Daniel Mcneil Mcgill Adam V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Macfadyen,Lord Penrose |
| Neutral Citation | [2006] HCJA 41 |
| Court | High Court of Justiciary |
| Date | 30 May 2006 |
| Docket Number | XC787/03 |
| Published date | 30 May 2006 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Macfadyen Lord Penrose | [2006] HCJA 41 Appeal No: XC787/03 OPINION OF THE LORD JUSTICE CLERK in NOTE OF APPEAL AGAINST CONVICTION by DANIEL McNEIL McGILL ADAM, otherwise known as DANIEL McNEIL ADAMS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the appellant: Shead; Miss Mitchell; Jim Friel & Co, Glasgow
For the Crown: Mitchell, AD; Crown Agent
30 May 2006
Introduction
[1] The appellant was tried before Lady Paton and a jury at Glasgow High Court in 2002 on inter alia the following charges:
"(1) between 22 September 1999 and 26 September 1999, both dates inclusive, at Glasgow Green at The Albert Bridge on the River Clyde, Glasgow, you did assault Thomas Morgan ... and push him into the River Clyde whereby said Thomas Morgan drowned and you did murder him; ...
(3) having committed the crime libelled in charge (1) hereof, namely murder, and knowing or believing that John Houston Sinnamon ... would be a witness in any trial at the High Court of Justiciary against you in connection therewith, on 8 October 1999 at Glasgow Green at the Weir at The Albert Bridge on the River Clyde, Glasgow, you did assault him and push him into the River Clyde whereby said John Houston Sinnamon drowned and you did murder him."
On charge (1) the appellant lodged a special defence of alibi and a special defence of incrimination in which he incriminated Alexander Smith. On charge (3) he lodged a special defence of incrimination in which he incriminated Bernadette Heron. On both charges he lodged a special defence of insanity at the time of the offence.
The locus
[2] At its north end, the Albert Bridge leads into Saltmarket. Immediately on the west side of Saltmarket is Glasgow High Court, facing which on the north bank of the Clyde is Glasgow Green. The Clyde Weir referred to in charge (3) is immediately to the east of the bridge. The locus can be seen from the east side of the bridge, from the riverside part of Glasgow Green and from the High Court.
[3] There was evidence about the physical features of the locus from police officers and eye-witnesses, and from scene of crime and aerial photographs. The trial judge reports that the jury were well informed by a considerable body of evidence about the layout and physical characteristics of the relevant locations.
[4] The trial judge told the jury, probably on the first day, not to carry out any individual investigations, such as inspections of the locus, and emphasised that they should concentrate on the evidence led in court.
The case against the appellant
[5] The appellant had a history of mental illness and alcoholism. He lived in the Bellgrove Hotel, a hostel in the east end of Glasgow. One of the other residents was Thomas Morgan, for whom the appellant had conceived an enmity. On the date libelled in charge (1) he persuaded Morgan to join him for a drinking session at the locus. He then pushed Morgan into the river and watched as he drowned. A fellow drinker, Gerald Ellis, said that the appellant and Morgan went down to the river bank, but only the appellant came back. Morgan's body was found four days later. Meanwhile, the appellant told his community mental health worker what he had done and gave him a graphic description of Morgan's drowning. Over the next few days he confessed to two others, one of whom was a member of staff of Loretto House, a nearby hostel.
[6] John Sinnamon was a resident of Loretto House. He said repeatedly that the appellant had been responsible for Morgan's death. On the date libelled in charge (3) the appellant persuaded Sinnamon to join him along with Bernadette Heron and her boyfriend James Bonnar, both hostel residents, for a drinking session at the locus. He repeatedly accused Sinnamon of being a "grass" and threatened that he would not be at court to tell anything. While the group were drinking on the river bank beside the weir, Bernadette Heron went behind a stone pillar to relieve herself. James Bonnar screened her with his jacket. The appellant was again heard to say that Sinnamon would not be at the High Court to give evidence against him. He then pushed Sinnamon into the river. Bernadette Heron and James Bonnar came round from behind the pillar. They found the appellant standing alone. He had watched Sinnamon drown. He told them that he had thrown Sinnamon in. He threatened both of them not to say anything. At Sinnamon's funeral he told Bernadette Heron to keep quiet about what had happened.
[7] There was plainly a sufficiency of evidence against the appellant on both charges. Much of the trial was taken up by the evidence of six psychiatrists led by the Crown as to the appellant's mental state. The appellant did not give evidence and no evidence was led on his behalf.
The trial judge's charge
[8] In the course of her charge the trial judge said:
"Don't speculate about matters about which no evidence has been led. You must base your verdicts solely upon the evidence which you have heard in the course of the trial, and remember, as counsel have already pointed out to you, it is your memory of the evidence which counts."
The jury's deliberations and verdict
[9] The jury were sent out on 1 June 2002. They were unable to reach verdicts by the end of that day. At 5.04 pm the trial judge called them back. She said that if they felt that it was likely that they would reach a verdict within the next hour or so, they should return to the jury room and continue their deliberations. She then said
"On the other hand, if you now feel that you would probably require longer than about an hour in order to arrive at your verdict, I would propose that you should stop your deliberations either immediately or within a very short period of time and proceed under the charge of Court officials to a hotel where overnight accommodation is available for you, and you would continue to be secluded, and tomorrow morning you would be brought back here and you would then be asked to return to the jury room and continue with your deliberations."
The jury returned at 5.46 pm. The trial judge said to them
"Well, ladies and gentlemen, I understand that you have indicated to my Clerk that you need some more time, so I suggest to you that you stop your deliberations now, and arrangements have been made for overnight accommodation. Now, you don't have to continue your deliberations overnight. In fact, I would advise you to forget about the case overnight until tomorrow morning, when you will be brought back to Court, and my Clerk here will assist you with the practical arrangements. So we will adjourn now and re-convene tomorrow, but my Clerk will help you with all the arrangements. The Court will now adjourn.
The jury were accommodated overnight in a hotel. On the following morning when the clerk called the diet, the trial judge said
" ... All that I do at this stage is invite you to return to your jury room and consider the case again, continue your deliberations. So that is what you do at this stage. There is no pressure of time again, ladies and gentlemen."
The jury thereafter convicted the appellant by a majority of culpable homicide on both charges. Although it is possible that the decision on each charge lay between conviction and acquittal, it seems more likely that it lay between a conviction for murder and a conviction for culpable homicide.
Mrs N's affidavit
[10] It later came to the notice of the appellant's solicitors that one of the jurors, Mrs N, was concerned by certain aspects of the trial. According to Mrs N's affidavit, Bernadette Heron and James Bonnar said in evidence that while Bernadette Heron was relieving herself they could not see what happened. Mrs N refers to a discussion about this among the jurors at some unspecified point during the trial. She describes the discussion as follows
"11 I said that I did not really believe that this woman was the type of
person who would want to have somebody screening her, she would have just relieved herself. Round about was all bushes so there was no need for anybody to have screened her and I did not believe this part of the evidence.
12 One of the other members of the jury disagreed with me and he said
that he had visited the location and there was a pathway and that when you looked down from the pathway you could see the crime scene. He indicated the area was quite open. His point was that the man would have had to screen her otherwise she would have been seen.
13 The general reaction amongst other members of the jury was that, 'You
shouldn't have been there' directed towards this other juror because we had been instructed specifically not to go to the crime scene. His reaction to this was, 'That's where I stay, I pass that way every night'. I got the impression that he actually went home that way but he had taken a wee detour to have a look because this was involved in this case."
[11] Mrs N says that when the jury went to the hotel, she mentioned these misgivings to the clerk of court. The clerk said that juries were to find a common ground and that they had to try to reach a verdict together. He suggested that she should enquire what the other jurors thought and, if there was a general opinion that this had influenced the verdict, it would be up to the foreman to make representations on the matter to the court. She says that she spoke to the foreman in accordance with the clerk's advice and that the matter was resolved within the jury room.
Grounds of appeal
[12] We have refused this appeal so far as it is based on a misdirection point (Adam v HM Adv, 2005 SCCR 479). We now have to decide it on the remaining grounds, namely that the verdict is invalidated (a) because one of the jurors inspected the locus contrary to the trial judge's instructions; and (b) because the clerk had a conversation with Mrs N after the jury were secluded.
The remit to Lord Macphail
[13] We remitted to Lord...
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