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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Osborne
Lord Johnston
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[2007] HCJAC 14
Appeal No: XC739/05
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
APPEAL AGAINST CONVICTION
and SENTENCE
by
JOHN GARDINER
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: Findlay, Q.C., Connor; Beltrami Answar, Glasgow
Alt: K. Stewart, A.D.; Crown Agent
16 February 2007
[1] The appellant
originally faced an indictment containing three charges, the first one of
which, being one of fraud, was dropped by the Crown. The other two were in the following terms:
"(2) on
4 October 2004 at 1 Sinclair Drive, Helensburgh or elsewhere to the Prosecutor
unknown you did assault Margaret June Gardiner, your wife, residing there,
repeatedly strike her on the head with an instrument to the Prosecutor unknown
or by other means to the Prosecutor unknown did murder her and
(3) between
4 October 2004 and 3 December 2004, both dates inclusive, at 1 Sinclair Drive,
Helensburgh, 1 Langton Crescent, Pollok, Helensburgh Police Office, Dumbarton
Police Office and elsewhere with intent to defeat the ends of justice and to
conceal your guilt in respect of charge (2) hereof, you did;
(a) on
4 or 5 October 2004 remove the body of said Margaret June
Gardiner from 1 Sinclair Drive, Helensburgh and transport it in the
boot of motor vehicle registered number SB03 GHG to a location in Scotland to the Prosecutor unknown and
conceal it there or otherwise dispose of her body;
(b) between
4 October 2004 and 15 October 2004, both dates inclusive, at
1 Sinclair Drive aforesaid, wash and
clean the boot of said motor vehicle, a towel and clothing;
(c) between
4 October 2004 and 3 December 2004, both dates inclusive,
falsely state to members of her
family, colleagues, friends and to police officers engaged in establishing her
whereabouts that she had left the house at 1 Sinclair Drive aforesaid in
possession of £500 of money and her passport and travelled to the South of
England or France;
and
(d) between
6 October 2004 and 3 December 2004, both dates inclusive,
falsely state to said members of her
family, friends and police officers that she had contacted you by mobile
telephone and that you did not know her whereabouts;
and by these means you did attempt to
conceal the commission of these crimes and to divert police enquiries from the
investigation thereof and did attempt to pervert the course of justice."
[2] On 2
September 2005, after trial at the High Court in Paisley, the appellant was found guilty by a
majority in respect of charge (2) as follows:
"on 4 October
2004 at 1 Sinclair Drive, Helensburgh or elsewhere to the
prosecutor unknown you did assault Margaret June Gardiner, your wife, residing
there by means to the prosecutor unknown did kill her".
He was found guilty of charge (3) in terms thereof.
[3] It is at once
to be noted that the verdict of the jury in respect of charge (2) involved both
deletions and a substantial amendment reducing the charge to culpable homicide.
[4] It is also to
be noted that when the jury returned with their verdict the foreman indicated
that they wished to return a verdict of culpable homicide, but there then
ensued considerable discussions between counsel and the trial judge, mostly
outwith the presence of the jury, before the actual terms of the verdict now
recorded were agreed.
[5] It also has
to be noted that a great deal of the averments in charge (3) were not disputed
by the appellant at the trial in respect that he had accepted he had disposed
of his wife's body, he said in the River Leven, but although that river was
extensively searched, both on behalf of the Crown and the defence, no body was
discovered nor has it ever been since that time. The other aspects of that charge were also
not materially disputed
[6] However, the
evidence revealed that at the locus, namely 1 Sinclair Drive, Helensburgh, fragments of bone were
discovered which were identified in evidence as being internal to the
skull. A part of a tooth was also found
and there was evidence of blood staining in the house, although not on the
steps in question to which reference will further be made. The appellant had extensively cleaned the
house of blood staining after the death had occurred, however that may have
been caused.
[7] Before the
jury the Crown's position primarily was that the appellant had murdered his
wife substantially by the means averred in the original charge, namely striking
her on the head with sufficient force to kill her with some instrument. The appellant's position was disclosed
initially in a recorded conversation between him and his daughter Fiona which
took place in the police station at Dumbarton on 5 December
2004 and
thereafter. On the same day he also gave
a statement to the police which is recorded.
Both documents were lodged as productions, namely Defence No. 4 and
Crown No. 13 respectively.
[8] The conversation
as recorded in writing by a police officer is in the following terms:
"Interview Room No. 1 at D.P.O. with
Fiona Gardiner so she could speak to her father John Gardiner at his request.
Fiona: - 'Is Mum dead?'
John:- 'I've told the Police'
Fiona: - 'Are you going to tell me?'
John: - 'Yes she's dead, I didn't murder her, I
killed her it was an accident'.
Fiona: - 'Where is she?'
John: - 'In the River Leven'
Fiona: - 'Where?'
John: - 'I've told the Police'
Fiona: - 'I don't care what you've told the Police
tell me'
John: - 'The bridge going out from the roundabout, the
first bridge'
Fiona: - 'When?'
John: - 'About two o'clock in the morning, the Tuesday morning'
Fiona: - 'What happened?'
John: - 'Mum came home at lunch time and we had a
blazing row, she was making a sandwich and had a knife in her hand, she went for
me, I thought she still had a knife'
Fiona: - 'What happened after that?'
John: - 'I turned her and pushed her and she fell
down the kitchen steps'
Fiona: - 'How do you know she was dead?'
John: - 'She was dead'
Fiona: - 'You tell the police everything and your
going to tell them the whole truth and there is going to be no more lies',
Fiona then left quickly and upset".
As regards the police statement the relevant part is in the
following terms:
"Margaret told me that she intended
to phone up First National Bank to cancel the loan arrangement, I said she
couldn't as I had already redeemed some of the cheques sent, when I said this
Margaret flew into a rage, striking out at me with her right hand, I thought
she still had the knife in her hand but I later found out she didn't as it was
still lying beside the rolls.
I sidestepped her and gave her right
hand a turn, Margaret continued past me and out the back door, crashing head
first onto the concrete steps, blood seemed to just flow and flow and flow and
I think it was then I checked Margaret's neck and wrist but couldn't find any
pulse at all. I think it was then as
well that I turned her head, the back of her head had just caved in like an egg
shell. I could see bits. What looked like brain, there were bits and
pieces on the steps as well then sat down on the steps and the first thing I
thought was Bloody hell I have killed my wife.
I don't honestly know how long I sat there or what was going through my
head."
[9] The appellant
gave evidence on his own behalf which is recorded by the trial judge in his
report in the following terms:
"The
appellant gave evidence on his own behalf.
He was aged 58 and had been married for 34 years. He had been a submariner based at
Faslane. He had been convicted only of
motoring offences. After leaving the
Navy he ended up massively in debt due largely to the excessive use of credit
cards. He was getting his marching
orders from Margaret who knew fine well he was using the credit cards. The loan he took out was to pay off the
credit cards. He did forge her
signature. She told him to. She knew about the loan. It came through.
They had an argument on the evening
before Monday 4 October. She had opened
the mail, seen the loan application and that it was not her signature. She said she now had a lever to get him to
go. He had started looking for a
flat. He was going to go on the Monday
but she came unexpectedly at lunchtime when she met her death. His police statement was the truth. She said she was going to phone and cancel
the loan. He said she could not as he
had had part of the money. She said "you
bastard". She came towards him. He thought she had a knife. He was near the open door. She rushed towards him and struck out. He turned her right hand. She went straight out the back door. There seemed to be blood everywhere. Her head was on the path and her body on the
steps. She was lying on her back. He sat on the steps. He eventually checked her pulse. She was dead.
He lifted her head. It was badly
damaged over the left ear. He saw
bone. It was a massive head injury. He thought he had killed her. He did not push her or force her out the
door. He did not mean her any harm. He had done nothing to cause her to go out
the open door.
He then moved her body to the
bath. He wrapped a towel round her
head. He cleaned up. He moved her body about 1.30/2am.
He wrapped her in polythene and put her in the boot of her car. He drove to the bridge and put her in the
water. He took the towel home and put it
in the washing machine. Thereafter he
persisted with the charade. In light of
their verdict, the jury must have accepted at least part of that account."
[10] It again has
to be immediately observed that in the three different explanations that the
appellant gave, namely in the conversation with his daughter, the statement to
the police and his evidence in court, the appellant adhered to the general
position that there was an argument between him and his wife and that she did
suffer her injury by falling down the back steps of the house. In the conversation with his daughter he
admitted to pushing her. In the other
two versions he indicated that he had come into contact with her as she came
towards him by turning her right hand.
On all three versions, however, as we have already indicated she was
propelled down the steps hitting her head and suffering the fatal injuries.
[11] The judge also
records that evidence was given by pathologists both on behalf of the Crown and
the defence and that in particular Dr. Marjory Black indicated that a great
deal of force would be required to cause the injury that would produce bone
from inside the skull, albeit at a point where the skull was relatively weak
and that such was not likely to happen simply by a fall from a standing
height. Dr. Grieve who gave evidence for
the defence did not rule that out, but it is clear that the jury were more than
entitled to conclude that the degree of force necessary to render the injury
fatal would require some additional propulsion from some source rather than
simply a fall. It is important also to
recognise the evidence of Dr. Sheardy which was highly relevant and founded on
by the advocate depute in his speech to the jury. This aspect of the evidence plays an
important part in our consideration of the case.
[12] Again it has
to be noted that the version advanced by the appellant on the three different
occasions substantially differed from that which the Crown sought to put before
the jury, namely the use of an instrument to inflict the injuries on the
deceased's skull. It follows that the
only basis upon which the jury could bring in a verdict of culpable homicide
was in relation to the version advanced on behalf of the defence, which the
trial judge left open to the jury to consider.
(See charge pages 13 and 14). It
was described by the Crown as a backup position but the Crown essentially
maintained their support of the charge as originally brought.
[13] Against that
background the appellant lodged four grounds of appeal in the following terms:
"1. In
terms of Charge 2, the appellant was indicted to the effect that he
did assault his wife, Margaret June
Gardiner by repeatedly striking her on the head with an instrument to the
Prosecutor unknown or by other means to the Prosecutor unknown murdering
her. The final verdict delivered by the
jury in respect of this charge was guilty by majority of the lesser offence of
culpable homicide under deletion of the words 'repeatedly strike her on the
head with an instrument to the prosecutor unknown', deletion of the word
'other' and substitution of the word 'kill' for the word 'murder'.
This was contrary to the position
presented by the Crown which was to the effect that the appellant had indeed
struck his wife repeatedly with some unknown blunt instrument. By its verdict the jury indicated that it had
rejected the Crown position.
In his address to the jury, the
Advocate Depute adopted what can only be described as a back up position. This was to the effect that if the jury
accepted the account of the pannel to the effect that his wife had made some
form of lunge at him and in steering her past him the pannel had pushed her
towards an open door as a result of which she fell down stairs fracturing her
skull and causing her death, this was a form of assault and the death was
culpable. The jury was not entitled to
bring back a verdict of culpable homicide based on this proposition as there
was insufficient evidence to indicate the necessary mens rea on the part of the appellant.
Furthermore, the jury by its verdict
deleted the whole specification of the charge libelled. Against the background of the evidence in
this case, the jury was not entitled to return a verdict of culpable homicide
in the above terms.
2. The
directions given by the learned Judge at p70 to p71 of his charge
were misconceived. Against the background of the evidence, the
learned Judge ought not to have directed the jury in these terms. He may have inadvertently pointed the jury in
the direction of a verdict which was not open to it.
3. The
trial judge erred in failing to direct the jury that if it rejected the
explanation advanced by the Crown as
to the means by which Margaret June Gardiner died, then it was bound to acquit
the accused.
4. The
trial judge ought to have directed the jury that if it accepted the
evidence given by the accused or if
it raised a reasonable doubt it was obliged to acquit Reference is made to page
6."
[14] It is to be
noted that grounds 2, 3 and 4 all related to alleged misdirections in respect
of which Mr. Findlay maintained on behalf of the appellant only grounds 3 and
4, but his principal position before this court related to ground of appeal 1.
[15] In essence he
argued that upon the version advanced by the appellant in each of the statements
and in the witness box, the admissions so far as they went did not disclose any
unlawful act which would render the subsequent death capable of being
categorised as culpable homicide. The
proper construction of the version advanced on behalf of the appellant was that
the death was accidental and that there was certainly no evil intent on the
part of the appellant which would warrant the jury determining that an assault
had taken place. He submitted that it was
plain the jury had rejected the Crown's principal position and were advancing
their position solely upon the evidence of the appellant. The fact that there was admitted physical
contact on any of the versions advanced by the appellant did not categorise
such contact as an assault, more to be likened to an accidental collision
between persons in a street or, as Mr. Findlay put it, at an airport busy with
people. While he did not go so far as to
categorise the jury's verdict as perverse, essentially he submitted that no
reasonable jury should have concluded that an assault had taken place on the
versions of events put forward by the appellant, however they were
scrutinised. Again Mr. Findlay did not
go so far as to suggest that the jury could not bring in a verdict of culpable
homicide on a version of events that was never libelled. However, in effect, his submission was they
were not entitled to categorise the conduct of the appellant on his own
admissions as amounting to an assault in law on his wife, albeit with no
intention to kill. In any event it was
submitted that assuming it could be categorised as an assault on the
appellant's own version there was no corroboration of any evil intent on his
behalf.
[16] With regard to
the now remaining grounds of appeal relating to alleged misdirection Mr.
Findlay did little more than simply adhere to their terms, pointing to what he
regarded as inadequacies in the charge in each respect, the inadequacies being that
of omission rather than misdirection.
[17] In reply the
advocate depute referred again to the conversation recorded between the
appellant and his daughter, as a reference or admission, to the word
"pushed". That, he submitted, was
sufficient to support an entitlement of the jury to consider that an assault,
albeit a very minor one, had taken place with catastrophic consequences. The trial judge had correctly left the issue
to the jury who had plainly accepted in principle the version of events
advanced on behalf of the appellant. In
support of the verdict of culpable homicide he referred us to Hartley v H.M. Advocate 1989 S.L.T. 135 and Lourie v H.M. Advocate
1988 S.S.C.R. 634. He also made
reference to Burnett's Treaties on the
Criminal Law of Scotland, page 26, where various examples of the crime of
culpable homicide are stated, albeit in an historical context.
[18] It was
important, submitted the advocate depute, to recognise the degree of force that
the pathologists were able to divine from the miniscule evidence of bone and
tooth, the body having never been recovered to make a proper examination
practicable. However, that, he
submitted, indicated a contribution by propulsion or momentum from the actings
of the appellant to eliminate the notion that the deceased had died simply from
an unassisted fall down the steps. He
relied heavily on the evidence of Dr. Marjory Black, as recorded by the judge
in his report.
[19] As far as
corroboration was concerned, under reference to H.M. Advocate v Fox 1998
S.C.C.R. 115 corroboration was capable of being found by the jury firstly from
that fact, namely the increased momentum or propulsion that would be required
to cause the fatal injury, there being no other person conceivably involved in
the incident than the appellant and his wife, but secondly and equally
importantly the conduct of the appellant after the event, namely initially
endeavouring to cover up the evidence of blood staining and the like; not going to any authority for help or
explanation and, on his own admission, disposing of the body together with a
campaign of deceit and cover up. All of
these factors were sufficient to support
a view of a guilty mind reflecting his responsibility for his wife's death and
the way it had come about. At the end of
the day the advocate depute submitted there was sufficient evidence to support
a verdict of culpable homicide by corroborated evidence.
[20] As regards the
supplementary grounds of appeal alleging misdirection the advocate depute's
position was that in respect of the general directions given by the trial judge
as to reasonable doubt and the more particular ones as regards accident, on
page 11, and the passage already referred to on pages 13 and 14, the trial
judge had adequately left the matter to the jury, albeit he had not rehearsed
the evidence.
[21] Before dealing
with the main aspect of this appeal, namely in relation to ground of appeal No.
1, we are satisfied that the charge to the jury does not disclose any omission
or misdirection such as to render the claim of misdirection to the jury
viable. The judge does raise the
question of reasonable doubt in general terms and also, more particularly, in
the context of what he says on pages 13 and 14 with regard to culpable
homicide. He also in passing refers to
the possibility of accident on page 11.
While the charge could be described as brief, having regard to the
length of the trial, we do not consider it to be defective in any way as to
disqualify or affect the validity of the jury's verdict.
[22] The much more
important point relates to the main submission by Mr. Findlay as to the validity
of the classification of assault based on the accused's own admissions leading
to culpable homicide, and thereafter the issue of corroboration.
[23] It must be
emphasised that the approach to this court to this issue is restricted to or
extends only to the question of whether or not the jury were entitled, upon the
evidence, to bring in the verdict that they duly did of culpable homicide. This places a high burden on the appellant's
position before this court which in general terms would have in reality to be
predicated on the contention that no reasonable jury could have brought in such
a verdict upon the evidence before them, even if that is not categorised as
perversity. At the end of the day Mr.
Findlay did not shrink from that proposition.
[24] Against that
background it is our opinion that the evidence relied on by the Crown,
particularly having regard to the phrase used by the appellant during his
conversation with his daughter, namely "pushed", coupled with the pathological
evidence as to the degree of force necessary to inflict the type of injury that
would produce bone from inside the skull would be likely to require an
increased momentum or propulsion other than a mere fall, supports the position
that the jury were entitled to conclude that an assault had taken place, there
being no issue of self-defence.
[25] We are further
satisfied that the evidence of the pathologists and particularly Dr. Black
again entitled the jury to consider that there was corroboration of an assault
having regard to the consequences and the likely cause of them in terms of
injury, again having regard to the view that violence additional to that from a
mere fall was required to achieve the actual contributing results, namely death. Equally, we are of the view that the conduct
of the appellant after the event, namely clearing up the house to the best of
his ability, disposing of the body, not contacting any authority for either
help or to give an explanation and indeed delaying any question of alarm or
concern for some considerable time all point to a guilty mind, which again
would entitle the jury to consider that that was consistent, or capable of
being consistent, with an assault (Fox
supra), causing or contributing to the death.
[26] For these
reasons we are satisfied that, against the background of entitlement, the jury
were entitled to bring in a verdict of culpable homicide as they did,
notwithstanding the departure from the libel as originally presented by the
Crown. Once the matter was left open to
the jury, which the trial judge was not criticised for so doing, the issue of
culpable homicide was at large for them to consider.
[27] In these
circumstances we are of the view that this appeal cannot be sustained and it
will be refused.
[28] There remains
the question of the appeal against sentence in respect of both charges and the
case will be continued for consideration of those issues.
