Elliott v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 24 March 1995 |
| Docket Number | No 17 |
| Date | 24 March 1995 |
| Court | High Court of Justiciary |
Full Bench
LJ-C Ross, Lords McCluskey, Morison, Morton of Shuna, Cowie
Procedure—Solemn procedure—Appeal—Evidence—Additional evidence—Appellant convicted of murder—Defence of diminished responsibility investigated but not advanced at trial—Whether competent for appellant to lead evidence of diminished responsibility in appeal—Evidence that appellant was acutely emotionally distressed at time of offence but not suffering from mental disorder or illess—Whether evidence admissible in appeal if reasonable excuse for non-production at trial—Whether evidence not reasonably available at trial—Whether miscarriage of justice—Criminal Procedure (Scotland) Act 1975 (cap 21), secs 228(2) and 252(b)1
Procedure—Solemn procedure—Appeal—Appeal court decision contrary to earlier decision of bench of equal number—Judicial precedent—Whether case ought to have been remitted to larger court
Section 228(2) of the Criminal Procedure (Scotland) Act 1975 enacts that a person convicted on an indictment may bring under review of the High Court “any alleged miscarriage of justice in the proceedings in which he was convicted, including any alleged miscarriage of justice on the basis of the existence and significance of additional evidence which was not heard at the trial and which was not available and could not reasonably have been made available at the trial”. Section 252(b) enacts that for the purposes of such an appeal the High Court may hear any additional evidence relevant to any alleged miscarriage of justice.
The appellant was convicted of murder in the High Court. He had led a defence of provocation. Prior to the trial his advisers had obtained a report from his doctor in respect of his mental state and from a consultant psychiatrist. Those reports showed that the appellant had suffered from no mental disorder, illness or handicap but that he was chronically taunted for several months by the deceased and that that might have had some relevance to provocation. The matter was not raised at the trial. After conviction a further consultant psychiatrist found the appellant not to be suffering from any major mental illness but that the death of the deceased had occurred against a background of greater emotional stress for the appellant and that, for that reason, the appellant's state of mind was bordering on, although not amounting to, insanity. The appellant appealed and contended that those reports showed that additional evidence had come to light after the trial which could not
reasonably have been available at the trial and that there was a reasonable excuse for non-production of the earlier medical evidence at trial.Held (by a court of five judges) (1) that Parliament, in enacting sec 228(2) of the 1975 Act, had intended to impose some restriction upon the leading of additional evidence which had not been heard at the trial and which was to be adduced and that that restriction was found in the second part of sec 228(2) which constituted a requirement which had to be satisfied before the court could hear additional evidence so that such evidence could only be adduced if it were evidence which was not available and could not have been reasonably made available at the trial; (2) that sec 252(b) conferred upon the High Court power to hear additional evidence only in any appeal which had been brought within the terms of sec 228(2); (3) that the proposed evidence was not evidence which was not reasonably available at the trial and could not reasonably have been made available at the trial, since the possible defence of diminished responsibility had been considered prior to trial; and appeal refused.
Church v HM Advocate 1995 SLT 604 overruled;Cameron v HM AdvocateSC1991 JC 251;Salusbury-Hughes v HM AdvocateUNK 1987 SCCR 38applied.
Opinion that, in any event, the proposed evidence could not support a plea of diminished responsibility.
Observed per the Lord Justice-Clerk (Ross), that as the court in Church v HM Advocate 1995 SLT 604 had been disagreeing with the law as laid down in a number of cases in which the judges were of equal number, it should have remitted the case to a bench of five judges instead of deciding the case itself.
Observed (per Lord McCluskey) that the second part of sec 228(2) had been intended to provide a route—but the only route—by which the High Court could take note of an alleged miscarriage of justice said to derive from the existence of evidence not heard at the trial.
Angus Gordon Elliott was charged at the instance of the Rt Hon the Lord Rodger of Earlsferry, QC, Her Majesty's Advocate, on an indictment, the libel of which set forth, inter alia,that:“(1) On 14 November 1993 at the house at 39 Clepington Court, Dundee you did assault Irene Martin, residing there, repeatedly stab and cut her on the head and body with a knife and did murder her.”
The cause came to trial before Lord Sutherland and a jury in the High Court of Justiciary at Kirkcaldy between the dates of 9 and 15 March 1994. On 15 March 1994, the jury returned a verdict of guilty as libelled and the pannel appealed to the High Court of Justiciary against conviction. The grounds of appeal are adequately set forth in the opinion of the Lord Justice-Clerk (Ross).
Cases referred to:
Beattie v HM AdvocateUNK 1995 SCCR 93
Boyle v HM AdvocateSC 1976 JC 32
Brodie v HM AdvocateUNK 1993 SCCR 371
Cameron v HM AdvocateUNK 1987 SCCR 608
Church v HM Advocate 1995 SLT 604
Connelly v HM AdvocateUNK 1990 SCCR 504
Gallacher v HM AdvocateSC 1951 JC 38
Green v HM AdvocateUNK 1983 SCCR 42
Higgins v HM AdvocateSC 1956 JC 69
McAvoy v Cameron 1917 JC 1
McCormack v HM Advocate 1993 SLT 1158
McLay v HM Advocate 1994 SLT 873
Martindale v HM AdvocateUNK 1992 SCCR 700
Mitchell v HM AdvocateUNK 1989 SCCR 502
R v BeresfordUNK (1971) 56 Cr App R 143
R v Secretary of State for the Home Department ex p Crew [1982] 1 mr AR 94
Ralton v HM Advocate 1994 SLT 321
Ritchie v PirieSC 1972 JC 7
Salusbury-Hughes v HM AdvocateUNK 1987 SCCR 38
Slater v HM Advocate 1928 JC 94
Williamson v HM AdvocateUNK 1988 SCCR 56
Williamson v HM AdvocateUNK 1994 SCCR 358
Textbooks referred to:
Bennion, Statutory Interpretation (2nd edn), p 876
Craies, Statute Law (7th edn), p 91
Maxwell, Interpretation of Statutes (12th edn), p 36
Stair Memorial Encyclopaedia , vol 22, para 308
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Ross), Lord McCluskey and Lord Morison for a hearing on 17 February 1995. Eo die their Lordships remitted the cause to a bench of five Lords Commissioners of Justiciary.
The cause thereafter called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Ross), Lord McCluskey, Lord Morison, Lord Morton of Shuna and Lord Cowie for a hearing on 16 March 1995.Eo die their Lordships made avizandum.
At advising, on 24 March 1995, —
LORD JUSTICE-CLERK (Ross)—The appellant is Angus Gordon Elliott, who was found guilty on 15 March 1994 in the High Court at Kirkcaldy of charges (1) and (2) on an indictment. Charge (1) was a charge of murder, and charge (2) was a charge of fire-raising and attempt to defeat the ends of justice. He was sentenced to life imprisonment on charge (1) and to imprisonment for a period of five years on charge (2). The appellant appealed against conviction.
In a note of appeal dated 12 May 1994 the following ground of appeal was stated: “I accepted and accept that I took the life of Irene Martin. My state of mind at the time was diminished to such an extent that I was not responsible for my actions and should not have been convicted of her murder.”
Following upon the lodging of that note of appeal, the trial judge furnished a report in terms of sec 236A of the Criminal Procedure (Scotland) Act 1975. In that report the trial judge summarised the evidence as follows: “The victim, who was a police officer, was the girlfriend of the appellant. Their relationship was not straightforward, particularly as the appellant was still seeing a former girlfriend. The deceased had moved out of the appellant's house and bought her own house in Dundee. They had arranged to go on holiday together to Cyprus and were due to leave on the early morning of Sunday, 14 November 1993. The appellant spent Saturday night at the deceased's flat. Between 3 and 4 am neighbours heard raised voices, screams and banging noises, which went on for about two minutes. Shortly after 4 am another neighbour was returning home and noticed smoke in the corridor. She phoned the fire brigade, who attended along with the police. The door of the deceased's flat was broken in and a small fire was extinguished. Examination showed that there had been five separate seats of fire. One of these was in the main bedroom where the body of the deceased was found, partially burnt. At post-mortem examination the deceased was found to have sustained 30 separate knife wounds. Some of these appeared to be defence wounds and some on the chest were superficial. There were five major wounds to the head and neck. The head wound was a stab entering the temple and penetrating the brain, the force required being sufficient to cause a piece of the tip of the knife to break off and become lodged in the brain. The pathologist's view was that this would cause extreme pain and cause the deceased to fall to the ground. There were four wounds closely grouped to the side of the neck, penetrating vital organs, and these were the fatal wounds. The pathologist's view was that these were caused after the deceased had fallen to the floor and was lying there when stabbed. The appellant was next seen by police officers when he was driving back towards the deceased's flat. When stopped by the police he said that he was coming to pick up his girlfriend to go on holiday. He was calm and showed no emotion. He was taken to the police office where he was told of the death of the deceased and again he showed...
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