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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Marnoch

Lady Cosgrove

[2005HCJAC38]

Appeal No: XC426/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

in the Reference by

THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the cause

HUGH GUTHRIE McCORMACK

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Jackson QC, Ram; BJ Lanigan & Co, Glasgow

Respondent: Mackay, AD; Crown Agent

31 March 2005

Introduction

[1]On 16 January 1992, at the High Court at Kilmarnock, the appellant was convicted by a unanimous verdict of a charge that on 19 September 1991 at 22C Dalry Road, Ardrossan, he murdered his wife Angela Janet McIntyre or McCormack. The Scottish Criminal Cases Review Commission has referred the case on the basis that a miscarriage of justice may have occurred. The appellant has lodged grounds of appeal that in substance reflect the Commission's reasons for the reference. The only issue is whether the appellant should have been convicted of murder or culpable homicide.

[2]It is a tragic case. The appellant and the deceased were a respectable young couple. They were married in 1988 and lived together in Ardrossan. In about August 1991 they separated because of financial problems. They were then in their mid-twenties. Their daughter Victoria was 16 months old. The deceased moved to a flat nearby, taking Victoria with her. She remained on good terms with the appellant and was in regular contact with him. They had discussions about the appellant's access to Victoria and about the possibility of a reconciliation. On the night before the incident they had been together in the flat and had been on amicable terms.

[3]On the night of the incident the appellant visited the deceased. His visit ended with an argument which led to a scuffle in which he strangled her with a crepe bandage. The appellant then went to the local police station and told the police that he had killed the deceased. He made a full statement in which he repeatedly said that he could not recall the whereabouts of the bandage. The police later found it in his trouser pocket. When he was asked what the bandage was for, he did not answer. When asked again, he said "I'd better not say." The pathologists concluded that a considerable degree of pressure had been applied to the deceased's neck, possibly for a prolonged period of time. Most significantly, for the purposes of the present case, they found that the bandage had been wound twice round the neck of the deceased.

[4]At the trial the appellant described his quarrel with the deceased but said that he could not recall what happened immediately before her death. His counsel asked the jury to convict him of culpable homicide on the basis that he was provoked by the deceased's physical violence towards him.

[5]The appellant appealed on a number of grounds, one of which was that he had additional evidence tending to exculpate him of murder which was not available at the time of the trial and which could not reasonably have been made available at the trial. This evidence was said to have become available as a result of his having recovered his memory of the incident which he had lost at the time of the trial. In an affidavit he said that he now remembered that during the argument with the deceased she had claimed that he was not the father of their child; that she had repeated this allegation several times; that this had caused his head to go into a spin and that he began to think of occasions when he had left her alone and to wonder whether she could have been with another man. He then saw a bandage lying in a trainer shoe under the couch. He seized the bandage and tried to push it into the deceased's mouth to shut her up. They struggled and ended up lying on the floor face-to-face. He put the bandage round her throat and pulled. He did not wish to hear any more that he was not the child's father. He closed his eyes while he pulled on the bandage, and when he opened them the deceased was dead. His recollection of this evidence was triggered by the raising of proceedings by the deceased's parents for custody of Victoria. There was expert psychiatric evidence that the appellant had genuinely suffered from amnesia at the time of the trial.

[6]The appeal court refused the appeal. In relation to the fresh evidence ground, it decided that the evidence tendered could not be considered to be additional evidence. It was changed evidence that gave only a more complete account of the evidence that the appellant had given at the trial. It was not additional evidence within the purview of section 228 of the Criminal Procedure (Scotland) Act 1975, as amended by the Criminal Justice (Scotland) Act 1980, which was then in force.

[7]The court also considered the proposed additional evidence on its merits and expressed the view that the circumstances alleged by the appellant did not in any event constitute provocation in law. The deceased's alleged remarks were not unequivocal admissions of adultery. They were insults uttered in the course of a quarrel. They were not the cause of the appellant's having strangled the deceased. The report of the decision sets out the evidence that had been given at the trial and we need not repeat it (cf McCormack v HM Adv, 1993 SCCR 581, at p 587 C-F).

The referral

[8]The Commission is of the view that the changes in the criteria in a fresh evidence appeal that were made by section 17 of the Crime and Punishment (Scotland) Act 1997, which amended section 106 of the Criminal Procedure (Scotland) Act 1995, enable the appeal court to take a more flexible approach to the proposed new evidence. Section 106, as amended, provides that where the proposed fresh evidence comes from a person who gave evidence at the original proceedings and is different from, or additional to, that evidence, it may not found an appeal unless there is a reasonable explanation as to why it was not given by that person at those proceedings, which explanation is itself supported by independent evidence (s 106(3C)). The Commission believes that Parliament's intention is clear and that the new criteria were framed so as to allow the appeal court in a case of this kind to hear evidence of recovered memory, even where the person concerned has given evidence previously; and that in this respect the current legislation relaxes the rigorous approach that was exemplified in the decision of the appeal court in this case.

The Commission is of the view that the qualifying conditions in the now amended section 106 are made out in this case (cf Campbell v HM Adv, 1998 JC 130); and that, in the light of the opinion of the court in Drury v HM Adv (2001 SCCR 583, at para [25]), the new evidence may disclose a relevant case of provocation that would have entitled the jury to convict the appellant of culpable homicide.

The Crown's concessions

[9]The Crown concedes that the deceased genuinely suffered a loss of memory as a result of the incident and that he recovered that memory after the trial. It also concedes that the preconditions of section 106 are made out. But it contends that the appellant's recovered recollections are neither credible nor reliable, and that in any event his new evidence, if accepted, could not justify a conviction of culpable homicide on the basis of provocation.

The approach of the court

[10]The approach to be taken in the application of the amended section 106 has been set out in several decisions of this court (Kidd v HM Adv, 2000 JC 509, at paras [23]-[24]; Campbell v HM Adv, supra; Church v HM Adv, 1996 SCCR 29; Cameron v HM Adv, 1991 JC 251). In view of the Crown's concessions, the sole issue is whether we can conclude that the evidence now available is of such significance that a verdict returned in ignorance of it must be regarded as a miscarriage of justice (Kidd v HM Adv, supra, at para [23]). Significance, for this purpose, includes the relevance, materiality and importance of the evidence (ibid). The evidence must be capable of being regarded by a reasonable jury as being both credible and reliable (Kidd v HM Adv, supra, at para [24]). The court's concern is to make a judgment as to the relevance, materiality and importance of the evidence to the essential issue in the trial. In making that judgment, the court has to recognise the inherent limitations in its determining what the jury would have made of the additional evidence when it is considered in the context of the evidence at the trial (Kidd v HM Adv, supra, at para [23]). The appellant has to persuade the court that "the witnesses who have given the additional; evidence were credible and that the evidence given was plainly reliable or was at least capable of being so regarded by a reasonable jury" (Cameron v HM Adv, supra, Lord Justice General Emslie at p 262).

The new evidence

[11]The appellant has given evidence on his own behalf. The Crown has led three witnesses. The question at this stage is whether we are satisfied, on the evidence that we have heard, that the test set out in Kidd v HM Adv (supra, at para [23]) has been made out.

The appellant

[12]The appellant said that the incident was set off when, as he was about to leave the house, he went to Victoria's room and turned her onto her back. The deceased accused him of trying to waken Victoria. As he left, she started to call him names. They then shouted and swore at one another. She slapped him twice. He held her by the wrists and tried to calm her down. She continued to struggle with him and to try to slap him. The struggle continued into her bedroom. They fell onto the bed and rolled off it. The appellant banged his head on the floor. The deceased got on top of him and tried to slap him. She got a hand free, seized him by the hair and attempted to bite him. He struck her on the face. She laughed at him and said that he was useless and that he could not even father his own child. He thought that she was trying to annoy him, but it flashed through his mind that it might be true. He did not know whether to believe her. His mind could not work anything out. His mind was elsewhere and he could not think straight. She repeated the remark and continued to laugh at him. He just wanted to shut her up since she was laughing at him. When he tried to put his hand over her mouth, she said that he was useless and could not do even that. A pair of her trainers were lying on the floor. The crepe bandage was hanging loosely beside them. The appellant attempted to push it into her mouth to stop her from saying anything more.

[13]At this point the appellant's account became uncertain. He remembered that he and the deceased rolled onto their sides and that the bandage went underneath her neck. In circumstances that he did not clearly describe, he took hold of the bandage. He did not wrap it round her neck. It had become wound round her neck and crossed in the middle while they were rolling on the floor. He pulled the two ends and caused the fatal injury. In cross-examination, he said that he became angry and slapped the deceased because she tried to bite him.

Edward McIntyre

[14]Mr McIntyre was the father of the deceased. Some time during the week before her death, he injured his hand while he was helping to decorate her flat. He could find no first aid materials in the flat. So far as he knew, there were no crepe bandages there. Mr McIntyre was not cross-examined. We found him to be a credible and reliable witness.

Dr Edwin Nairn

[15]Dr Nairn, a consultant pathologist at Crosshouse Hospital, Kilmarnock, was one of the post mortem pathologists. At the post mortem they found distinct marks on the neck of the deceased which showed that the ligature had been wound twice round the neck with the ends crossed over. Later, they were provided with the bandage itself. They tied it in this way round the neck of the deceased. It exactly matched the marks on the neck. Dr Nairn's evidence was not challenged

Ian Hamilton

[16]Mr Hamilton, a forensic scientist with Strathclyde Police, spoke to the presence of five knots on the bandage and to his finding that the blood of the deceased came onto the bandage after the knots were made. Since it is accepted by both sides that the bandage must have been knotted before the incident took place and since we do not regard the knots as having any significance in relation to the cause of death, we need not go into Mr Hamilton's evidence in further detail

Conclusions

[17]This is not a reference based on the emergence of new evidence since the date of the appeal. The Commission invites us to consider the evidence that was tendered to the appeal court on a basis that was not open to the appeal court as the law then stood. Counsel for the appellant has argued the case on the same basis.

[18]Despite the appellant's loss of recall at the time of the trial, most of his new evidence was in substance given by him at the trial. The new material in his evidence relates to two main points, namely the greater extent of the deceased's violence during the incident and her statements as to the paternity of the child and as to his uselessness.

[19]The appellant has failed in limine to satisfy us that his new account was capable of being regarded by a reasonable jury as credible and plainly reliable. We were not impressed by his evidence. In view of the evidence of Dr Nairn we cannot see how, on the appellant's explanation, the bandage came to be wound round the deceased's neck. He was clear in suggesting that the bandage came to be under the neck of the deceased by chance in the course of the scuffle and that it came to be wound round her neck in consequence of their having rolled over on the floor. That explanation is ruled out, in our opinion, by the evidence of Dr Nairn which suggests to us that the bandage must have been put round the neck twice by a deliberate act.

[20]But in any event, we do not consider that the new evidence, even if capable of being regarded as credible and reliable, is of such significance as to meet the test that we have to apply. We do not consider that the violence on the part of the deceased that has now been spoken to by the appellant is greater to any significant degree than that to which the appellant spoke at the trial. On the contrary, his evidence at the trial was that the deceased sank her teeth into his forehead, whereas he has told us that she tried to do so but did not actually bite him. His new evidence discloses only that, in addition to her physical violence, the deceased taunted him in the way that we have described. Counsel for the appellant conceded that the deceased's words were not an unequivocal admission of adultery of the kind that may now constitute provocation (Rutherford v HM Adv, 1998 JC 34); but he submitted that the violence now spoken to together with the taunts constituted a relevant case of provocation. We do not accept this submission. The appellant's evidence makes it plain that the deceased's statement that he might not be the father of the child was not necessarily accepted by him and was not the cause of the strangulation. On the contrary, his main concerns were to restrain the deceased and, later, by putting the bandage into her mouth, to stop her from saying anything more.

[21]We conclude that the appellant has failed to satisfy us that the evidence that we have heard is of such significance as to entitle us to hold that a verdict returned in ignorance of it must constitute a miscarriage of justice. We therefore decline to disturb the conviction and we refuse the appeal.