David Lilburn Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Bracadale,Lord Justice Clerk |
| Neutral Citation | [2015] HCJAC 50 |
| Published date | 17 June 2015 |
| Docket Number | XC652/13 |
| Date | 17 June 2015 |
| Court | High Court of Justiciary |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 50
XC652/13
Lord Justice Clerk
Lady Dorrian
Lord Bracadale
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
following upon a referral from the Scottish Criminal Cases Review Commission
by
DAVID LILBURN
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Jackson QC, CM Mitchell; Paterson Bell (for Messrs Black & Markie, Alloa)
Respondent: Edwards AD; the Crown Agent
17 June 2015
Introduction
[1] The issue is whether a miscarriage of justice has occurred as a result of the appellant’s conviction, at Glasgow High Court on 18 July 2008, for the murder of his wife by stabbing her 86 times on 29 July 2007 at their home in Paisley. The appeal proceeds upon a contention, as set out in the Note of Appeal, that:
“there has been a miscarriage of justice on the basis of fresh evidence that at the relevant time … his responsibility was diminished …
there now exists fresh evidence, namely the opinions of Dr Black, Dr Clark, Dr Pasupuleti, Dr Baird and Dr Bartlett, which are based on observations of the Appellant post conviction as an inpatient in the State Hospital”.
The appellant’s defence at trial had been one of diminished responsibility. However, it is explained that, although the defence expert psychiatrist, namely Dr Sirkanth Nimmagadda, supported such a plea:
“the other medical evidence was such that the Jury rejected the ‘black shadow’ account and may well have formed an adverse view of the Appellant’s credibility and reliability”.
The reference to the black shadow is to an apparition which, the appellant testified, had told him telepathically to kill the deceased.
[2] There had been, the Note of Appeal continues, lay and medical evidence that the appellant had not seemed to be unwell in the hours and days prior to the killing. This would have militated against the acceptance of Dr Nimmagadda’s opinion. If, on the other hand, the jury had heard Dr Baird’s evidence that the appellant can appear well, yet actually be “more unwell”, that would have had a material bearing on the jury’s consideration of the defence. If the jury had heard the evidence of Drs Black, Clark, Bartlett and Pasupuleti, that the black shadow was “potentially an unconscious artefact rather than a fabrication” and that the appellant’s hypomania was sufficient of itself to support the plea, that would have had a material part to play in the jury’s assessment.
[3] What requires to be determined is whether, in terms of section 106(3) of the Criminal Procedure (Scotland) Act 1995: (1) the new psychiatric opinions constitute evidence which was not heard at the trial; (2) there is a reasonable explanation for that evidence not having been so heard; and (3) if it is thus “fresh” evidence, it is of such a kind and quality that the jury would have found it of material assistance in determining the issue of diminished responsibility.
The Crown case at trial
[4] The Crown case can be divided into 5 sections. The first involved the evidence of the appellant’s children; two of whom are doctors. Dr Paul Lilburn testified that the appellant had been diagnosed with a bipolar affective disorder in 2000. He could recognise when the appellant was either manic or depressed. The appellant’s condition had been stabilised by a drug management regime, although there were still periods of mania or depression. Dr Lilburn had been aware of the appellant speaking of a black shadow, although not in recent times.
[5] In June 2007, the appellant had told Dr Lilburn that he was having an affair with LM. The deceased had become aware of the affair and had confronted the appellant. Whereas the deceased had been distressed, the appellant had been “smiling like a Cheshire cat”. The deceased had wanted the marriage to end. She had consulted a lawyer. As at June 2007, the appellant was exhibiting no signs of mental ill health. This view had not been shared by Dr Lilburn’s brother and sister, who considered that the affair might be symptomatic of illness. Because of that, he had taken the appellant to see his general medical practitioner, Dr Niall Cameron, on 25 June 2007. At that time, blood tests showed that the appellant had been taking his lithium as prescribed.
[6] At about 2.00pm on Saturday, 28 July (the day before the killing), Dr Lilburn had spoken to the appellant on the phone, to wish him a happy birthday. He had considered that the appellant was “fine”. The appellant’s mood was normal. There was “absolutely” nothing to suggest any acute presentation. At 2.44am on 29 July, the deceased had sent a text message to her son stating: “Came home at 2.15 to find locked out of house then let in and assaulted”. Dr Lilburn had only noticed the text when he had wakened much later that morning.
[7] Laura Lilburn, the appellant’s daughter, who is now a solicitor, spoke to the appellant having been diagnosed with a bipolar affective disorder; the acute phases of which were very noticeable. She described the appellant’s pride in having an affair. She confronted the appellant on 6 July 2007. The appellant had said that he was “over the moon”. She had returned to her legal studies in Dublin on 25 July, at which time she had considered the appellant to be “fine”; albeit very angry about a letter from the deceased’s solicitors, telling him to leave the matrimonial home. Her final position was that, in the days leading up to the incident, the appellant had been “fine, calm and collected”.
[8] Dr David Lilburn recalled the appellant being diagnosed with a schizoaffective disorder in about 2001. Most people would have been able to identify when the appellant was in a manic or depressive state. The appellant had been reasonably well throughout the two years prior to the incident. Dr Lilburn had had concerns about the appellant’s behaviour in June 2007; particularly the way in which he had been presenting as if in a manic phase. It was because of this, stemming from the affair, that he had gone with his father and brother to the GP, who had concluded that the appellant was “fine”. He had last seen the appellant on 6 July, when he had no concerns about him.
[9] The second chapter of evidence came from those who had seen the appellant in the hours immediately prior to the killing. The first of these was LM. She had gone out for dinner with the appellant on the Saturday, 28 July, at which time he was “fine”. After dinner she had introduced him to her babysitters. He had left her house at about 1.00am. He was still “fine” then; although he had bought a bottle of whisky for the babysitters, which she had thought to be extravagant. The babysitters gave brief evidence that there had been nothing out of the ordinary about the appellant’s behaviour.
[10] The third chapter consisted of the doctors who had treated the appellant prior to the killing. The first of these was Dr Helen Anderson, a consultant psychiatrist at the Royal Alexandria Hospital. She had seen the appellant for about a year in 2003. The appellant had previously been diagnosed with a bipolar affective disorder, although she had instead diagnosed a schizoaffective disorder. The appellant had talked about a malevolent black shadow on a number of occasions. He had felt the presence of the black shadow, no matter what his mood. The references to the black shadow had been made when the appellant had been severely ill. It was this presence which had caused her to alter the diagnosis.
[11] Dr Ian Matson was the consultant psychiatrist who had taken over the treatment of the appellant from Dr Anderson. He had continued to see him until June 2007. The appellant suffered from a bipolar affective disorder. The appellant had spoken to Dr Matson about a black shadow, but this had been reasonably early on in his treatment. It had been present when he had been depressed. Dr Matson had seen the appellant on 20 April and 22 June 2007, at which time there had been “no abnormality in his mental state”. The appellant had been taking his prescribed lithium.
[12] Dr Cameron, the appellant’s GP, spoke to the acuteness of the appellant’s condition between 2002 and 2004. However, from 2005 the appellant had undergone significant improvement and stabilisation. When Dr Cameron had seen him on 25 June 2007, he had found his blood biochemistry to be normal. There had been nothing to make him think that the appellant was unwell.
[13] The fourth chapter was the evidence from police officers about what had happened on the night of the killing. There had been a 999 call, during which the appellant and the deceased could both be heard. The police had arrived at the house shortly after 3.00am on 29 July 2007. At this time the appellant had been calm and reasonably in control. The appellant had told the police officers to go upstairs, where the body of the deceased was found. He had shown no emotion and was staring into space.
[14] The appellant was interviewed. He told the police that, although he suffered from manic depression, this had been controlled by medication. He provided the police with considerable detail about what had happened on the day before the killing, but he stated that he had no recollection of events between returning to the house and the arrival of the police. Although there was reference in the interview to the appellant looking at the ceiling, this had not been explained by him. There was nothing to suggest to the police that the appellant had thought that he was looking at an evil spectre.
[15] The fifth chapter was the evidence from the doctors who saw the appellant after the killing. The first two of these were the police casualty surgeons, Drs Robert Jamieson and Robert Hendry, neither of whom described any signs of mental disturbance. There was no acute psychosis present. Their findings are noted in a report from Dr Baird (infra). Dr Henry had examined the appellant at about 9.20am on 29...
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