermath of the offence had also been available. The defence had been in receipt of reports from Drs Campbell and MacPherson and Prof Misra, who had all been of the view that no such period of assessment was necessary. Dr Nimmagadda had been able to advance his view on diminished responsibility because of the delusional effects of the black shadow and the appellant’s hypomanic state in the period before the offence. Accordingly, the diagnosis, and the consequences of it, had been fully aired and addressed at the trial. The Crown did not accept that there had been some form of systematic failure. In the exercise of their public duty they had been satisfied that a period of in-patient assessment had not been necessary.
[107] The fact that experts, who held a different view from Drs MacDonald, Anderson, Matson, Cameron, Campbell, MacPherson and Prof Misra, had now been identified some years after the event, was not sufficient to constitute a reasonable explanation. If it did, it would encourage expert shopping. The evidence of the psychiatrists called in the appeal process could have been made available at the time of the trial, if any of them, rather than Dr Nimmagadda, had been instructed. The doctors now relied upon had confirmed that the information which they had used to formulate their opinions was that contained in the medical records, which pre-dated the offence, and in the statements of those who had been in contact with the appellant in the period leading up to the offence. This was particularly relevant when the obvious line of enquiry for the defence at the time of the trial had been the mental state of the appellant.
[108] The appellant had been legally represented at trial. There was no ground of appeal or referral based upon an allegation of defective representation. The only obvious line of enquiry for the defence had been the mental state of the appellant. Steps had clearly been taken in that regard. None of the reports prepared post conviction contained any material that could not have been led by the defence at trial. They all referred, in some degree or other, to delusional behaviour or beliefs, with reference to the black shadow, elevated mood swings and the masking of symptoms of mania. These were all points referred to by Dr Nimmagadda.
[109] Even if it had been accepted that a formal diagnosis of personality disorder had now been made in respect of the appellant, none of the psychiatrists supported the proposition that it had had any significant role in the appellant’s behaviour at the material time. The fact that observations post conviction supported a longstanding diagnosis, did not change the fact that the very same material had been available pre-conviction (Johnstone v HM Advocate (supra) at para [57]). In short therefore, the material now presented, having been readily available at the time of the trial, the test of reasonable explanation was not met (cf Reid v HM Advocate (supra)).
[110] If the reasonable explanation test had been met, the additional evidence could not have had a material bearing on the critical issue at trial. No miscarriage of justice can be said to have occurred (see Megrahi v HM Advocate (supra)). At the trial there had been a cogent body of evidence against the appellant to demonstrate that the plea of diminished responsibility had not been established. Whether the offence had been committed at a time when the black shadow had been present, or when the appellant had been in a hypomanic state, was a matter for the jury. Evidence had been led about the appellant’s behaviour, such as might have indicated such a state. The jury unanimously rejected this evidence. Dr Baird had founded upon the statement of EH. She could have been adduced by the appellant at trial. The jury had heard the evidence that the appellant appeared to be mentally well in the run up to the killing. They had been presented with a significant body of evidence that suggested that the appellant’s responsibility had not been diminished. There was no realistic prospect that the jury would have come to a different verdict, had they heard the evidence of the new psychiatrists.
[111] The evidence prayed in aid of the appellant’s hypomanic state consisted of his increased energy levels, participation in new activities, increased confidence, extra-marital affairs, pre-occupation with personal appearance and increased spending. All of this behaviour, although not thought to be necessarily indicative of manic symptoms, had been before the jury. Dr Nimmagadda had given evidence that at the material time the appellant had been in a manic or hypomanic state. The views of the new psychiatrists were based almost entirely on the evidence of the appellant’s children to the effect that, at the time of the killing, the appellant’s mood appeared elevated and that he was thus in a manic phase. Again, this had been before the jury and rejected by them.
[112] The jury had been well aware of the appellant’s mental illness. The appellant founded upon the in-patient assessments. However, the only discrete piece of evidence that developed over time was the appellant’s returning memory and the role of the black shadow. Not one of the doctors, upon whom the appellant relied, could give a concluded answer as to what would have been achieved by a period of in-patient assessment beyond on-going treatment, care and observation. None of them could point to any particular feature, since the appellant’s transfer to the State Hospital, that would have assisted in supporting a plea of diminished responsibility. A better understanding of the appellant’s illness would have had no material bearing on the jury’s consideration of the issue of diminished responsibility. Although Drs Clark, Black and Pasupuleti appeared to set aside the black shadow and support the plea of diminished responsibility on the basis of a hypomanic episode alone, no new information regarding what symptoms the appellant may or may not have been suffering from at the time of the offence was presented in any of their opinions.
[113] Much of the fresh evidence revolved around information provided by, and observations of, the appellant. During the course of his evidence at trial, the appellant had made a point of demonstrating that he had managed to dupe medical professionals. The appellant contended that the jury’s view of his cross-examination may have differed had the evidence of the new psychiatrists been available. However, there was nothing to suggest that this would have resulted in a different verdict. If Dr Baird’s finding that the appellant could appear well when he was more unwell was new (which was not accepted), this issue had also been aired in the evidence of Dr Nimmagadda, who had confirmed that it was easier to disguise the symptoms of mania than those of depression.
[114] The new evidence did not present any new findings or symptoms upon which the jury might have come to a different verdict. In this respect, it was important to have particular regard to the report of the trial judge, in which he concluded that he was not persuaded that the evidence advanced by the new psychiatrists would have had a material bearing on the jury’s consideration. He had expressed the view that the reasonable explanation test had not been met, because the underlying material upon which the new experts sought to base their opinions was all available pre-trial (see Johnstone v HM Advocate (supra) at para [20]). If, however, the appellant’s appeal were sustained, the appropriate disposal would be a quashing of the conviction. In those circumstances, the Crown would move for authority to bring a fresh prosecution upon the charge of murder (1995 Act, ss 118 and 119).
Decision
(1) Evidence not heard at trial
[115] Doctors Black, Clark, Pasupuleti, Baird and Bartlett did not testify at the appellant’s trial. In that limited sense their evidence “was not heard at the original proceedings” (Criminal Procedure (Scotland) Act 1995, s 106(3)(a)). However, much of the content of their testimony related to the extent of their knowledge of the appellant. This had been derived from the medical, especially psychiatric, records detailing the appellant’s history, versions of accounts given (or to be given) by witnesses at the trial and the appellant’s own description of his life and the events surrounding the killing. This information, in so far as it competently proved fact, was heard at the trial in primary form from: the various doctors who spoke to the records and to seeing the appellant both before and after the killing; the other witnesses, who testified to observing the appellant at or about the relevant time; and the testimony of the appellant himself.
[116] Isolating the evidence which was not heard at trial is not straightforward. However, it would obviously include observations on the appellant post-trial and also any opinions describing a new aspect of the appellant’s mental state. This, in turn, might encompass the specific personality disorder diagnoses. It could be said to embrace the new psychiatrists’ opinions on the appellant’s mental state, even if they were identical to the views of Dr Nimmagadda, which were expressed at the trial. After all, the statutory test relates to “evidence” not heard at trial and not to “facts” not so heard. On this basis, a new (ie different) witness speaking to the same facts or opinion as given at the trial might qualify under this part of the test. Thus a new eye-witness account of a crime or its perpetrator may be regarded as evidence not heard at a trial despite the presence of other, perhaps less reliable, witnesses who saw and testified to identical circumstances. A different expert’s opinion may properly be regarded as “new”, even if identical to that of a less skilled, experienced or knowledgeable colleague, because it comes from a different, albeit similar, source. Whether such evidence can be regarded as significant is, however, a different matter (cf Johnstone v HM Advocate 2013 SCCR 487, LJC (Carloway) at para [57]).
(2) Reasonable explanation
[117] It can easily be said that there is a reasonable, if again obvious, explanation for the evidence of the observations on the appellant, after his transfer to the State Hospital (or indeed post conviction), not having been heard at the trial. These events post dated the trial. However, the significance of this evidence was peripheral in the context of both the diagnoses of the appellant’s mental illness and the new experts’ views on the link between them and the killing. Contrary to the contention in the Note of Appeal, the views of the appellant’s new psychiatrists and psychologist on these critical issues of fact did not depend upon these observations. Rather, these showed that the appellant was usually depressed, but not in a disturbed mental state. The diagnoses and views of the new psychiatrists on the appellant’s mental state and the causes of his actions at the time of the killing would have been the same, irrespective of the post transfer observations. They depended almost entirely upon the same material as had been available at the trial, viz. the appellant’s personal history, the records of his mental state over time and the appellant’s various accounts of these matters as understood by the particular reporting psychiatrist. The real issue is accordingly whether there is a reasonable explanation for these psychiatrists not being called at the trial.
[118] It would, no doubt, have been surprising if all of the psychiatrists now called had been instructed to appear at the trial in what appears to have been a legally aided case. Sanction for the instruction of an expert would have been needed and, in the context of legal aid funding, instructing additional experts privately would not have been permitted (Legal Aid (Scotland) Act 1986, s 32). In a case of this seriousness, sanction for a second or further opinion ought to have been granted (Criminal Legal Aid (Scotland) Regulations 1996, reg 14). It seems that it was, given the instruction of Dr Nimmagadda after the appellant had already obtained the views of two psychiatrists, namely Prof Misra and Dr Campbell, and a psychologist, namely Dr MacPherson. No actual reason was provided during the course of the appeal hearing for the instruction of Dr Nimmagadda. A number of possibilities were canvassed, but none vouched. It is equally likely that the appellant, or his advisors, as a conscious defence tactic, had decided to seek an expert from outwith the local jurisdiction. Be that as it may, the short point remains that there is no explanation, reasonable or otherwise, as to why one or more of the new psychiatrists or the psychologist, most of whom are very well known in criminal legal circles, could not have been instructed pre-trial to provide a second opinion following upon the receipt of Dr Campbell’s negative view of the appellant’s proposed defence.
[119] In Kalyanjee v HM Advocate 2014 JC 233 the court (at para [76]) emphasised, albeit in a slightly different context, that, if it is being asked to consider why a particular decision was taken in the original proceedings, it would expect there to be evidence about that from the appellant and his then legal advisers. In this case, such evidence would have explored the issue of whether there was an explanation for the new experts, or at least one of them, not having been instructed at the trial stage. Quoting directly from Kalyanjee (ibid):
“… the stark reality is that there has been no explanation of that issue. No contemporaneous material which might have thrown light upon this area, such as consultation notes, was made available.”
The appellant made passing reference ex parte to perceived difficulties in securing documentation of past events, but this did not provide the explanation (and there must be one) for the selection of Dr Nimmagadda in preference to the psychiatrists who became appraised of the appellant’s situation post trial. It is also worth observing that the court was not provided with the reports obtained by the defence from Prof Misra or Dr MacPherson. It was not advised of the defence’s considerations or instructions once their reports, and that of Dr Campbell, had been considered.
[120] It is contended that the cause of any deficiency was the original failure to remand the appellant to the State Hospital at full committal. Such a remand would, it is said, have been justified upon the basis of Dr Gow’s report of 1 August 2007. However, Dr Gow, who was a registrar at the time, had recommended further psychiatric assessment primarily because of the appellant’s belief that his wife was not dead. The appellant had also referred to the black shadow interfering with his thoughts. By the following day, he was no longer maintaining that belief. Dr MacDonald, a consultant, had re-assessed the appellant. The appellant had made no mention of the black shadow. Dr MacDonald’s report was that the appellant had been “entirely mentally well”, albeit that he had a diagnosis of a bipolar affective disorder with episodes of hypomania and depression. Both reports had been instructed by the Crown, who have a duty (1995 Act, s 52) to bring “such evidence as may be available of the mental condition” of an accused person where it appears to them that “the person may be suffering from mental disorder”. This obligation is intended to be a protection for an accused who may not be sane and fit to plead. Given that the Crown had a report from a consultant psychiatrist that the appellant was sane and fit to plead, “at present mentally well” and did not require hospital treatment or further psychiatric assessment, they can hardly be faulted for not moving for a remand to the State Hospital.
[121] The contention, that the Crown ought to have instructed a third opinion, presupposes an anticipation on their part that a different diagnosis might have been reached upon further assessment. In hindsight, that may have been the case. However, by the date of full committal, the appellant had been legally represented. It was for the defence to ingather such psychiatric material as they deemed appropriate to ascertain both the appellant’s fitness to plead and his mental state at the time of the killing. They did this. Reports from Prof Misra and Dr MacPherson were obtained. These were apparently not supportive of the appellant’s defence. A further view, in the form of a detailed draft report, was obtained from Dr Campbell at the State Hospital. She considered that the appellant was sane and fit to plead and not suffering from any significant mental illness. She stated expressly that there was no requirement for further psychiatric assessment in an in-patient setting. In all these circumstances, there is little substance in the contention that the opposite ought to have taken place, based as it is on the views of psychiatrists (other than Dr Gow) who had not seen the appellant at or about the material time. They did not see him until after his transfer to the State Hospital in July 2009; two years after the killing.
[122] A reasonable explanation for the new evidence not having been heard at the trial is an essential key, required to unlock the door to a successful appeal based on that evidence (Campbell v HM Advocate 1998 JC 130, Lord McCluskey at 167). In this appeal, that door remains locked.
(3) Significance of evidence
[123] The court has had the advantage of considering the evidence at trial in the form of the transcriptions of the testimony of many of the lay witnesses and the trial judge’s report of the psychiatric evidence. It has been able to form a clear view of the events leading up to the killing. It is a striking feature of the case that, contrary to the accounts of the appellant’s mental state given by the new psychiatrists, there is no substantial body of evidence from which it can reasonably be concluded that the appellant was in a hypomanic state at the time of the killing.
[124] In any assessment of this issue, a jury would be bound to give prominence to two central strands of testimony. The first is the lay witness evidence, which happens to come from, amongst others, two doctors in the form of the appellant’s sons along with his daughter, mistress and later the police. The adult children, in particular, had a lifetime of experience in gauging the appellant’s mood. They knew when the appellant was in an elevated or depressed state. Their evidence was that, at or about the day of the killing, the appellant was “fine”. Apart from buying a bottle of whisky for LM’s babysitters, there is no evidence that he had done anything manic that day or in the days leading up to the killing. The opposite is the case. The appellant’s mood was regarded as “fine” by all those who had seen him; doctors and lay persons alike.
[125] There is a curiosity in this context. At the time of the trial, there was evidence available, but not adduced, from EH about what the deceased had said about the appellant’s conduct. There was the alleged rape, some weeks prior to the killing. There was the appellant’s foul, rather than manic, mood state on the night before the killing and his staring at the deceased from the end of the bed. EH’s description of the appellant’s engagement with the deceased on the afternoon before the killing was different from that of the appellant. Whereas the reports of the content of EH’s statement (which is all the court has) are indicative of a woman trying to avoid the attentions of an adulterous husband, the appellant’s account at trial was one of domestic normality.
[126] The appellant elected not to call EH. There were very good reasons for this, since she appeared to contradict the appellant in a number of material particulars. Were the defence to seek to rely upon Dr Baird, that option would not be open. Be that as it may, EH does not speak to any comment by the deceased which describes elevated mood on the part of the appellant at or about the relevant time. The text, sent by the deceased shortly before her death, makes no mention of manic, as distinct from angry, behaviour.
[127] The police, who arrived on the scene very soon after what must have been a frenzied attack, did not describe the appellant as manic. Quite the opposite, he was calm and in control. This affect continued throughout his interview, in which he made no mention of having felt elated. Rather, he was providing an account of his mental state being controlled by medication. On that matter, the appellant’s account of not taking his lithium was simply not borne out by the testing carried out by his GP within a month of the killing or by the police surgeon shortly after the killing. It does not coincide either with the appellant’s own statement that he had taken lithium before going to bed in the hours before the killing.
[128] The second strand of testimony comes from the doctors who saw the appellant before and in the aftermath of the killing. There appears to be unanimity in understanding of the appellant’s mood. It is acknowledged by all that the appellant has either a bipolar affective disorder or a schizoaffective disorder, having acquired this unusually late in life in about 2001. However, his treating psychiatrist, Dr Matson, considered that the appellant had no abnormality in his mental state when he saw him less than a month before the killing. The appellant’s GP, who had also seen him within such a timescale, shared that view. The police casualty surgeons, who saw the appellant within hours after the killing saw no signs of mental disturbance. His mood was not elevated. It was flat. It is true that both Dr Smith and Dr Gow regarded him as psychiatrically unwell, but neither described him as a person in a hypomanic state. Indeed, Dr Gow said that his mood had not been elated, but his affect blunted.
[129] Although the contention is that the appellant’s mood could quickly swing from mania to depression, there is simply no evidence that he was ever in a state of hypomania at or about the time of the killing. Even the appellant’s account at the trial was hardly descriptive of such a state. Rather, it is of being woken by the deceased banging on the bedroom door, being attacked by her and reacting to that prior to the appearance of the black shadow.
[130] The testimony of the appellant is problematic. There may be an inherent difficulty in assessing the account of someone who is, at least from time to time, mentally unwell. It was correctly recognised in the appeal that the jury may well have reached a sceptical view of his account, especially that of the black shadow’s role, against the background reports of his mental stability and the discrepancies in his own account of events, including partial temporary amnesia, over time. Although it may be legitimate in psychiatric terms to dismiss the black shadow as an artefact (a product of his mind), it formed, and continues to form, a major supporting column for his own version of events. The general veracity of his account would be bound to play a central role in any determination by a jury of whether he had proved diminished responsibility; the onus being on him.
[131] In order to succeed in this appeal, the appellant requires to demonstrate that the new psychiatric and psychological opinion is of such a kind and quality that it would have been likely to have been of material assistance to a jury on a critical issue in the original proceedings (Kalyanjee v HM Advocate (supra), LJC (Carloway) at para [81] following Megrahi v HM Advocate (No. 4) 2002 JC 99, LJG (Cullen) at para [219]). The question is whether, set against the background of the trial evidence as narrated above, a reasonable jury could, on the basis of this new body of opinion, have found that, at the material time, the appellant suffered from an abnormality of mind which substantially impaired his ability, as compared with a normal person, to determine or control his acts or which affected his ability to form a rational judgment as to whether a particular act was right or wrong or to decide whether to perform it (ibid adopting the test in Galbraith v HM Advocate (No. 2) 2002 JC 1, LJG (Rodger) at para [54]).
[132] As already observed, any new evidence concerning the appellant’s conduct after his transfer to the State Hospital did not play a material part in the new psychiatrists’ view that the appellant had particular mood and personality disorders which would have affected him at the time of the killing. Any advantage which was to be had from noting these observations (and few particular episodes were highlighted during the course of the appeal) would be counter-balanced by the fact that none of the new psychiatrists reading the observations or treating the appellant post trial had had the advantage of seeing him prior to, or in the immediate aftermath of, the killing.
[133] Dr Baird gave evidence that the appellant could appear well when he was unwell. This is said to constitute significant new evidence. However, at the trial it had been essential, if the jury were to accept the defence, for the appellant to have shown that he had only appeared well to those with whom he had contact, since they had testified that he seemed “fine”. The appellant attempted to demonstrate this in two different ways. First, he set about explaining that he could fool even the doctors by adjusting his behaviour and manipulating his drugs regime. Secondly, he led evidence from Dr Nimmagadda that he could seem well when he was not. Dr Baird’s view to a similar effect is not novel, even if his opinion may be regarded strictly as new evidence. The jury rejected the appellant’s version of events and, presumably, Dr Nimmagadda’s evidence in this limited sphere. There is no reason to suppose that a jury would have found an identical psychiatric opinion of value when set against the compelling background of otherwise apparently normal behaviour prior to the killing, which was testified to by all those who knew the appellant well.
[134] It is difficult to grasp just what material bearing the evidence, that the appellant could just have been in a hypomanic state and that this alone could have affected his judgment, might have had on the jury’s deliberations. If by the use of the term “artefact” is meant that the appellant had somehow subconsciously created the black shadow from the dark recesses of his mind, then the jury’s acceptance of this new approach would remove the core of what was and, so far as is known, still is, his defence; viz. that he was told to kill his wife by this construct. If the defence were to have led evidence to this effect, its import would have been to undermine and not bolster the actual defence presented initially in the appellant’s version of events. Yet that appears to be the effect of the evidence of Drs Black, Clark and Baird. It would have left the defence standing upon the limited basis of a hypomania which was not, and could not have been, proved to have existed at the time. In short, the effect of this new evidence would have been adverse to the defence.
[135] It can be said that there is now a body of psychiatric evidence which supports Dr Nimmagadda’s opinion at the trial. There is equally a substantial countervailing view that does not. Ultimately, in determining whether a miscarriage of justice has occurred, and in particular whether a jury could now reach a different view, the court must take an overall view of the circumstances (Brodie v HM Advocate 2013 JC 142, LJG (Gill) at 151). The analysis of Dr Crichton remains particularly convincing in relation to the series of questions which he posed (supra) relative to the presence of the black shadow. That apart, it cannot be said that the new evidence, when seen in the context of the known facts as spoken to in the testimony at trial, could have had a material influence on the jury’s consideration of diminished responsibility at the trial. It would, like the almost identical evidence of Dr Nimmagadda, have been rejected for the same reasons. The court is reinforced in its conclusion in this area by the view of the trial judge who, having alone heard the full testimony adduced at the trial and being fully appraised of its subtleties, considered that the new evidence could not have produced a different verdict. The trial judge’s impression in such matters should be regarded as one of some importance in the context of determining the central issue of whether a miscarriage of justice has occurred.
[136] The remaining component of new evidence for consideration is the diagnosis of an obsessive compulsive personality disorder. However, the psychiatrists did not consider that this could have affected the appellant’s actions at the time. Dr Black thought that it would have made the appellant more cautious. Dr Clark did not consider that the OCPD had caused the appellant any difficulties. Dr Bartlett did not consider that the appellant had an OCPD. Dr Crichton did not think it (or the bipolar disorder) had a major bearing on events. In such circumstances, and despite the views of the psychologists, this aspect of the appeal cannot be sustained.
[137] The appeal must therefore be refused. Had it been allowed, the effect would have been to quash the conviction. Since the evidence bearing upon diminished responsibility would have remained in conflict, the only possible consequence of such a decision would have been a re-trial.