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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Chatham v. Her Majesty's Advocate [2005] ScotHC HCJAC_49 (19 April 2005) URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_49.html Cite as: [2005] ScotHC HCJAC_49, [2005] HCJAC 49 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Hamilton Lady Cosgrove
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[2005HCJAC49] Appeal No: XC452/03 OPINION OF THE COURT delivered by LORD HAMILTON in NOTE OF APPEAL by NICOLA CHATHAM Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jackson, Q.C., Miss Livingstone; Balfour & Manson
Respondent:
G. Mitchell, A.D.; Crown Agent19 April 2005
[1] In October 1999 in the High Court at Glasgow the appellant was tried, along with George McCutcheon, on a charge of having on 27 May 1999 murdered Colin Vance. Both accused were convicted of that charge. Both appealed against conviction. The appeal proceedings in respect of George McCutcheon, which involved some legal complexity, were dealt with first. Ultimately his appeal was refused. The appellant's appeal has now come on for hearing. [2] At the time of the incident giving rise to the charge the appellant was 16 years of age. She was living in a flat in Glasgow with her mother, Brenda Chatham, and George McCutcheon, her mother's then partner. The incident which resulted in the death of Colin Vance took place in that flat. It followed incidents which had occurred earlier that week, in the course of which threats had been made to Brenda Chatham by Colin Vance, who lived in the flat above with his partner Carla Cairns, and threats in turn had been made to Colin Vance by George McCutcheon. On the day on which he died Colin Vance and Carla Cairns had been drinking heavily. Apparently brooding about the earlier incidents, Colin Vance went down at about 11 p.m. to the lower flat. He was armed with a large kitchen knife taken from the upper flat and entered the lower flat so armed. In it were George McCutcheon and Brenda Chatham, both well under the influence of drink, and the appellant. An incident took place in the hallway of the lower flat, in the course of which Colin Vance sustained multiple cutting or stabbing wounds. Only one wound, a stab wound, proved fatal. None of the others would have been likely to have led to death, provided that prompt medical treatment had been given. While there was evidence on which the jury would have been entitled to convict George McCutcheon on the basis that he personally had inflicted the fatal wound, the charge of murder directed against the appellant could, on the evidence, proceed only on the basis that she had acted art and part with McCutcheon in the killing. The jury were so directed. [3] The principal source of evidence against the appellant was certain admissions which she made, or was said to have made, after the event. Apart from a remark attributed by Carla Cairns to the appellant in the course of the incident (the import of which may be ambiguous), these comprised, first, remarks said to have been made by the appellant shortly after the incident to a friend, Stacey Lennox, in the presence of Lennox's boyfriend, Kenneth Muir, secondly, an "outburst" of a potentially incriminatory character made in the early hours of 28 May in the course of the appellant being interviewed by the police as a potential witness to events, followed by responses to questions put to her in the course of a taped interview under caution conducted by police officers on the basis that she was by that stage a suspect and, thirdly, her responses at judicial examination on 2 June 1999. It will be necessary in due course to describe these evidential elements in more detail. For immediate purposes, it can be taken that their terms were such as to amount to a statement, or to a series of statements, by the appellant that she had actively participated with George McCutcheon in an assault, with a knife or knives, on Colin Vance, albeit that, in at least some instances, these statements were associated with explanations which might lay a basis for her having acted in self-defence - in the sense of the defence of George McCutcheon, whom she regarded as her step-father or "da". [4] The Note of Appeal lodged on behalf of the appellant sets out nine grounds of appeal, one of which was later withdrawn. Subsequently a further ground of appeal against conviction was received. In the event, at the hearing of the appeal, this court heard argument on only three of these grounds. These were ground 4 (that there was insufficient evidence in law of the appellant having taken part in a concerted attack on Colin Vance), ground 1 (that the trial judge failed to give adequate directions to the jury in respect of the various statements attributed to the appellant) and ground 6 (that, esto ground 4 was rejected, the trial judge failed to give adequate directions to the jury in relation to the evidence, on the basis of which concert might be proved). [5] In presenting his submissions on ground 4 Mr. Jackson for the appellant accepted that, for the purposes of sufficiency, the appellant's statement or statements constituted a source of evidence that the appellant had participated in a knife attack on the deceased; but, as these statements all came from the appellant, they constituted a single source. The issue was whether there was corroboration of that source. In her speech to the jury the Advocate depute had relied, as her first basis for corroboration, on the proposition that, having regard to their terms, these statements disclosed special knowledge and were thus "self-corroborating". The trial judge had rightly directed the jury that in the circumstances corroboration could not be found on that basis. The remaining sources relied on by the Advocate depute could not, Mr. Jackson submitted, provide corroboration. These were (1) evidence from Carla Cairns that the appellant was in the hallway of the flat at the time when Colin Vance was stabbed there, (2) certain forensic evidence in relation to bloodstaining on the appellant's clothing, (3) evidence that after the incident the appellant had changed her clothing, (4) evidence from a forensic pathologist as to the sites of the wounds which Colin Vance had sustained, together with evidence from Carla Cairns as to where in the hallway the appellant had been standing in relation to him and (5) evidence as to the place (in a cupboard in a bedroom of the flat) where a knife stained with Vance's blood was found, coupled with evidence that the appellant had at one stage been near the doorway to that bedroom. The Advocate depute, Mr. Jackson submitted, had misrepresented the forensic evidence by suggesting that it pointed to the appellant having been in direct physical contact with the deceased, when in truth it pointed only to a degree of proximity between them. Factors (1), (2) and (4), properly understood, pointed, whether individually or cumulatively, only to the appellant having been in the vicinity of the deceased at the time of the attack, not to her participation in it. It was necessary to bear in mind that the hallway was of small dimensions and that blood, lost from multiple wounds in the course of a struggle or scuffle there, was likely to be found on any person who happened to be in that space. Factor (3) did not advance matters; it was only natural for a person whose clothes had become bloodstained to change them. Nor did factor (5). [6] The Advocate depute, in response to this ground, submitted that the appellant's confessions, which she had at no time sought to retract, constituted a good starting point for the Crown. On at least three occasions she had spoken to having been involved in a multiple knife attack upon the same person in the same place. To her later confessions was to be added evidence from Carla Cairns that the appellant had, in the course of the incident, shouted to her - "My da's going to plunge your boyfriend". This, although coming ultimately from the same source (namely, the appellant) was consistent with one of the appellant's confessions to the effect that she had provided McCutcheon with two knives. All that was required was evidence from another source or sources consistent with the appellant's confessions. That was to be found in evidence from various sources, lay and professional, that she was or must have been very close to the deceased when he was struck with a knife or knives. The change of clothing was also significant when coupled with evidence that all the appellant's clothes had, shortly after the incident, been put into Lennox's washing machine. The forensic testimony, indicative of various lacerations on the deceased's head and neck, was consistent with evidence from Carla Cairns that the appellant had at one point been behind the deceased, from which point these lacerations could have been inflicted. The finding of the knife in the bedroom cupboard, while not on its own sufficient to provide corroboration, was an evidential element which could be taken into account with the rest of the evidence. Although Carla Cairns, while testifying to the appellant's location in the hallway, had positively stated that the appellant had not been involved in the fight between McCutcheon and the deceased, the jury would have been entitled to reject the latter testimony while accepting the former. There was a sufficiency of evidence that the appellant had participated in a knife assault on the deceased. [7] It is clear that the principal source of evidence that the appellant had criminally participated in the killing of Colin Vance was her own statement or series of statements. Those statements were not in all respects consistent one with another, but they included an unqualified confession, allegedly made in the presence of Lennox and Muir, that she had stabbed the deceased three times. Although Carla Cairns in her evidence positively excluded the appellant from having been involved in the fight between McCutcheon and the deceased, the jury would have been entitled to reject that aspect of her evidence, while at the same time accepting other aspects. In these circumstances all that was required for the purposes of sufficiency was evidence, independent of the appellant herself, which was capable of providing support or confirmation of her direct evidence of having stabbed the deceased (Fox v. H.M. Advocate 1998 J.C. 94, per Lord Justice-Clerk Cullen at page 109C-D). In our view there was such independent evidence. We recognise that the bloodstaining on the appellant's clothing could have resulted from her mere presence as an innocent bystander in the small hallway where, on any view, there must have been a substantial and perhaps indiscriminate effusion of blood. But, as is plain from Fox v. H.M. Advocate, evidence to be corroborative does not require to be more consistent with guilt than with innocence. The bloodstaining on the appellant's clothing "fits with" the direct evidence, in the sense indicated by Lord Justice-General Rodger in Fox v. H.M. Advocate at page 101A-B. Moreover, the distribution of the deceased's wounds, as spoken to by the pathologist, was consistent with some of them having been inflicted by a person standing in the hallway in the place or places where the appellant was seen standing. Her subsequent action of having all her clothing put through a washing machine also tends to confirm a guilty involvement in the stabbing event. In all these circumstances, while the evidence was capable of an alternative interpretation, there was, in our view, a sufficiency of it to allow the case against the appellant to go to the jury (see also Bovill v. H.M. Advocate 2003 S.C.C.R. 182, at par. [24]). We accordingly reject this ground of appeal. [8] We turn now to ground 1. In addressing this ground it is necessary to appreciate not only that the appellant's statements (or alleged statements) constituted the principal evidence relied on by the Crown in seeking her conviction but also that these statements varied inter se both in their content and in the circumstances in which they were respectively made. The first in time was a statement or statements attributed to her by Stacey Lennox as having been made after the appellant had arrived, shortly after the stabbing incident, in a distressed state at the house close by of the mother of Lennox's boyfriend, Kenneth Muir. Both Lennox and Muir were at the time of the trial 16 years of age. According to an initial statement taken by the police from Lennox later that morning, the appellant had said in her presence that she had "stabbed the guy three times". According to a statement taken by the police from Lennox a few hours later, the appellant had said in her presence that "she [the appellant] had seen the guy attacking her da and she ran down the hall and stabbed the guy three times, two in the belly and one in the chest". When examined at the trial Lennox did not volunteer that the appellant had made such a statement in her presence but, on being pressed by the Advocate depute with her police statements, she accepted that she had made these statements and that they were true. In cross-examination by the appellant's counsel, Lennox accepted that she had been smoking cannabis that day, that she had been taking anti-depressant medication and that, when the appellant had arrived in an hysterical state, she (Lennox) was herself in a confused state. She and Muir had been trying to find out from the appellant what had happened and had put a number of questions to her. Lennox's recollection of the terms and the sequence of the questions and answers was less than precise. Lennox also stated at one point in her cross-examination that the appellant had, on the same occasion, told her that she [the appellant] had "never done it". One of the incriminating statements attributed to the appellant by Lennox in a police statement was put to the appellant at her judicial examination. She denied making any such statement. [9] Kenneth Muir, on examination at the trial by the Advocate depute, testified that he had been present in his mother's house when the appellant had arrived in a "very bad" way. He had heard the appellant say to Lennox that she "had stabbed the guy up above her". When asked further about what the appellant had said about the frequency of the stabbing, he responded "I think she said three times". He acknowledged that, when first interviewed by the police about what he knew, he had lied to them. In cross-examination his testimony was challenged as to its consistency with what he had earlier told the police. [10] The appellant herself was first interviewed by the police as a potential witness to the killing of the deceased. In the course of that interview, in what was subsequently described as an "outburst", she stated that at one point she had picked up a knife and run down the hall with it and "it went in him about here" (indicating the area of the stomach). She had added that McCutcheon had taken the knife off her and stabbed the deceased three times (in the area of the chest). The officers at that point properly terminated the interview. The appellant was later detained, cautioned and interviewed under tape-recorded conditions. Her "outburst" statements were put to her. She accepted that she had made them. She also gave a fuller account in which she again spoke to having, in the context of a struggle between McCutcheon and the deceased in which the latter had pulled out a knife, herself picked up a knife and run down the hall with it. Her account was to the effect that that knife had entered the body of the deceased, though it was far from clear on her narrative whether that entry had been a deliberate act on her part. She then spoke to McCutcheon having taken the knife from her and used it upon the deceased. When the police officers who had taken these statements gave evidence at the trial, they were cross-examined as to the circumstances in which the appellant was interviewed, including her emotional state at the time. Counsel also elicited that she did not have, at the interview, the benefit of legal advice and that, though a senior police officer had been present as well as the interviewing officers, the former had taken no active steps to protect the appellant's interests. [11] As earlier noticed, the appellant was judicially examined. At that examination she admitted certain of the statements attributed to her but denied others. Her position was that she had acted in defence of her step-father, combined with a statement that the single stab to which she had been party had been accidentally inflicted at the point when she had handed the knife to McCutcheon. [12] The appellant did not give evidence at the trial. In the course of his address to the jury counsel for the appellant, recognising that the appellant's extrajudicial statements were a critical aspect of the Crown case against her, invited the jury to consider what approach they should adopt to these statements. He introduced his remarks on this topic by stating that the trial judge would, he did not doubt, direct them on the appropriate approach. Counsel submitted that the jury would first require to be satisfied that the appellant had actually made the statements attributed to her and that they had been accurately reported or recorded. The accuracy of what the appellant had said to Lennox and to Muir and even to the police was in issue. Further, he contended, it was necessary, in particular as regards what had happened in the police station, to consider whether what had been obtained from the appellant by way of statements had been fairly obtained. Counsel mentioned, among other matters, the substantial length of time the appellant had been in the police station during the early hours of the morning and the absence, he claimed, of effective support for her, then a 16 year old girl, during the interviews. [13] In his charge to the jury the trial judge gave a general direction to them that it was for them to determine what the evidence amounted to and what it established. He told them that the appellant had, according to the Advocate depute's submission, confessed, in various forms and different versions, to stabbing the deceased and that it was for the jury to decide what these confessions all amounted to. He directed them, in general terms, that they could accept or reject evidence between and within witnesses. However, he gave them no express directions as to their approach to, or use of, the various statements attributed to the appellant. [14] The extent to which specific directions need to be given by a trial judge to a jury will depend largely on the circumstances of the particular case. Important factors will be whether a particular aspect of the evidence gives rise to a live issue of importance at the trial and whether legal considerations bear upon it. In the present case the confessions attributed to the appellant by various persons at various times were of critical importance to the Crown case. Rules of law have been evolved as to the approach to, and use of, extrajudicial statements. The evidence as to the statements said to have been made in the presence of Lennox and Muir, was challenged as to its accuracy. The evidence as to the statements made to the police was challenged in regard to whether they had been fairly obtained. The Advocate depute submitted, under reference to Renton and Brown - Criminal Procedure at para. 24-39 and Codona v H.M. Advocate 1996 S.C.C.R. 300 and to certain evidence from the police officers, that there had been no unfairness in the interviews. In our view, while that was arguably so, it was not obviously so. There was evidence upon which the jury, if appropriately directed, might have considered that the circumstances under which the appellant was interviewed were such as to give them reason to doubt the reliability of what she had then said. The circumstances in which the interviews took place, including their fairness, were relevant to the weight which might properly be attached to the statements made in the course of them (Thompson v. Crowe 2000 JC 173, per Lord Justice-General Rodger at page 202; Chalmers v. H.M. Advocate 1954 J.C. 66, per Lord Justice-Clerk Thomson at pages 82-3). The fact that counsel for the appellant did not seek to have any of the statements ruled as inadmissible in law, and so wholly excluded from consideration by the jury, did not obviate the need, in the circumstances of the present case, for a direction on the principles applicable to the jury's approach to them. Moreover, the various statements attributed to the appellant showed many inconsistencies one with another. [15] In these circumstances we have come to the view that the omission by the trial judge to give to the jury any direction specifically related to how they should approach the various statements constituted a misdirection by him. We are also satisfied that, the statements being of critical importance in this trial, the misdirection gave rise to a miscarriage of justice. Only with the assistance of such a direction could the jury properly evaluate the content of the statements and determine how any of them, which they accepted as truthful and reliable, stood in relation to evidence available as corroboration. On that ground this appeal is allowed and the conviction quashed. [16] In these circumstances it is unnecessary to discuss the other ground of appeal argued before us (ground 6).
