JOHN HEMPHILL v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Cameron of Lochbroom Lord Milligan Lord McCluskey | Appeal No: 82/67 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in NOTE OF APPEAL AGAINST CONVICTION by JOHN HEMPHILL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: M. Scott, McLaughlin; Livinstone Brown
Respondent: Gilchrist, A.D.; Crown Agent
27 April 2001
[1]The appellant was found guilty in the High Court at Glasgow on 24 August 1995 of the murder by shooting of Sarah Jane Cannon at her house at 33 Kelburn Terrace, Port Glasgow. Special defences of alibi and incrimination were lodged on behalf of the appellant. Evidence in support of the special defence of alibi, but not of incrimination, was led. At a hearing of the appeal on 23 May 1996 the appellant was appointed to lodge additional grounds of appeal together with supporting affidavits. Following further procedure additional grounds of appeal were lodged. But in August 1999 substitute grounds of appeal were lodged and it is by reference to these that the appeal proceeded before this court.
[2]The grounds of appeal are four in number, but Miss Scott intimated that she was not arguing the first ground. This ground was to the effect that the evidence relied upon by the Crown was circumstantial and of a quality such that no reasonable jury properly directed could have convicted. Miss Scott accepted that the evidence before the jury, though circumstantial, was sufficient to entitle the jury to return the verdict that they did. The second ground was directed to an alleged misdirection by the trial judge. In the course of his charge he had made reference to evidence which indicated that the deceased was likely to have been shot first while she was still in the flat and further evidence that the door had not been forced, as being material from which it was open to the jury to infer that the deceased had known her assailant and that the assailant had either been let in to the house by her or was able to let himself in. The trial judge had further reminded the jury that, as far as he could make out, the evidence was that no one knew of anybody who was likely "to have done this to her". The trial judge had suggested that such material constituted a circumstance which, together with other evidence available, pointed to the appellant as the assailant. However, Miss Scott did not insist upon this ground as it stands. The material referred to by the trial judge was, we consider, sufficient to constitute a circumstance to which, in the context of the evidence led at the trial and as presented to the jury, the jury were entitled to have regard in determining whether or not the appellant was proved to have been the deceased's assailant. Rather Miss Scott concentrated upon the third and fourth grounds. These are as follows:
"3.On the basis of the existence and significance of new evidence which was not heard at trial. At trial evidence was led from a witness Alexander McCulloch who stated that he identified the appellant in the back court at the locus between 12.30 and 12.45 am and heard him making threats (Charge at p20). The said evidence was important and relied upon by the Crown in that it contradicted the appellant's alibi in his statement to the police and placed the appellant at the scene issuing threats to a woman some time prior to assistance being summoned. Subsequent to trial the said witness McCulloch made statements to others, including Joseph Dolan and Thomas Miller, that the evidence he gave was untrue. His position now is that he could not identify the man he heard and had assumed it was the appellant because he thought he had a flat there; that he thought the time was 12.45 but could be wrong by 15 minutes either way; and that he had been induced by police officers to positively identify the appellant at trial with the promise of police support to obtain a new house. Subsequent to trial the witness was re-housed. Subsequent to trial assessment of the said witness by a clinical and forensic psychologist places him in the borderline mentally handicapped range of intellectual functioning and suggests some unreliability in his giving of statements.
4.On the basis that there was inadequate preparation and conduct of the defence case by the appellant's solicitors and counsel whereby important and significant witness, forensic and medical evidence was not produced in the appellants defence. At trial important evidence relied upon by the Crown concerned, first, the evidence of blood spotting on the appellant's clothing (Charge p22) and secondly the evidence from the pathologist, Dr Cassidy, that, after being shot twice in the head, the deceased would have stopped breathing within seconds and would not have been able to cough (Charge p19 and p23D). The appellant had stated at interview with the police that when he held the deceased she was still breathing and that there was blood coming out of her mouth and air bubbles (Crown Production no47 p10).
Prior to trial, agents for the appellant instructed a James Dunlop, Forensic Scientist and an Alistair Paton, forensic firearms expert, to examine the Crown productions and reports lodged. By letter of 14 August 1995 (attached), the said Mr Dunlop indicated inter alia that in his view it was conceivable that an attempt by the deceased to speak or cough after her injury would result in the spots of blood on the appellant's clothing. By telephone the said Mr Dunlop indicated that spattering could have occurred due to any exhalation of air when the body was moved (File note dated 11/8/95 - attached). By letter of 13th August 1995 (attached), Mr Paton suggested inter alia (a) that movement of the deceased whilst still breathing might spray the frothy blood stained fluid (noted in the casualty surgeon's notes) and account for the blood spots; (b) that, whilst he was not medically qualified, it was well documented that catastrophic head injuries do not necessarily produce instantaneous death, and (c) it could fairly be expected that the firer of the weapon should have firearms residue on one or more hands and probably on his clothing.
In conducting the appellant's defence his representatives failed to:
(a)Precognose any of the Crown expert or forensic witnesses and in
particular failed to precognose Dr Cassidy;
(b)Investigate the question of the timing of death and in particular consult
or consider other pathologists' opinions on same;
(c)Failed to precognose the witnesses at the scene with the appellant on
the finding of the deceased and ask whether they saw the deceased breathing - affidavits from the Crown Witnesses David Jackson and Sharon Bryce attached;
(d)Failed to call the said Mr Dunlop and Mr Paton to give evidence."
[3]The general character of the evidence before the jury upon which the Crown relied, is to be found in the trial judge's report. In the first place, there was evidence that the appellant and the deceased had not been getting on very well in the last few months of the deceased's life. In an interview with police officers on 29 April 1995 the appellant had stated that an argument had taken place between him and the deceased three days before her death, when the appellant had struck her. Following on this incident, the deceased had told a friend that she and the appellant were breaking off their relationship. In the second place, there was evidence from two witnesses that they had seen a small handgun in the flat where the appellant and the deceased had lived about eighteen months before her death. Both had drawn sketches of the gun. One, the appellant's brother, said that it was a replica but had previously told police officers that it was a real gun. The other said that he thought that the gun was a toy gun. In the third place, there was evidence directed to the nature of the killing. The deceased died after having been shot three times. One gunshot wound was to the mouth, the remainder to the right side of her head. From the forensic and pathological evidence it appeared that the first shot was fired at the deceased while she was in the hallway of the flat where she lived. This was on the ground floor. There was no sign of forced entry. There was blood in the flat and parts of broken tooth from the deceased were found within and just outside the front door. There was a trail of blood, some of which could have been caused by the deceased having spat out blood, which led from the ground floor up to the second floor landing to a door of a flat there. The body of the deceased was found on the first floor landing in a large pool of blood from the wounds to her head. The pathological evidence was that the two further gunshot wounds had been sustained after the deceased had come down from the second to the first floor landing. One or both of these gunshot wounds had been the cause of death. There was no evidence of powder burns surrounding any of the three gunshot entry wounds. Evidence was given by the occupants of a flat on each of the first and second floors. They said that they had heard nothing of the incident until they saw the appellant in the building with his brother, which was estimated to have been around 0120 hours. The occupants of the top floor, who had a dog, said that they would have heard anyone at their door at an earlier stage, and so would the dog if any person had been shouting or banging on the door of the flat. Similar evidence was given by one of the occupants of the flat on the middle floor. In the fifth place, the evidence of the forensic pathologist was to the effect that the deceased, having been shot twice in the head, while she was on the middle landing, would have stopped breathing within seconds and that she would have been totally dead within a period of five minutes after being shot.
[4]Identification of the appellant as the murderer was dependent upon three separate sources of evidence. The first source was evidence given by two individuals, the first being Alexander McCulloch. He lived at 31 Kelburn Terrace. In evidence in chief he stated that he knew the appellant. His flat looked over the back of 33 Kelburn Terrace. He spoke to hearing a lot of shouting and bawling at a time which he said was between 1230 and 1245. He had looked out from his window across to the back of 33 Kelburn Terrace. The only flat with lights on was that in which the deceased lived. The voices sounded like male voices. He had then seen the appellant run out from the back of the close, turn and run back and into the close. He had heard the appellant say, "You're fucking getting it ya bitch" as he did so. Two or three seconds later he had heard a high pitched squeal which lasted two or three seconds. He had heard no shots at any time. The whole incident had lasted about five minutes. In cross-examination, however, he said that the shouting was coming from the close and that what he had heard was a male and female arguing in the close. He was asked about the quality of the lighting but remained adamant that he had seen the appellant. In re-examination he said that he had looked at his watch just before and that it was certainly at some point between 1230 and 1245. His sighting of the appellant at or in the vicinity of 33 Kelburn Terrace that night was thus at a time which appeared to be inconsistent with timings to be inferred from an account of his movements given by the appellant to police officers at interview on 29 April 1995. In the course of the interview the appellant stated that he had been in his brother's house watching television and had left the house to go to 33 Kelburn Terrace after the end of a film, "Alien Nation". There was other evidence from television schedules that this film had finished at 0103. The evidence of the other Crown witness, Rose Bonnar, was summarised by the trial judge in his charge at page 21. He introduced this evidence as evidence which did not seem to fit in with the Crown case and that might well, if anything, fit in with the defence case. This witness had spoken to coming along Kelburn Terrace about 1250 at which time the appellant was coming towards the close at 33 Kelburn Terrace and went in. When she passed the close she looked in but saw no one. She had gone on and had then seen the appellant come out. He shouted something to the effect, "Did you see anyone?" or "Did you see anything?"
[5]The second source of evidence was derived from forensic examination of the clothing which the appellant had been wearing on the night in question. His jacket and a pair of jeans were found to have the deceased's blood on them and, in particular, tiny spots of blood were observed on each of them, which, according to the witness, Burt, a forensic scientist, could have come from a spray of blood resulting from a gunshot wound. This witness gave evidence on the fourth day of the trial. The forensic report prepared by this witness (Crown production number 31) stated that, on examination, the jacket was found to have heavy bloodstaining on the upper front and left sleeve with very small spots of blood noted across the middle front of the jacket. On the jeans several small spots of blood were noted on the front and back of the left leg. In his evidence, this witness spoke of examining the area by the door of the second floor flat and, in particular, noting some fairly fine spots of blood just below the letterbox and smears of blood in a pattern of parallel lines across the bottom of the door. As regards the appellant's jacket, he thought that there about 10 very small spots across the middle front which appeared to be identical in size one with another. These spots were too small to see clearly. The spots on the left leg of the jeans were slightly larger in size than those on the jacket but not very much larger and were similar in size one with the other. The witness was asked about, but could not account for, a pattern of parallel lines of bloodstaining across the bottom of the door of the second floor flat. He explained that smears of blood were caused by some form of contact and that the spots of blood must have been produced "by a degree of force in order to produce fairly small spots". The fine spots of blood required "a degree of energy to break up the blood" and the smaller the spots the greater degree of force to produce them. He agreed however that evidence to the effect that the appellant had cradled or cuddled the deceased would be consistent with the heavy bloodstaining noted on the jacket. However, when asked what was the likely mechanism to explain the presence of the very small spots, the witness replied that they would not have come from any form of cradling. He continued:
"As I was saying earlier, the spots of blood were very small and there must have been a great deal of energy put into the system in order to get the small spots, so a gunshot wound would be an example of that: that could create the small spots of that nature...
How could the gunshot wound produce that? - Because it would break up the blood and produce very small, fine spots of blood.
So what would that therefore tell you about the very small spots or what might it tell you about the very small spots on this jacket? - Well, you would have to be pretty close to the person in order to get those small spots on you because they would only travel for a maximum of 2 or 3 feet.
So you would have to be a maximum of 2 or 3 feet from the person shot? - Yes.
At the time of being shot? - Yes.
Could the very small spots on the jacket, could they have been caused - if another possibility say by frothy, bloodstained fluid coming from the mouth? - No.
Why not? - Because as I was saying earlier you would need a great deal of force to produce small spots of blood of that kind and just a bit of froth from the mouth wouldn't create that.
And supposing another scenario, if it be the case that there has been evidence to the effect that Mr. Hemphill assisted someone else in moving the deceased carefully, not violently, could such careful moving of the deceased have accounted for the presence of such very small spots? - No.
Why not? - Because as I said earlier again, you need a great deal of force to produce small spots of blood of that size."
The witness then was asked about the small spots of blood on the jeans and reiterated that the same mechanism would be required in the form of a lot of energy in some form to create them and the individual wearing the jeans would have to be fairly close to get them on the jeans. The witness was then asked:
"Do you mean at the time the wound was inflicted? - Yes.
And you say fairly close, what distance would you...? - Again about 2 or 3 feet."
Again have you excluded the other possibilities I have put to you? - Yes.
If it be the case that in this particular case there are three wounds, that is to say, one underneath the mouth and two to the back of the head but if it be the case there is evidence that in relation to one of those two puncture wounds to the back of the head that one of them was initially obscured by the fact that hair had been pushed into the wound and it was only when the hair had been pulled out of the depth of the wound that the puncture was noted, might that have an effect on the wound? - You would be less likely to get spots of blood emanating from the wound if they were shrouded in some way by the hair.
If it be the case then that apart from the one initially obscured, there was the wound to underneath the mouth and the other wound not apparently initially obscured, do you have a view as to the likely source of very small spots on the jacket? - Well, both gunshots could have produced small spots of blood so it would be how the person was orientated to the victim when you could get blood spots in either case of them."
He also said that smears of blood found on the left leg of the jeans in the area of the knee would be consistent with the wearer cradling the victim, or just kneeling in a bloodstain or getting stains from her on his jeans in some way. In cross-examination, this witness accepted that he could not tell if all the spots on the jacket and the jeans were caused in the same way. He was then asked:
"When that girl died, shortly before she died was there any blood in her mouth? - I have no idea: I would assume so if she had been shot in the mouth...
Shortly before she died did she make one last violent effort to clear her airway and cough blood from her mouth, do you know? - I don't know: I wasn't there.
Had she done so what would have been the pattern of that blood, a last violent attempt to clear the airway, do you know? - Well, I believe that you would get larger spots of blood as well.
Indeed, but do you know precisely what the pattern would be? - Well, the pattern wouldn't be repeatable: if you did it twice it would be different the first time from the second, you wouldn't get exactly the same type of pattern or it wouldn't be of the same type.
Exactly. Was there anybody at that scene running around, agitated, waving their arms about, that person being contaminated with blood and spraying spots of blood in all directions? - There wasn't when I was at the scene.
Whether there had been earlier on you wouldn't know one way or another because you weren't there? - I wasn't there, yes.
What you can say is this, spots of blood come about because the blood has become airborne and has been moving with some force? - Yes.
Spots of blood therefore could be created by a number of means, one of them perhaps being as a reaction to skin splitting from contact, contact with a bullet head? - Yes.
But there could be other ways? - Yes.
And the spots were not caused necessarily at the same time or indeed by the same mechanism? - Not necessarily, no.
One simple question then, no guess, no perhaps, no consistent with. Did the spots result from a gunshot? - I couldn't say for certain, no.
RE-EXAMINED BY THE ADVOCATE DEPUTE
In light of what you saw as to her injuries and at the locus do you have a view as to the likely cause of those spots? - I think it is likely that they could have been caused by a gunshot."
[6]The evidence of this witness requires also to be considered along with the evidence of the Crown pathologist, Dr. Marie Cassidy, who had appeared as a witness on the third day of the trial. In her post-mortem report (Crown production number 27) she described three bullet wounds. In respect of the first wound, to the mouth, she noted that "there was blood stained froth in the mouth". In respect of all three wounds, there was no note of powder burns at or around the sites of the wounds. On internal examination of the head and neck, she noted that the brain had been kept for future neuropathological examination. There was no further information given about any such examination having been carried out. On internal examination of the chest, it was noted that the ribcage was intact, the pleural cavities were clear, but that the trachea and bronchi contained "abundant froth. The lungs...were bulky and well inflated but also showed oedema". The report also related that, following the post-mortem examination, and on the same day, both pathologists had gone to the locus. They had been shown where fragments of a tooth had been identified, both within the house and about the entrance door of the flat. They had also been shown blood staining in the house and on the stairs.
[7]In examination in chief, Dr. Cassidy described each of the bullet wounds. In the course of her evidence in chief she stated that either of the head wounds could have caused death but that the shot to the mouth could not have killed the victim. She said that in respect of the wound to the mouth, there was no surrounding soot or tattooing/powder burning. She referred to the presence of bloodstained froth in the mouth. In respect of the two wounds to the right side of the head behind the right ear, she stated that when the victim's body was first examined, there was blood in the area so that she and her colleague knew that there was possibly an injury within this area "and we then looked to see if there was any source of bleeding in this area and discovered the two wounds". She explained that they were "two very clearly separate wounds". She had had to part the hair that was covering the wounds to look for injuries. She was then asked:
"Now, so far as the hair is concerned, were you able to see any burning or singeing or soot in the hair? - No, there was no burning or singeing of the hair and there was no obvious soot or powder around the wound."
She went on to explain that one of the two bullet tracks had shattered the underlying skull and the bullet was embedded in the brain, while the second bullet had also shattered the skull to end in the immediately subjacent brain tissue. She said that the remaining gunshot wound had knocked out one of the lower teeth of the deceased and torn the tongue. The two injuries to the right side of the deceased's head had caused significant damage to the brain sufficient to cause her death. Then followed this passage:
"Now, so far as the damage to the brain is concerned caused by the two bullets that you have referred to, can you just explain to the jury what the mechanism would be that would cause death? - The actual physical damage that you can see to the brain was localised to the area behind the right ear. Really it is in relation to where the bullets had stopped within the brain and within that area there was bruising and some swelling of the brain tissue. Now, that type of damage would be insufficient to cause death. However, when you are dealing with bullet wounds which are high velocity wounds, where you have small objects penetrating the skull at very high speed and therefore with low energy, what happens is that when the bullet is brought to an abrupt halt when it hits the skull and shatters the skull, some of the energy is invested in breaking through the skull and then the rest of the energy will be spread into the brain tissue. It is almost like a dropping a stone into a pond. You can see where the stone hits the water and dents the water and then you see the ripple effect spreading out and you have got the same type of appearance with a bullet striking an object. You will get an indentation where it hits a surface. It is the kind of surface of the brain which will cause local injury with bruising but the shock waves will then spread through the brain and it is thus shock which is dangerous and it can cause an instant shutdown of the vital parts of the brain and will cause a person to drop dead very, very quickly.
Can you explain how the shock waves, what it is they actually affect and how that leads to the shutdown? - There have been a lot of studies done in the United States where they obviously see a lot more gunshot injuries than we do and there are two ways in which what would appear to be a very small area of damage, very localised damage due to a bullet can cause instant or almost instant death. Now, what can happen is it is almost like a mini explosion inside the head where you get a rapid filling of the inside of the skull due to the effects of the bullet and the pressure inside the skull rises and as it rises it causes pressure on the vital parts of the brain and that vital part of the brain is localised in behind, the back of your head, in one sense from the nose to the back here and there is pressure put on that which can actually stop vital centres which means that you can become unconscious, you stop breathing and your heart stops beating. In that type of damage to the brain you can sometimes...well, you do see small bruises where the pressure had impinged on this vital centre. In the case of Sarah Cannon that was not the evidence. The other way in which this type of bullet wound can cause death is by the shock waves travelling through the brain causing almost an electrical disturbance which again shuts down the centres of the brain and in particular the breathing centre and they actually stop breathing immediately and in that case the breathing does not recover and therefore the heart will stop and the brain will suffer from lack of oxygen so they will stop breathing, become unconscious and then die.
In your opinion in the light of what you say, what would you expect to have happened here? - The absence of any damage away from the spot where the bullet has struck is more in keeping with the later explanation where there is some electrical disturbance causing respiratory arrest.
And how quickly then in your opinion would she have become unconscious? - She would stop breathing almost immediately and the impact would cause her to be unconscious anyway.
Almost straightaway? - Almost straightaway, yes, so I would expect her to be unconscious and not breathing straightaway, her heart might continue for a short period of time but it would eventually stop as well.
How long would you anticipate in your opinion it would be before death would ensue with such an injury? - Total death would probably take a few minutes. Maybe five minutes or so until the brain is completely dead due to starvation or lack of oxygen but the heart will have slowed down and stopped by then as well so the actual process of being dead takes seconds, minutes, but literally it would only be up to about five minutes.
Now, you mentioned, and I'm just trying to understand as a layman...did you say breathing would stop straightaway? - Yes.
And in layman's terms, might that not indicate or how does one understand that someone could be medically not dead but not breathing because normally one has to be breathe to be alive? - Yes. Well, the body is terribly complex and you need a lot of interaction between different parts of the body to keep you alive as we are. One of the essential things is oxygen and we need oxygen to keep every part of the body alive and when you are starved of oxygen the body will start to die off and different parts will die off at a different rate but the point with Sarah Cannon is that breathing will have stopped or the process of breathing would be completely halted, her chest would not be moving so would not be taking in air or letting out expelled air which contains carbon dioxide and so when that happens then the other organs become starved of oxygen. They become irritable and the heart becomes irritable and eventually stops and then the brain will eventually stop.
How long would somebody's heart keep on beating for then r in this case what would your opinion be? - Well, we don't know for sure. The heart may have stopped immediately as well, I don't know, but there is a possibility that the heart could have continued beating for a short period of time and again it becomes a very short period of time, seconds to a minute or so.
Now, can you tell me, at the point in time then, because of the type of head injury it is, this breathing stopping...I don't known how you put it. Did you say instantaneously or almost right away or what? - The breathing would have stopped immediately after the impact of the bullet.
Would that not then continue for seconds? - No, if she had continued breathing then she would have continued to be alive because the amount of damage, the destruction to the brain due to the bullet alone would have been insufficient to cause sudden death or even death within a few minutes so the fact that she had died means that this must all have happened at the time of the shooting incident.
Now, what would happen then...after wounds of this nature are inflicted, what would be the effect on the mobility of the deceased person's reflexes to operate such as coughing? - Well, when you become unconscious you lose these reflexes and that is the problem of being unconscious. It is dangerous because you can choke or inhale material so your coughing reflex goes.
BY THE COURT: What causes unconsciousness? - Unconsciousness, my lord, is due to...in this case part of it is due to the actual impact of the bullet striking the head because what you are dealing with is a massive release of energy. It is sufficient to break bone and damage the brain and that kind of impact can cause someone to just become unconscious immediately but the other evidence is, as I say, the shock waves going over the vital centres and actually knocking out the vital centres and part of that is the conscious part of the brain so that the person would become unconscious.
EXAMINATION CONTINUED BY THE ADVOCATE DEPUTE: Now, is it possible that someone might...I mean, a person who has suffered an injury in this case, is it possible that such a person might seem to breathe although not actually breathing? Could that happen? - There are some things may mimic someone being alive... As we described in the report, she had a lot of frothy fluid in her airways and that is a consequence of the heart going into failure and stopping and that happens again very quickly, within a few seconds, and what can happen is this can bubble up into the mouth and sometimes out of the mouth.
Is that a fast process or a slow process? - Again it is variable, depending on how much froth there is and sometimes you can actually hear it gurgling and sometimes people assume someone is breathing because they hear the gurgling noise and see the fluid emerging from the mouth and say oh, yes, the person is alive and breathing and trying to cough or spit something out but it is just welling up inside of its own volition and just coming out.
For instance, is it possible for air say to be expelled from the chest of somebody who is in fact not alive? - Yes, when people stop breathing, if you put any pressure on the chest or move the body then you can get a release of air.
To get a release of air from the chest, would that require to have movement of the body? - Yes."
Dr. Cassidy was asked about the absence of soot or powder burns around the entry wound in relation to the mouth in the following passage:
"Now, can you tell us what conclusion you would draw from that as to the sort of firing distance that might therefore be involved? - Yes, as an average you can say that the weapon must have been about 2 feet from the body when it was fired because there is no evidence of soot or powder residue around the wound.
And so far as the wounds to the head are concerned, likewise in the light of your findings there, what would your view be in relation to that area? - It is a similar situation although hair can sometimes mask powder or soot staining and therefore it could be 2 feet or more but equally it could have been a little less.
When you say powder can be masked by the hair, in this particular case I understood you to say you didn't in fact see any. Did you look for some? - Well, you can look for tiny, tiny, little particles that you can't really see by the naked eye. It is easy to see it on the skin because it shows up as black but in this lady's case the hair was black and therefore I would not expect to see it. Also there was blood and a lot of blood around the head and that may well have washed anything off.
BY THE COURT: Did you have to wash the hair before you could disclose the wound in the head - Yes, my lord.
The hair was matted with blood, was it? - Yes, my lord."
From her examination of the locus she opined that large blobs of blood on the stairway leading to the first floor landing would fit with blood being expelled from the victim's mouth, spitting out of blood, following the gunshot to the mouth. She also opined that the two gunshot wounds to the head had occurred after the victim had returned to the first floor landing where she was found dead. She was asked about the fairly small amount of bloodstaining noted on the stairway leading to the first floor landing, which she connected with spitting of blood from the mouth. She was then asked:
"When the initial impact takes place with the bullet puncturing the skin would there be spurting or might there be spurting at that point? - There might be a small spray of blood from that but I would not expect it to have been spurting.
Would you expect a small spray of blood? - Well, there is local tissue obstructing the skin as it split apart and the small blood vessels in that area are torn apart and will bleed. Because of the speed at which this happens you have the sort of hit and then a sort of rebound effect from the blood coming out.
Now, in this particular case I think you have explained how the bullets didn't actually go, as I understand it, into the body of the brain itself? - That is correct.
I mean, in cases where you have a firearm which for whatever reason the bullet goes into the brain itself, might there be a situation where that would produce rather more obvious distribution of injuries than is apparent in the present case? - Yes.
In that sort of event would there be a greater potential for spattering or spraying of blood? - No, because the spraying of blood is coming from the damage to the skin and the damage to the skin is relatively small. As you can see from the photographs, the holes are very small.
Now, if in this particular case there is evidence to the effect that on the jacket worn by Mr. Hemphill there is, apart from heavy bloodstaining, there are 10 very small spots of blood likely to have come from the deceased across the middle front of the jacket and can I ask you then whether you would have any opinion as to the likely mechanism to account for such a phenomenon? - My understanding is that these were very small spots and the distribution is across the entire front of the jacket and these could be caused...it is technically not a true spray. These are small individual spots over a wide area and they have obviously been dispersed at high speed from the blood source.
In the light of what you saw in this case and in the light of the injuries and in the light of what you saw at the locus, do you have a view as to the likely mechanism in this case to account for the production of such spots? - One possibility is that these could have been caused as the bullet damage was caused to the head. As the skin was punctured there may have been small droplets of blood spread across.
When you say the head do you mean the mouth or the back of the head or any of the three? - Any of the three.
For instance, could the presence of any such small spots be accounted for or could they have been produced by for instance the deceased being grappled by or cuddled by the wearer of the jacket? - No, that type of pattern is not consistent with that. These are small droplets that are being propelled through the air and therefore grappling would not produce that type of spot pattern.
Spots, just so that we really understand, are there different types of bloodstaining and blood spots? - Yes, that is not my sphere of experience but I know the basic rules.
I will just put another possibility; in this particular case you have mentioned I think you noticed froth at the mouth area, is that right? - That is correct, yes.
If there was froth, was it bloodstained fluid? - Yes, there was obviously blood in her mouth from the bleeding injuries inside her mouth but there was froth coming out from her airways and that was mixing with the blood.
If someone, if say the wearer of the jacket came into contact with that frothy fluid by cuddling or grappling, could that account for the presence of any such very small spots? - No, because contact would just leave a blob of this frothy fluid or a smear.
And so in your view what would be the most likely explanation then to account for the presence of any such spots? - Well, as I say, in the context of the incident then these could have come when the injuries to her head were sustained.
At the time? - At the time.
So the wearer of the jacket, would that mean that they would have to be present at the time that the injury was being inflicted? - Yes, if that was the cause.
And if likewise about seven small spots of blood were noted, if there was evidence that there were seven small spots of blood on Mr. Hemphill's jeans, if there is evidence that that is likely to have come from the deceased, would your explanation be the same for that also? - Well, again we actually need distribution from the chest down the leg and again it would depend on the precise pattern of spread but it could have been if for example Miss Cannon was on the ground and was shot while on the ground, there may be a few spots coming back on to the leg.
If in relation to the jeans the position is they are noted at the front of the left leg down to more or less thigh height, more at the front than at the back, would what you have said fit with that? - It could do."
In cross-examination Dr. Cassidy confirmed that she had not herself examined the appellant's clothing nor did she carry out any examination of blood spotting at the locus. She had been given information about the state of the blood on the clothing to the effect that "it had been mixed with saliva and there was evidence that there was saliva on the jacket." She was asked to give a view as to the distance that the muzzle of the gun would have been from the deceased's face when fired and stated that "As an average, you can say about 2 feet. Unless you fired the gun you can't be more accurate". She explained that she did not know anything about the weapon. She had assumed that the weapon was fairly low velocity because of the impact damage. She was then asked:
"So you and your colleague can come up with the view that it is probably low velocity. Can I suggest to you that if your evidence were more accurate...all you can say is that this gun must have been no less than 2 feet and that is explained by the absence of soot and powder burns? - I'm sorry if I misled the court by saying that it was specifically 2 feet. All I am saying is it could have been, it had to be at least 2 feet."
She then agreed that her area of expertise was not in the area of bloodstains and the spread of bloodstains. She further agreed that she had only been involved in one case involving "the actual mode of death", which was the present case. She was then asked:
"So you have no personal prior experience of cases where the mode of death is as you have suggested it might be in this case? - That is correct.
I take it then that the opinions that you have expressed were based on material that you have gained by reading books or published articles? - That is correct, yes.
Which ones? - Two recent articles in the Journal of Neurosurgery, one written by De Mayo and the other was another American group. I'm afraid I'm not very good with names so I can't remember but the papers were written in 1987 and 1989 and they had done a study on this type of case."
[9]Subsequently in cross-examination Dr. Cassidy was asked about that part of the brain which controlled breathing. She explained that the vital centre, the respiratory centre, was housed in the brain stem. She was then asked:
"And if I understand your gleaned theory from 1987 and 1988 which is that there was, because of the impact of one or other or both of the bullets to the back of the head, an electrical fault in the electrical system if we can put it that way, the brain has shut down the breathing probably instantaneously? Is that about it, in my own way? - That is about it.
Apart from the fact that this unfortunate girl was dead, did you find a scrap of physical evidence to support that proposition? - What we have is someone who has a head injury caused by a bullet or several bullets and this has been a problem which we don't have to face too often because we don't see too many gunshot injuries but this is a problem which has been recognised in areas where do deal with a lot, that the damage to the brain, that is the local damage, is insufficient to explain why a person dies.
I understand that. Now, my question...was in your examination, your neuropathological examination of the brain, did you find a single clinical sign to support that theory and if so, what? - There are no findings."
[9]Dr. Cassidy then agreed that she did not classify herself as a neuropathologist and that that was a very specialised field. She was then asked:
"...could you have a situation where, let's say, you are right in one part, namely that an impact may cause some kind of electrical fault in that the electrics of the brain and that the brain reacts to that electrical fault and begins as the brain sometimes does to try to cope with it, what you thereupon gain is a chain and eventually the electrics in the brain are thrown into a crazy shambles and that the brain is simply incapable of coping with it and it begins to shut down by stages. Now, that is a situation which is recognised in neuropathology, isn't it? - Yes, going back to your own argument it cannot be proved because there is nothing to find.
And it can be proved no more and no less than the theory that you have advanced but if what we have here in fact was a situation where, yes, there was an electrical fault, an electrical misfiring, which then led to a serious electrical misfiring and then the electrics of the brain simply, putting it in my own way crudely, overloading and beginning to blow a fuse, how long may it have taken for her breathing to stop? - Well, again it would be in the situation you are talking about as the one that I had proposed as the other theory and certainly what would happen is there is a major assault to the major centres and the process of slowing down will take, may take, seconds to minutes.
May take seconds to minutes. Again, without trying to get over-embroiled in the technicalities of it, are you really in a position to say that the overloading theory and blowing the fuse theory, as I have put it to you, is not possible? - Well, I'm afraid I have to go back to the authors that you don't like me referring to but in their vast experience, particularly, in Dr. Mayo's, he had said that in the overloading theory it came about because they had actually seen small contusional injuries around the base of the brain, around that particular area and that was why they proposed this theory. In Miss Cannon's case there were no such small injuries...
In other words, it just comes down to this, doesn't it, that it may be...that what happened to this girl is based on your interpretation of the seven and eight year old papers, whether those views have changed, but it also may be that from the point in time of impact to her head it in fact took seconds to minutes for the brain effectively to shut down and therefore it may have taken seconds to minutes for the breathing in particular to stop? - You are correct. I can't rule it out completely."
[10]Later in cross-examination, Dr. Cassidy was asked about the bullet wounds and in particular referred to the hair of the deceased which was matted and had had to be washed for the purposes of examination. She confirmed that a sample of the hair was cut off and preserved, but she was unaware if it was ever checked for gunshot residue. She also agreed that the presence of hair could mask or inhibit spraying from the source of a wound. In re-examination, Dr. Cassidy was asked about the small spots on the jacket and jeans as follows:
"...When I asked you previously about a hypothetical situation, if there be evidence in this case at a later stage of small spots, very, very small spots on the jacket and jeans, would blood spurting out be different from that or not? - Yes, it would cause a much more definite pattern and a larger number of dots...
But generally the smaller the spot, does that have a relationship? - It usually means quite high velocity droplets. They are going at the same speed and the problem is that they don't go very far because they are small."
Subsequently, Dr. Cassidy was asked about the mechanism of death, as follows:
"...Do you have any reason to think that the evidence you have given to the jury as to what your conclusions are about this, as to the mechanism of death, have you any reason to think that what you have said to them about that is wrong? - No, that is my considered view in this case.
BY THE COURT: As I understand it, the difference between the two versions is that in your case you say that these bullet wounds to the head caused instantaneous death whereas the theory that Mr. Findlay was putting to you meant that death might have been in a matter of seconds or minutes? - No, my lord. Instantaneous respiratory arrest. Instantaneous shutdown of the breathing...
RE-EXAMINATION CONTINUED BY THE ADVOCATE DEPUTE: Please correct me if I am wrong but was the difference in the proposition being put forward for your consideration by Mr. Findlay that breathing in that case could continue for seconds and perhaps for minutes? - Yes.
That was the difference about the breathing? - Yes.
Is there any other difference or was that the only difference? - That was the main difference.
Can you just explain again why it is that in your professional opinion in the light of your experience you have come to the view that that theory didn't find favour with you? - Well, as I say, I do base my experience on the vast experience of my learned colleagues in the States and the cases that they had examined showed in the proposition of Mr. Findlay of the gradual shutdown is obviously a proposition they have favoured and in this case they saw specific types of damage to the brain near the brain centres which are vital centres.
So would they be clinical signs which were observed in these cases? - They would be seen as small haemorrhages, small bruises in this area of the brain.
And would you have expected if that theory, proposition, put to you was to be correct, would you have expected to have found clinical signs to support that? - We would be looking for these haemorrhages and we have to look for any other damage to the brain, any damage that was localised to the bullet wounds.
And were such clinical signs absent in this case? - There was no gross evidence of this."
[11]The third source of evidence was from the appellant's own account at interview in which he stated that when he reached 33 Kelburn Terrace he had found the door of the deceased's flat open. He had entered and looked round for her. He had noticed blood and had feared that there had been an intruder. He had taken up a machete and then observed a trail of blood going up the stair. He had found the deceased lying on the first floor landing. At that time she was unconscious but breathing. He had tried to rouse the occupants of the flats on the first and second floors without success. He had then left to phone for an ambulance and for the police. He had thrown away the machete outside the telephone box from which he had phoned. He had tried to phone his brother without success. He had taken a taxi back to his brother's flat. He had then returned with his brother to 33 Kelburn Terrace. At that time the deceased was still breathing and he had cradled her in his arms. It was maintained for the Crown that if the deceased was still breathing when the appellant first found the deceased, then he must have been there at the time of the offence. As appears from the trial judge's charge to the jury, there was evidence from Crown witnesses that the appellant had banged on doors while the victim was lying on the first floor landing, had been cradling her there and then had gone off to a phone box, telephoned for the emergency services and had then stopped a taxi which had taken him to his brother's house a little distance off. There was also evidence, we were advised, that a machete had been found in the vicinity of the telephone box.
[12]The salient features of the Crown evidence which were challenged by the defence, as appears from the trial judge's charge, were derived substantially from the evidence of Dr. Cassidy, the forensic pathologist, and Mr. Burt, the forensic scientist, although also directed to the credibility and reliability of the evidence of the witness, McCulloch, in particular. With regard to the spotting of blood on the appellant's clothing, it appears from the evidence, and is repeated in the trial judge's charge, that the alternative suggestion put on the appellant's behalf as consistent with his defence that he arrived on the scene after the shooting had taken place, was twofold. The first was that the deceased was still alive and breathing when the appellant was close to her. The second was that the spots had come from either the appellant or his brother having had blood on their hands and having waved his arms about, so causing the blood spotting.
[13]Miss Scott submitted that it was clear from the appellant's own account that he denied that he was responsible for the murder but accepted that he had arrived on the scene after it occurred but while the deceased was still breathing. The forensic reports indicated that the blood of the deceased had been identified on his clothing and, in particular, that spots associated with a fine spray of blood had been found on it. It was also important that the post-mortem report itself was not specific as to the mechanism by which death had occurred and, in particular, the speed with which death had occurred. For the proper presentation of the defence, it was necessary to consider two aspects of the evidence which would require to be investigated with a view, first of all, to a full and proper consideration of the Crown evidence and cross-examination of the expert evidence likely to be given for the Crown. The first was whether there was any evidence to suggest that the deceased had remained alive and breathing for a substantial period of time after the gunshot wounds, and in particular the second and third gunshot wounds, such as would explain the appellant's arrival on the scene after the wounds had been inflicted. The most obvious place to start was by precognoscing Dr. Cassidy and, if her evidence was to be on the lines of that given by her in the witness box, to seek independent expert evidence by which to test it. The second was whether there was some mechanism which, other than impact of the bullets on the deceased's body, would explain the spotting of blood on his clothing and, in particular, spotting derived from breathing alone. That there might have been material available if such enquiry had been made was substantiated by a report obtained from Professor Pounder, a forensic pathologist, which made reference to certain findings in the post-mortem report, including the state of the brain and the presence of pulmonary oedema, which could go to support the suggestion that the deceased had continued breathing for an appreciable time after the gunshot wounds and also the suggestion that expiration of breath could explain the spotting of blood on the appellant's clothing. Prior to the trial the defence had been in possession of independent reports provided by a forensic scientist, James Dunlop, and by a firearms expert, Alistair Paton, which contained material suggesting that breathing could account for droplets of blood being on the appellant or his clothing. Furthermore, the report of the firearms expert made reference to the fact that it was unlikely that the two gunshot wounds to the back of the skull were "very unlikely to produce back spatter", that is to say to produce the fine spray which would give rise to the presence of the blood spotting. It was therefore a material point that no powder burns had been observed on the deceased's skin or clothing relative to the gunshot wound to the mouth, since the distance of the gun from the deceased was then an important issue for the likelihood of blood spotting appearing on the clothing of her assailant. This was all the more important since the Crown evidence given by each of Dr. Cassidy and Mr. Burt did not suggest that the gunshot wounds to the head, covered as it was by hair, was likely to give rise to such blood spotting.
[14]Looking at the matter broadly, Miss Scott submitted that the failures were to be seen in two contexts. First of all, in the preparation of the defence there had been no precognition of the pathologists such as to explore the mechanism of death against the defence of alibi. Nor had there been any attempt to review the pathological evidence with an expert with a view to exploring the positive aspects of that evidence which might point to the continuance of the deceased's capacity to breathe for an appreciable period after the gunshot wounds to the head were inflicted. In addition, such review might also have extended to the material to be found at the locus, since Dr. Cassidy had been able to inspect the locus generally. In Professor Pounder's subsequent report mention was made of the formation of blood spots on the door of the second floor flat and the likely explanation that it was caused by the deceased shouting into the letter box for help and not by any gunshot wounds, which were inflicted either in the ground floor flat or while the deceased was on the first floor landing. The existence of saliva on the appellant's jacket, together with the presence of abundant foam in the main airways noted in the post-mortem report, was a significant feature in the context of circumstances in which the deceased might have produced an expirational fine blood spray over the appellant's jacket as explained in Professor Pounder's report. The Crown evidence pointing to the appellant as the assailant crucially depended upon Dr. Cassidy's evidence that following upon the infliction of the two gunshot wounds to her head, the deceased had died instantaneously. This opinion was given upon the basis of observations at post-mortem and by reference to medical literature. The part of the Crown case was set out in the trial judge's charge in a passage where he said:
"Now, Dr. Cassidy's evidence about what happened was that, as soon as she was shot in the head, Sally would have become unconscious and had had a complete loss of reflexes. Now that of course is undoubtedly a matter which is within Dr. Cassidy's expertise, but then Dr. Cassidy went on to try and explain the mechanics of her opinion, and this was heavily criticised by Mr. Findlay, and indeed that evidence was undoubtedly more controversial. You see, her evidence was, and it may have some importance this, you may have to consider this carefully, her evidence was, in her opinion, when the two shots to the head were fired and entered the skull, Sally would not only become immediately unconscious, but would almost immediately, within seconds, stop breathing, because the electric shock from the impact of these bullets would have affected the vital centres, including the centre of breathing. Now, the criticism of Dr. Cassidy was that of course she had never had any experience of this form of death being caused and indeed her opinion was based on articles by two American gentlemen as I understand it, which were written some eight or nine years ago, and she had no knowledge whether these gentlemen had ever changed their minds. Now, these were perfectly justifiable criticisms, ladies and gentlemen, but that does not mean that Dr. Cassidy was not entitled to express an opinion. This is quite an acceptable situation, that somebody who does not have direct experience of something in their own field, may express an opinion addressed on work by other people, but what is justifiable is the criticism that she herself had no knowledge, and Mr. Findlay was perfectly entitled to criticise her on the basis which he did, in order to show that her opinion could not necessarily be relied on, but don't be led into thinking that Dr. Cassidy was not entitled to express an opinion. She was. And indeed in the end of the day Mr. Findlay's only suggestion to her was that there was another possible theory, namely that, instead of the shock affecting the vital centres immediately, that the shock might, to put it in layman's terms, rattle round the skull for a while, then gradually affect the vital centres until the final stage, but even on that basis, ladies and gentlemen, it seemed to be accepted, at least there was no evidence to the contrary, that Sally, even on that theory, would have stopped breathing within five minutes, and that is quite an important matter you may think, when you consider this. Dr. Cassidy was of the opinion that Sally Cannon would have stopped breathing in seconds, and just because Counsel put something to a witness which they don't agree with, that has not to be taken as establishing that matter. Even on Mr. Findlay's theory she would have stopped breathing within five minutes. Now, that leads up to this point, that if you accept what Mr. Hemphill said to the police in his interview...Mr. Hemphill must have been with Sally at the time of the shooting or very soon after, because he said when he first saw Sally she was breathing...Of course, you must take this on the basis that what John Hemphill says that he came to find her, and this was the situation that he found when he came to the house, although he denies he had anything to do with the shooting. He was asked 'Was she ever awake when you saw her?' and he replied 'She was breathing'. Mr Malcolm said 'Was she awake?' and Mr. Hemphill replied 'She was breathing. She wasn't awake, no, she was breathing, but she was breathing because there was all this stuff coming oot of her and air bubbles, so it was I had to run over to the phone box to phone the ambulance or the polis. I phoned direct enquiries, a reverse charge call to that Chris. He never answered the phone.' So, if you accept Dr. Cassidy's evidence, then John Hemphill was there when Sally was breathing. If you accept Dr. Cassidy's evidence that her breathing must have stopped within seconds then he must have been there at the time of the offence. Even if it took five minutes for her to stop breathing, he must have been there very near the time of the offence. So, that is another point in the evidence, circumstantial evidence you might call it, based on opinion evidence of Dr. Cassidy, but which, if you are satisfied about it, would help you to consider whether an inference can be drawn to say that it was at the time of the offence that Mr. Hemphill was present."
In a later passage the trial judge referred to Mr. Burt's evidence concerning the 10 tiny spots of blood on the appellant's jacket. He said this:
"Mr. Burt's evidence was that this blood was sprayed out as a result of impact on the skin with a high degree of force, and his evidence was, very properly, that he couldn't say if it was caused by a gunshot, but he did say that it was likely that it was. Now, the alternative suggestion for finding blood, on his jacket in particular, was that Sally Cannon may have coughed after she had been shot. Well, the first thing I think I am bound to say is that, according to my notes, there is no evidence anywhere that Sally coughed after she had been shot, and secondly, there is the evidence of Dr. Cassidy, if you believe it, that she could not have coughed, because her reflexes were immediately brought to a halt as soon as she became unconscious, and she became unconscious immediately."
However, at post mortem examination, while the deceased's brain had been removed, it had only been examined externally. It had been retained for neuropathological examination but no material had been sought as to the extent of any examination or the nature of any findings determined by such examination. This matter was important in that Professor Pounder had since drawn attention to the finding in the post-mortem report itself to the effect that the brain was swollen, which suggested that there had been a period of survival after infliction of injury to the brain. Again, the finding of abundant froth in the major airways was important, in Professor Pounder's view, because it required both breathing and an accumulation of fluid in the lungs (pulmonary oedema) for its production. Post-mortem examination had revealed oedema and, according to Professor Pounder, only the gunshot wounds to the back of the deceased's head could account for the development of pulmonary oedema. But even in the absence of any such independent expert review, it would be important to determine in advance of the trial what evidence could be given by witnesses present at or about the time of the incident who saw the deceased, as to her state and in particular her state of breathing. In these circumstances, there had also been failures at the trial itself properly to explore these last matters. It appeared that two witnesses at the trial, namely Wright and Jackson, both of whom gave evidence were not asked about what they observed of breathing on the part of the deceased at a time when the appellant was present. Reference was also made to an affidavits given by Jackson and a further Crown witness, Sharon Bryce, stating that they had seen white foam coming from the deceased's nose. Furthermore, the defence had obtained reports from two experts, one from a forensic scientist, Mr. Dunlop, who was asked to comment on the report, Crown production 30, and the second from a firearms expert, Mr. Paton. The latter was instructed by letter dated 11 August 1995 in which he was asked in particular to consider the significance of a pattern of bloodstaining on the appellant's clothing, it being understood that "the significance of this evidence lies in the areas of spattering which the Crown contend would only occur if someone was present and within a short distance of the deceased at the time the injuries were sustained." Both had been cited as witnesses for the defence. Mr. Dunlop had noted in his report that the victim had sustained a gunshot injury to her mouth and that it was "quite conceivable that an attempt by her to speak or cough after injury would result in her projecting droplets of blood onto the clothing of anyone in close proximity to her". Mr. Paton had noted that in relation to the absence of soot or tattooing/powder burning around the gunshot wound to the victim's face, it could reasonably be taken that the range of the shot "must have been in excess of 12-15 inches. Anything less than this would have caused really identifiable markings around the wound". He also concluded that "most, if not all blood spattering, would have occurred from the injury to the deceased's mouth" and even then such spattering would be "minimal" and he would not expect it to travel any distance. He ended his report by saying that, while not being medically qualified, it was fairly well documented that even catastrophic head injuries did not necessarily produce instantaneous death. He continued:
"If the deceased was in fact still alive when she was cradled by Hemphill any movement (by her or him) together with her breathing might spray the 'frothy blood stained fluid' found in her mouth by the Casualty Surgeon and mentioned in his report. Such a possibility might account for the blood droplets being on Hemphill".
[15]Miss Scott accepted that in presenting the fourth and main ground of appeal she required to establish, first of all, that the failures in preparation and at the trial were important. In her submission, there was such failure even in the absence of any precognition of the pathologists. There was a body of evidence which could have been obtained and led from the lay witnesses to establish that Sally Cannon was still alive and breathing, though unconscious, at the time when the appellant said that he first came to the locus. Furthermore, the evidence relating to the distance of the muzzle of the gun when fired and the absence of any residue at the site of any wound and the fact that only one of the three gunshot wounds was likely to have produced any spray of blood, allied to the appellant's evidence that Sally Cannon coughed while he was present, would have provided material for cross-examination of the expert evidence led for the Crown and in particular of Dr. Cassidy and Mr. Burt of a more specific alternative explanation than was in fact explored with these witnesses. Such an explanation excluded the likelihood that the bloodspotting of the appellant's clothing was consistent with his having fired the first shot which struck the deceased's face because the distance that the muzzle must have been from the victim's face was such that it was unlikely that any spray from that shot would have reached or fallen on the appellant's clothing. This conclusion could have been further supported by reference to the finding of saliva on the clothing which was consistent with its having been mixed with blood expelled from the victim's mouth while she was still alive and breathing.
[16]Miss Scott went on to criticise the failure to find a defence expert to review the evidence with regard to the time of death which with the cause of the blood spotting on the appellant's clothing formed the crucial elements both in the Crown case and also in the defence case. In this regard, the appellant's agents at the time had been informed of the criticism as focused in the new grounds of appeal by letter in October 1999 but no reply had been forthcoming. She referred to the report from Professor Pounder dated 15 February 2000 which had been prepared upon perusal, amongst other things, of the evidence of Dr. Cassidy and Mr. Burt as well with a sight of the affidavits of Jackson and Sharon Bryce. In his report and by reference to the evidence given on the matter, Professor Pounder stated that an opinion that death was instantaneous was speculative and that the post-mortem findings noted above were open to the interpretation that death was not instantaneous and that breathing continued for some time. He also expressed the opinion that it was not possible for the bloodspotting of the appellant's jacket to have originated from the two gunshot wounds to the back of the head, the entry sites being covered with hair. He classified the gunshot to the deceased's mouth as a "distant shot", that is one generally delivered more than two or three feet away. He also expressed the opinion that for bloodspotting to the appellant's jacket and jeans to have originated from the gunshot wound to the mouth, the appellant would need to have been within about three feet of the victim at the time the gunshot was fired. In his opinion, this fact was difficult to reconcile with the fact that the shot which caused the wound was a distant shot. Miss Scott also referred to a statement that had been obtained from Dr. Cassidy in August 2000 in which she had been asked to consider a number of matters arising from Professor Pounder's report. In it she agreed that Professor Pounder had identified a potential difficulty in reconciling these two factors, namely, the absence of propellant tattooing (and the conclusion that the firer must have been standing at some distance from the deceased) and the fact that the blood could not have sprayed any significant distance, with her own proposition that the appellant was the firer of the gun. She further comments that this was not her area of expertise though she was asked to comment upon it in evidence. She goes on to accept that if Professor Pounder was correct, any blood spray on the appellant would not have been the direct result of the gunshot wound to the mouth.
[17]Miss Scott then turned to consider the basic principles which should be applied in the present case under reference to Anderson v. HMA 1996 JC 29: Mackintosh v. HMA 1997 SCCR 389: Keating v. HMA 1999 SCCR 359: Wright v. HMA 2000 SCCR 638 and Garrow v. HMA 2000 SCCR 772. She submitted that the conduct of the case by counsel and solicitor had deprived the appellant of his right to a fair trial in that the conduct was such that the appellant's defence that he had not shot the victim had not been presented to the court in a proper way. In consequence of that conduct not only had independent evidence not been heard at the original hearing, including evidence additional to that given by witnesses at the trial, but also a line of defence had been deployed without any evidence adduced in its support and a further line of defence had not been properly deployed. The line of defence which had been deployed without any evidence in its support was that related to the timing of death. The trial judge had remarked upon the absence of evidence to support it. That factor arose because of the failure to precognosce the Crown pathologists to discover what was the basis of any opinion that they might entertain as to the timing of death, this not appearing positively on the face of the post-mortem report. The appellant's agents had been aware from early in May 1995 that the Crown attached importance to the matter of bloodspotting. The evidence as to the victim apparently breathing while the appellant was cradling her was again important in this context. Yet material which might have been taken in evidence from those who gave evidence at the trial, including the appellant's brother, and who observed the appellant cradling the victim, were not asked about the matter. Nor did the defence seek to lead evidence from either of the expert witnesses who might have cast doubt upon the Crown assertion that the bloodspotting came from the gunshot wounds. All told, important forensic and pathological evidence material to the crucial issue for the defence, namely, the fact that the appellant was not present at a time when the shots were fired at the victim, one which underlay both the special defences which had been intimated on his behalf, had not been investigated or lead at the trial. Thus, there had been a miscarriage of justice of a kind to which section 106(3) of the Criminal Procedure (Scotland) Act 1995 applies. So far as could be discovered from the background material, the defence agents appeared to have concentrated more upon investigating the defence of incrimination than upon an analysis of the defence of alibi relative to the pathological and forensic material available to the Crown. As a consequence defence counsel had cross-examined upon the basis of hypotheses, both as to the time of death and as to the manner in which bloodspots came to land upon the appellant's clothing, without any evidential material to support the hypotheses.
[18]In reply, the advocate depute properly accepted that the evidence of the witness McCulloch, the forensic evidence in relation to bloodspotting and the evidence of Dr. Cassidy were not unimportant chapters of evidence. But there had been other evidential material to support the placing of the appellant at the locus at the time of the shooting. This derived from what the advocate depute termed "false alibi" in relation to the difference between the times of the sightings spoken to by the Crown witnesses, McCulloch and Bonnar, and the appellant's explanation at interview that until the end of the film, "Alien Nation", he had been in his brother's house. At interview he had also described following a blood trail up the stair to the first floor landing which did not accord with evidence as to the limited nature of lighting within the close given by both a police officer and Mr. Burt, each of whom spoke to use of a torch within the stairway. The advocate depute accepted that, in particular, the case of Garrow presented difficulties to the Crown in the appeal. However, the decisions not to call the witnesses, Dunlop and Paton, should be regarded as tactical decisions in the context of the trial. Mr. Paton had plainly disqualified himself by recognising his lack of qualification to speak to medical matters. There had been no cross-examination related to the issue of coughing put to any of the Crown witnesses. While these two witnesses might be said to point to investigation of the material to which Professor Pounder referred in his report as providing an alternative explanation, it was to be observed that the evidence of Mr. Paton about the minimum distance between the muzzle of the gun and the point of impact of the bullet before there would be no evidence of residue around the wound, namely, 15 to 18 inches, was less favourable than the distance of two feet adopted by Dr. Cassidy and Mr. Burt. It could not therefore be said that there was no reasonable reason for not putting him in the witness box. As regards the lay evidence at the trial, neither Jackson nor Sharon Bryce were at any stage asked about the victim breathing. They had been called simply to speak to there having been no shouting in the stairway. It had to be said that on precognition they adopted a position somewhat contrary to that in their affidavits. It was the case that the appellant's brother had spoken to the victim's state when he arrived, namely, that she was breathing but her body was not moving. The line of cross-examination by counsel of Dr. Cassidy established a time scale for the occurrence of death, namely a period of 5 minutes, sufficient to provide a window of time within which the assailant could have disappeared. The matter which remained, namely, the presence of bloodspotting on the appellant's clothing was explored in evidence in the sense of cross-examination directed to the expiration of blood by the victim. The evidence which was now said to be significant derived from the report of Professor Pounder. But his use of the term "expiration of blood" was said to include coughing when blood was in the mouth, sneezing when blood was in the nose, speaking or shouting when blood was in the mouth and breathing out heavily when blood was in the nose or mouth. There was no evidence that the victim, while alive and following the shooting incident, had done any of these things. In any event, notwithstanding this material from Professor Pounder, there was still other evidence contradictory of the explanation given by the appellant at interview which pointed to him as the assailant, as, for instance, the assertion that he had been able to follow a blood trail up the stairway. Even with the evidence of Professor Pounder in the form given in his report, the body of evidence before the jury would not have been materially different. The present case was different from the circumstances as they were before the Court in Garrow.
[19]We have set out the evidence led at the trial from the expert witnesses for the Crown because, in our opinion, it demonstrates that there was a substantial failure on the part of those instructed for the defence of the appellant properly to consider and investigate the real basis of a material part of the case for the Crown. For not only was the forensic evidence of the finding of bloodspotting on the appellant's clothing an essential plank in that case but also its significance, in pointing to the appellant as the assailant, rested upon it being established beyond reasonable doubt that that bloodspotting was consistent with a spray of blood coming from a gunshot wound before the victim died and could not otherwise be explained. We accept that certain decisions in relation to the manner in which at a trial an accused's advocate approaches the matter of cross-examination or determines whether or not to lead evidence of which he has knowledge from the prior preparation for the trial are matters on which the advocate is entitled to, and must, exercise his own professional judgment (see Anderson v. HMA). The problem in the present case is that a substantial area of the Crown's case, namely that derived from the post-mortem report and from the evidence of Dr. Cassidy, was never made the subject of any investigation for the defence either by way of precognition of the Crown pathologists or by way of a report from an independent pathologist. In the present case, the timing of death, or more properly the period following the shooting during which the victim would have been able to survive and, in particular, to breathe, was crucial to both the presentation of the Crown case and to that of the defence. The absence of any such investigation left the appellant's counsel in the position that he could only cross-examine by way of suggesting hypotheses to the Crown's expert witnesses, and, in particular, to Dr. Cassidy which, if rejected, could then only be consigned to the realm of speculation and could not be founded in evidence to be led for the defence. The weakness of this approach was demonstrated by the proper directions of the trial judge commenting on the lack of evidence to the contrary of what had been said by Dr. Cassidy. In Garrow, where the appellant was charged with rape, the defence had in fact obtained a report from, and cited for the defence, a medical expert. The accused had told his solicitors that he had penetrated the complainer with two fingers after the defence report had been made available. In that report the medical expert had agreed with the Crown medical expert's report that the complainer had a superficial injury which was consistent with an attempt at penile penetration. At the trial the complainer rejected the suggestion made to her in cross-examination that she and the appellant had touched each other's private parts. The Crown expert gave evidence along the lines of her report and was not cross-examined as to the possibility that the injury might have been consistent with digital penetration. After consultation with his client, the solicitor advocate received instructions from his client not to call the defence expert, who at no time had been advised of the appellant's explanation about digital penetration. Subsequent to the trial, the defence expert provided a report in which he stated that a finger or fingers could have produced the lesion in question if applied to the right spot, that the position of the tear was more in keeping with an erect penis in a phase prior to penetration of the vagina, but that a finger could damage the part of the vulva concerned. The appeal was allowed and the conviction was quashed on the ground that in the circumstances the failure, before the trial, to ascertain the defence expert's opinion on this material point was fundamental and affected the conduct of the appellant's defence to such an extent that he did not have the fair trial to which he was entitled and there had been a miscarriage of justice. In the course of the judgment of the court, at p. 777, the Lord Justice General pointed out that if the agents for the appellant had taken the obvious step of asking for a supplementary report from the defence expert, the solicitor advocate would have had that additional information available to him when deciding whether the medical expert should be called to give evidence for the defence. Further, if that information had been obtained promptly, it would then have been open to precognosce the Crown expert on the point. The Lord Justice General then said this:
"At the very least, the solicitor advocate would have ammunition to cross-examine [the Crown expert] on it. Even if she had not conceded that the complainer's injury could have been caused in this way, Professor Busuttil's evidence would have given the jury another medical view to consider. Of course, he would have been likely to say that it was, statistically at least, more likely that the injury had been caused by an erect penis that by fingers. But the important point is that there would have been expert medical evidence from an authoritative source which showed that the appellant's account was at least consistent with the complainer's injury."
The court there held that the system had broken down to such an extent that the appellant's defence was not properly presented to the jury. If the appropriate steps had been taken in relation to ascertaining the defence expert's opinion about the appellant's revised account of what happened, the defence would have been significantly reinforced by evidence to which the jury would have been likely to attach weight. While the court could not say that the jury would necessarily have reached a different verdict, the failure to ascertain the defence expert's opinion on the relevant point was fundamental and affected the conduct of the appellant's defence to such an extent that he did not have fair trial to which he was entitled. We find the reasoning of the court in Garrow to be very much to the point in the present case.
[20]The advocate depute, while pointing out that in Garrow the appellant had given evidence at the trial, did not suggest, quite properly, that this fact could form a distinction from the present case. The appellant was fully entitled to rest upon the evidence of what he had said to the police at interview as being his position at the trial. At interview he had explained how he came to the locus and how he had found the victim. He made specific mention of her having been cradled by him and also of her having coughed while he was doing so. In the context of the preparation for the trial, we are of opinion that it was fundamental to a proper presentation of the defence case that the mechanism of death should have been the subject of inquiry by the agents and, not least, that this should have begun with precognoscing of the Crown expert witnesses, both forensic and pathologists, at an early stage to determine whether they could support the defence case. This case all along rested on the proposition that the victim remained alive and breathing after the shooting for a sufficient period of time to allow for the departure of her assailant before the arrival of the appellant and at the same time to provide a plausible explanation for the finding on the appellant's clothing of bloodspotting, namely that it was caused not at the time of the shooting incident but at the time when he was cradling her body on the first floor landing. An adequate investigation would also have enabled the defence to consider the need to counter the thrust of the Crown expert evidence, so far as that was known from prior precognition, by instructing expert medical evidence on behalf of the defence. Obviously, it cannot now be assumed that the medical expert who would have been approached in such a situation would have been Professor Pounder. The point, however, is that a responsible medical expert has now been provided with, amongst other things, the material which was before defence counsel and agents prior to the trial, and in particular the post-mortem report and the forensic reports. He has indicated that, within that post mortem report and elsewhere, there is matter which is inconsistent with, if not contradictory of, the case upon which the Crown proceeded to trial. This includes material which might have been deduced from a neuropathological examination of the brain. Accordingly, it is reasonable to assume that, if it had been sought timeously, similar evidence could well have been available to the defence and could have been provided in the form of expert medical evidence from an authoritative source. This would then have been available to be led before the jury and could have served to show that the appellant's account was at least consistent with inferences to be drawn from the real evidence and thus would serve to draw the sting of the forensic and pathological evidence given by the Crown expert witnesses. The presentation of the defence case would not then have been left on the basis of hypotheses directed to the mechanism of death presented by the appellant's counsel in cross-examination of the Crown experts, which had no foundation in any expert medical evidence available to the defence. The failure to obtain such medical evidence was not remedied by the instruction of reports from Mr. Dunlop and Mr. Paton. Indeed the latter's report, with its reference to the issue of frothy blood stained fluid, tends to underline the absence of expert medical opinion and the fundamental flaw in the preparation of the defence case which could not be offset by evidence led from these two expert witnesses. We cannot now guess what would have been the consequence of leading such expert medical evidence before the jury, even in the form in which it might have taken if given by Professor Pounder along the lines of his report. Nor can we say that, if led for the defence, it would necessarily have meant that the jury would have reached a different verdict. But that is beside the point. The appellant was entitled to have his defence properly investigated with a view to its proper presentation. Notwithstanding that no evidence was led to support the incrimination (and this was agreed to by him during the trial), his defence at the trial rested on alibi and remained predicated on the premise that he did not shoot the deceased. In our opinion, the failure of investigation and preparation of the defence case was so fundamental in the circumstances of this case that it affected the conduct of the appellant's defence to such an extent that he did not have the fair trial to which he was entitled. It is thus unnecessary to consider the point raised in the third ground of appeal with respect to new or further and additional evidence or indeed the third and fourth points of criticism of the appellant's representatives raised in the fourth ground of appeal.
[21]In the circumstances, we shall allow the appeal and quash the conviction. At the same time we shall grant authority to the Crown to bring a new prosecution.