Richard Joseph Coubrough's Executrix V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Nimmo Smith,Lord Bonomy |
| Neutral Citation | [2010] HCJAC 32 |
| Date | 01 April 2010 |
| Published date | 01 April 2010 |
| Year | 2010 |
| Court | High Court of Justiciary |
| Docket Number | XC326/07 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Carloway Lord Bonomy Lord Nimmo Smith | [2010] HCJAC 32 Appeal No: XC326/07 OPINION OF THE COURT delivered by LORD CARLOWAY in the reference from the Scottish Criminal Cases Review Commission RICHARD JOSEPH COUBROUGH's EXECUTRIX Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead, MC Mackenzie; Bruce & Co
Respondent: Clancy QC AD, Balfour; the Crown Agent
1 April 2010
1. General
[1] Richard Coubrough (the appellant) was convicted of the murder of Dorothea Meechan at Glasgow High Court on 2 July 1971 and sentenced to life imprisonment. He sought, and on 5 October was refused, leave to appeal; his ground being vaguely stated as "insufficient evidence and misdirection of the jury".
[2] On 13 June 1999, having served 28 years of his sentence, the appellant applied to the Scottish Criminal Cases Review Commission (SCCRC) on a number of grounds. These included a specific complaint ("D") of misdirection by the trial judge on onus and standard of proof. The SCCRC rejected this, concluding that, considering the charge as a whole, "the trial judge's charge is sufficiently clear in terms of direction to the jury on the matters of burden of proof and reasonable doubt". In terms of decisions dated 19 June 2001 and 25 March 2002, the SCCRC declined to refer the case on any of the grounds advanced. However, the SCCRC reconsidered its decision in March 2005. This time they decided to refer the case to the Court on the basis of fresh evidence from a professor of psychology, which was said to show that police evidence of admissions made by the appellant was not credible.
[3] The appeal was the subject of a hearing, which lasted seven days in May 2006 and a further four days in June 2007, when the Court made avizandum. On 27 February 2008, the Court issued an Opinion in which it refused four grounds of appeal (2008 SCCR 317). However, two grounds of appeal (numbers (1) and (2)) had not been dealt with and remained for consideration. On 28 June 2008, the appellant died. On 27 May 2009, the Court allowed the appellant's sister and executrix to continue with the appeal in terms of section 303A of the Criminal Procedure (Scotland) Act 1995. The Court appointed a further four day diet to be fixed in order that the two remaining grounds, neither of which had been the subject of a referral, be heard.
2. The Evidence
[4] The deceased was strangled at about 12.35 am on Sunday, 28 February 1971, in the vicinity of a bridge spanning railway tracks between Clark Street and McClue Avenue, Renfrew. The deceased would have been crossing the bridge alone on her way home to Kirlandneuk Crescent, having attended a family party in Cockles Loan. Witnesses spoke to hearing a scream coming from the bridge, perhaps from under it, at the material time. The naked body of the deceased was found six weeks later, partially buried some distance away along the railway line. Articles of her clothing, notably her underwear and suede boots, had been scattered over a wide area, some of it near the bridge. The articles had been deliberately cut or torn.
[5] The trial judge produced a report setting out the evidence in short compass in response to the original appeal. That evidence consisted of three important strands, although there were other adminicles:
(a) ADMISSIONS TO THE POLICE
[6] On the morning after being arrested and charged (Monday, 19 April 1971), the appellant asked to see the police officer in charge of the inquiry and told him: "I've been thinking it over and just want to say I didn't murder the woman. It was an accident. She screamed" and "I didn't steal the clothing. I panicked and only took them to get rid of them".
(b) IDENTIFICATION BY THREE WITNESSES
[7] Three witnesses, who were crossing the bridge together, identified the appellant as being on the bridge alone at about 12.35 am. At the trial, the deceased denied having been on the bridge at that time, although he did accept he had been close to it, on Kirklandneuk Road where he lived with his sister, at about 11.20 pm. He had then been on his way to a public house managed by his former mistress, MG, at Fulbar Street. He also accepted that he had returned to his sister's house some time after midnight.
[8] The detail of the identifications is of some significance. First, IL, an eighteen year old nursery nurse, spoke to encountering a man who "looked at us and he walked on, and he turned and stared, and he walked on again, and he turned and stared for a couple of minutes". She identified the appellant in the dock, stating that she was sure it was him. She said that the man had been wearing a jacket similar to one proved to belong to the appellant. She had remarked to others on the bridge: "You'd better watch, there is a queer-looking man over there". The witness had also picked out the appellant at an identification parade, although defence counsel established that she had looked at the parade for a long time before she did so. Otherwise, the cross- examination attempted to demonstrate an absence of street lighting on the bridge, something which the witness was able to rebut under reference to photographs.
[9] CM, a seventeen year old male, had met IL at Gilmour Street station in Paisley and had walked with her and her friend KD to Renfrew. He too identified the appellant in the dock as the person whom he had seen on the bridge. He said "when he passed us he was staring at us, and once we had got to the top he was about half way down. He was still staring at us....[W]e walked on and we were walking down the bridge and we looked over and he was standing down at the bottom of the bridge". CM had also picked out the appellant at the identification parade saying "I think it is number 3", although "not really" in doubt about his identification. He confirmed that he was "quite sure" it was the same man, although not "absolutely certain".
[10] KD said that she had seen the person, who she thought was the appellant in the dock, on the bridge. She had turned round to look at the man when IL had told her that he was staring at them. She had also identified the appellant at the identification parade, in that she thought it was the man but, as she said in evidence, she was not sure. The cross examination of KD consisted of one question, which was assented to, that she could be mistaken in her identification.
(c) CUTTING OF THE CLOTHING
[11] The appellant had appeared on another charge; that of assaulting and raping MP on 9 April 1971 in Gourock and maliciously cutting and damaging her clothing. He had moved out of Renfrew shortly after the murder and taken up with MP. He had admitted cutting up the clothing and was found guilty of that and of assaulting (but not raping) MP. The trial judge refers to "a peculiar similarity between the deliberate cutting of some articles of the deceased's clothing and the cutting of some of Mrs [P's] clothes". The precise nature of the similarity was not explored.
[12] The trial judge made the following comment in his report to the appeal court:
"The value of the evidence of the young people who saw [the appellant] on the footbridge and identified him in Court was for the jury to assess. The crucial matters were the statements made to the police".
He had directed the jury that they could not accept the statements unless they were voluntarily made, not made in reply to questions and were made in circumstances which were fair to the appellant.
3. The Charge and the Grounds of Appeal
[13] The two remaining grounds of appeal complain of misdirection of the jury. It is important to note that the Court does not have the trial judge's comments on these grounds. When preparing his report on the original appeal, the judge had, quite appropriately, stated:
"With regards to the allegation of mis-direction of the jury I am not in a position to comment as I have no information as where [sic] it is said I went wrong".
Now, almost forty years later, the Court is examining specific complaints of misdirection; but it is doing so in the absence of the trial judge's views, which might have thrown much light on the situation. It is also carrying out this examination without knowing what counsel had said to the jury about the issues in the case, which might have put the judge's charge into its proper context.
[14] The first ground is as follows:
"1. Directions as to evidence of the appellant
1.1 The trial judge erred in directing the jury:
(i) that it should disregard the evidence of the appellant if they did not believe him... ; and
(ii) that the appellant required to prove his denial of the charges on the balance of probabilities...
1.2 The effect of the latter direction was to impose an onus on the appellant to prove, on the balance of probabilities, that he had not committed the offences charged. Such a direction was incompatible with the presumption of innocence enshrined in the common law.
1.3 The trial judge ought to have directed the jury that they should acquit the appellant if his evidence raised a reasonable doubt. Furthermore, the trial judge ought to have directed the jury that there was no standard to which the appellant was required to prove his denial of the charges."
The particular directions on onus were as follows:
"There are certain general rules of law, as counsel on both sides have pointed out, which you must observe. The first is that the onus rests on the Crown throughout the case to prove the guilt of the accused. He starts with a presumption of innocence and that persists until it is displaced by proof of guilt. The standard which the Crown must attain is proof beyond reasonable doubt, and reasonable doubt means, as I think the Advocate Depute pointed out, that standard which you would apply in considering important matters in your own lives... Reasonable just means reasonable - within reason. It is not every doubt. On the other hand, if there is some doubt in...
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