Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Macfadyen Lord Kingarth Lord Wheatley	[2008] HCJAC19 Appeal No: XC261/04   OPINION OF THE COURT   delivered by LORD WHEATLEY   in   APPEAL   by   MARK JAMES LINDSAY   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

 

Act: Shaffer, QC, Heaney; Caird & Vaughan, Solicitors, Dundee

Alt: Mitchell, AD; Crown Agent

 

25 April 2008

 

[1] The appellant was found guilty of a charge of murder as libelled by the unanimous verdict of the jury at Aberdeen High Court on 23 March 2004, following a six day trial. At the end of the Crown case the murder charge was the only one left on the indictment.

[2] The evidence which the jury must have accepted did not as such appear to be in any way substantially challenged at the appeal and can be summarised from the trial judge's report. On the evening of 31 October 2003 the deceased, who was very drunk, had gone to lie down in the only bedroom of the house at 16 Arnage Terrace, Aberdeen. The householder, Mrs Lindsay, and her grandson, Mark McEwan, were in the livingroom. Although not married to Mark McEwan's mother, who died early in 2003, the deceased had lived with her for many years and Mark McEwan regarded the deceased as his step-father. They lived together.

[3] The appellant, who was also a grandson of Mrs Lindsay, had been in the house earlier but had left. He returned, apparently under the influence of alcohol, sometime after midnight. Shortly afterwards, he went into the kitchen, and then armed with a knife which he had found there, went into the bedroom. There he attacked the deceased. This assault was witnessed at least in part by Mark McEwan. There were at least 12 blows. The cause of death was penetrating sharp force injuries to the neck.

[4] Mark McEwan then ran out of the house to phone the emergency services. The appellant also left and went to a nearby house occupied by two friends, Michael Dalgarno and Nicola McDonald. He told them that he had stabbed the deceased in the neck and thought that he might have killed him. He asked Nicola McDonald to wash his clothes (apart from his underwear), which she did.

[5] The trial judge further notes that there was a great deal of blood around at the locus. Much of it apparently belonged to the deceased but the appellant had cuts on his right hand between the thumb and forefinger. Forensic examination revealed that there was blood on the deceased's body, on the appellant's underwear, and on a knife which was found afterwards in the kitchen sink. This knife was one which could have caused the fatal blows to the deceased. There was also blood on the front door and on an interior door of the house. All of the samples taken from these various sites were found to have come from the deceased, mixed with DNA elements which could have come from the appellant, or vice versa. This forensic evidence was essentially not challenged at the trial.

[6] The principal line of defence consisted in a special defence of incrimination. The appellant claimed that Mark McEwan had been responsible for the fatal attack on his stepfather, and made a statement to the police to this effect shortly after his arrest. The appellant's position, further, was that he had grabbed the knife from the incriminee and was cut, and that he had thereafter come into contact with the deceased. As the trial judge has noted, this defence was strenuously canvassed in the evidence by senior counsel for the appellant and was referred to in his closing speech. In that speech also, the evidence of the four principal Crown witnesses, namely Mrs Lindsay, Mark McEwan, Michael Dalgarno and Nicola McDonald, was strongly attacked by the defence in respect of its credibility and honesty, and to some extent on its reliability.

[7] In these circumstances, the appellant lodged three grounds of appeal. The first of these was in essence one of defective representation. The appellant maintained that he had expressed a wish to give evidence, but at the end of the prosecution case he had been advised against doing so by Mr Findlay, QC, his senior counsel at the trial. It was the appellant's recollection (apparently consistent with that of senior counsel) that he was informed that the case had gone well but there was concern that he might not make a good witness. He had accepted this advice. However, in the appeal, his present counsel, Mr Shaffer, QC, maintained that this advice had been wrong; in the circumstances of this case it was the duty of a competent counsel to advise his client to give evidence. Indeed no reasonably competent counsel could have done otherwise. More particularly, in terms of this ground of appeal, counsel noted that the defence of incrimination of Mark McEwan had been put to all of the material witnesses but had been emphatically rejected by them. This then left the voluntary statement made by the appellant to the police shortly after the incident in which he blamed Mark McEwan for the murder. However, as the trial judge correctly made clear in his charge to the jury, and as was apparently accepted by senior counsel, that statement (on the face of it wholly exculpatory) was not evidence of incrimination which the jury could rely on. This was not challenged before us. All that the defence had done therefore was to attack the honesty and credibility of the material witnesses. Despite counsel's best endeavours in that respect, however, the position at the close of the Crown case was that there were no prospects of any reasonable jury acquitting the appellant. Notwithstanding this there had been a failure to introduce the evidence which was available from the appellant of a competing version of events.

[8] In supplement of this submission, Mr Shaffer turned his attention to the responses submitted to the Court in respect of this ground of appeal by senior and junior counsel at the trial and their instructing agents. Senior counsel stated in his report that he had not prevented the appellant from giving evidence. He regarded the suggestion that he might have done so as ridiculous. While he could not now remember whether or not the appellant asked for advice, senior counsel was clearly of the view that the case had gone better than expected, given the quality of the material witnesses, and that if the appellant had sought advice, he would have counselled against him giving evidence. He had concerns that the appellant was unlikely to present well in the witness box. He confirmed that the appellant had in fact decided not to give evidence.

[9] In his report, junior counsel explained that he had no recollection of the appellant indicating that he wished to give evidence. He recalled meeting with the appellant, senior counsel and a representative from the instructing agents at the close of the evidence on 18 March 2004, when senior counsel emphasised to the appellant that the decision whether to give evidence or not was entirely his to make. The appellant was told that the case had gone better than expected and that a number of points in favour of the defence had been successfully made and could be forcefully put to the jury. The appellant then indicated that he did not wish to give evidence, and was told that he would be consulted again on the matter at the end of the Crown case on the following day. On 19 March 2004, junior counsel and a representative of the instructing solicitors (but not senior counsel) briefly consulted with the appellant at the close of the Crown case, and junior counsel noted at the time in his records that again the appellant indicated that he did not wish to give evidence. This version of events was confirmed by the solicitor's report, which makes reference to the instructions given by the appellant in an Attendance Note.

[10] Mr Shaffer maintained that the recollection of both senior and junior counsel on these matters was plainly wrong. He suggested that no consultation had taken place on 18 March 2004 because it was inconceivable that in a case where the evidence was so overwhelming, such an important decision (as to whether the appellant should give evidence or not) would not have been recorded, and acknowledged by the client. Further, a final decision on whether the appellant should give evidence would only have been taken at the end of the Crown case. The reality was that there had been no formal meeting on the subject on 18 March 2004, and the issue had not been properly discussed.

[11] In the event, we do not have to come to a view on Mr Shaffer's claim that trial counsels' recollections, to the effect that a consultation took place on 18 March 2004, were wrong. This does not touch on what we understand to be the essential argument made by the appellant in this ground of appeal. What we understood Mr Shaffer to submit was that in the present circumstances, where the evidence against the appellant could be described as overwhelming, it was not enough for defence counsel to challenge the honesty and credibility of the material witnesses however successfully that is done. Counsel had a duty to encourage the accused to go into the witness box in order to establish a competing version of events in the evidence before the jury.

[12] In response to these submissions, the Advocate Depute argued that the central issue which had to be examined was whether there had been a miscarriage of justice. In terms of the case of Anderson v HM Advocate 1996 JC 29; 1996 SCCR 114 as it applied to the present case, that involved a question of whether a stateable defence advanced by the accused to his legal representatives had not been presented (Grant v HM Advocate 2006 SCCR 365, para.[21].) An example of where a failure to put forward a strong positive and substantive defence had resulted in a miscarriage of justice was Regina v Clinton 1993 1WLR 118. But in the present case the substantive defence of incrimination had been put forward in the strongest and most emphatic terms. Counsel had therefore satisfied his principal responsibility, that of presenting his client's instructed defence. The way in which that defence should then best be conducted must remain within the proper professional discretion of counsel (Anderson p.44A-B). In the present circumstances there was in addition no duty on counsel to insist that the appellant give evidence; his responsibility was to supply sufficient information to allow the accused to make an informed decision in the circumstances of the case. There may be circumstances where in order to present the defence properly, counsel should advise that his client give evidence. But in the present case that had not been necessary. For this ground of appeal to succeed, the appellant had to show that the advice given was absurd and resulted in a defence not being presented.

[13] We have no hesitation in concluding that this ground of appeal cannot succeed. Counsel's responsibility is to put forward the defence instructed by his client in the most effective manner. In the present case, the evidence against the appellant, which the jury must have accepted, could properly be described as overwhelming. However, until the jury had reached their verdict, counsel had to consider how the defence could best be presented. Broadly speaking there were two ways in which this might have been done. Firstly, the defence could have been presented to the jury by effective cross-examination of the material prosecution witnesses. Secondly, the defence could have been put forward at the end of the prosecution case by the tendering of evidence. There may of course be cases where both approaches could be adopted. In the present case, there can be little doubt that the defence of incrimination had been clearly advanced in the course of defence counsel's cross-examination of the principal witnesses, in the course of which the credibility and reliability of the main Crown witness was significantly damaged . We were referred at length to the transcripts of the evidence, but for present purposes it is sufficient to say that from those transcripts it could cogently have been argued that, following cross-examination, Mrs Lindsay's position on the evidence had been seriously compromised, that Mark McEwan, the incriminee, had behaved badly and oddly, and that Michael Dalgarno and Nicola McDonald had admitted to being drug users and dealers, and to have been pressurised by the police to give their evidence.

[14] In these circumstances, we are satisfied that the appellant's simplistic submission in his first ground of appeal, that the only reasonable conclusion that could be reached at the end of the Crown evidence was that the appellant was bound to be convicted and that therefore he should have been advised to give evidence is plainly wrong. We have said that counsel's duty is to present, as effectively as possible, any instructed defence. The way in which he does this must remain within his professional discretion; he will almost invariably be best placed to decide on this. It cannot be an inevitable rule that when the evidence against him is strong, the accused must go into the witness box. It may be that advice to testify should be given if an available defence has not, for some reason, been fully or properly or effectively presented to the jury; but as the Advocate Depute said, the opposite could be equally true, and trial counsel would always be in a better position to judge what advice should be given. There may be many good reasons why an accused person should not give evidence. Counsel may be of the view that any of the advantages gained by effective cross-examination could be lost by a poor performance on the part of the accused in the witness box, and if he considers that the accused may not be a good witness, then it would be his duty to advise against the giving of evidence. This is, it seems, what happened in this case. In our view this sort of ground of appeal is only likely to have any chance of success in the first place where a defence case which undoubtedly exists and which has been intimated to the accused's legal representatives has not been properly put forward as a result of advice not to give evidence. It is not arguable in our view in the circumstances of this case that the advice not to give evidence was not such that any competent counsel would give in the circumstances, and resulted in a miscarriage of justice. This ground of appeal is therefore refused.

[15] The second ground of appeal tabled by the appellant concerned the evidence of the witnesses Michael Dalgarno and Nicola McDonald. In the course of cross-examining these witnesses, senior counsel for the appellant was concerned with testing their honesty and credibility, and disputing the confessions that the appellant was said to have made to them shortly after the incident to the effect that he had stabbed the deceased and thought he had killed him. In the course of that cross-examination, senior counsel questioned both witnesses on their drug use, and put to them that they also dealt in drugs in order to feed their drug habit. Both witnesses agreed to this. Further, counsel put to Michael Dalgarno that he had engaged in shoplifting in order to buy drugs for himself. In these circumstances counsel for the appellant maintained that this cross-examination had gone far beyond what was necessary and had clearly attacked the character of both witnesses. This tactic would have inevitably exposed the appellant, had he given evidence, to an examination of his own criminal history, which was significant, and this may have had an effect on his decision not to give evidence.

[16] In his response to the grounds of appeal, senior counsel for the appellant at the trial said this approach, as suggested by the appellant's counsel, was wholly unrealistic; junior counsel did not respond; and the solicitors in their reply maintained that what counsel did was fully explained and explored with the appellant. However, Mr Shaffer maintained that this course of cross-examination should not have been embarked upon without the fullest discussion with the client before each witness gave his evidence and that counsel must receive the fullest instructions on such cross-examination from his client.

[17] Again we can find nothing of substance in this ground of appeal. It appears to be the case that senior counsel at the trial is criticised for not asking the appellant's instructions before embarking upon an attack on the character of certain witnesses. But it can clearly be seen from the solicitor's note (which was not challenged before us) that instructions were specifically given by the appellant to attack the honesty and credibility of these witnesses. Those instructions were to the effect that the witnesses were lying. It was then a matter for counsel to decide how to carry out those instructions. In any event, there could not be said to have been any prejudice to the appellant as a result of this cross-examination. If the Crown had wished, in response to this attack on the character of these witnesses, to refer to the appellant's previous convictions and bring them to the attention of court, an application in terms of section 270 of the Criminal Procedure (Scotland) Act 2005 would have to be lodged. No such application was made. The responsibility properly afforded to counsel in these circumstances to conduct the defence as he sees fit is very wide (Anderson v HM Advocate p.44A-B). There is in our view therefore no merit in the appellant's submissions on this matter, and the second ground of appeal also falls to be refused.

[18] The third ground of appeal submitted by the appellant was concerned with the fact that no forensic evidence was led by the defence. Although no relevant transcripts had been obtained it was said that there had been almost no cross-examination of the scientific evidence led by the Crown. This evidence was to the effect (as indicated earlier) that significant blood-staining was found which related to the appellant and deceased, and which could provide compelling evidence of the appellant's involvement in the murder. In those circumstances, defence counsel should have instructed their own forensic evidence. It was specifically accepted by Mr Shaffer that what those reports might have produced was purely speculative. In support of this ground of appeal, counsel suggested that questions could then have been put to the Crown forensic witnesses that their testimony was consistent with the appellant's versions of events.

[19] This ground of appeal is unstateable. For such a ground to succeed the appellant would have to show that any such forensic reports would have shown specific outcomes. It is not sufficient to engage in speculation in this matter. The Advocate Depute referred us to the cases of McIntosh v HM Advocate (No 2) 1997 SCCR 389 at 396 and Ditta v HM Advocate 2002 SCCR 891 [15] to [17], which say precisely that. We are satisfied that these authorities are conclusive and this ground of appeal also fails. We would add only that the information before us from all the appellant's representatives is that the pathologist and forensic scientist who gave evidence were cross-examined on a basis which would have allowed it to be argued that the evidence was consistent with the appellant's position on this part of the evidence.

[20] For all these reasons, therefore, we refuse this appeal.