Ian Geddes Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Emslie,Lord Mackay of Drumadoon |
| Neutral Citation | [2012] HCJAC 8 |
| Published date | 18 February 2015 |
| Docket Number | XC225/05 |
| Date | 25 January 2012 |
| Court | High Court of Justiciary |
| Year | 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Eassie Lord Mackay of Drumadoon Lord Emslie
| [2012] HCJAC 8 Appeal No: XC225/05
OPINION OF THE COURT
delivered by LORD EMSLIE
in
APPEAL AGAINST CONVICTION
by
IAN GEDDES Appellant;
against
HER MAJESTY’S ADVOCATE Respondent:
_______
|
Appellant: Burns QC, et Wilson; JP Mowberry, Glasgow
Respondent: P Ferguson QC, AD; Crown Agent
25 January 2012
Introduction
[1] On 11 March 2005, after a six-week trial at the High Court in Edinburgh, the appellant was convicted of multiple charges arising out of or in connection with the death of his cousin Charles McKay. These included a murder charge (charge 11), on which the jury by a majority returned a guilty verdict in these terms:
“… on 18 and 19 March 2003 at 23 East MacKenzie Park, Inverness, you did assault Charles Walter McQuarrie McKay, formerly residing there, and whilst he was intoxicated with alcohol and … medication did force his head into a pillow, smother him and did murder him”.
In addition, the appellant was convicted of (i) defrauding the deceased of substantial sums of money over the preceding nine months or so (charges 1, 3, 5, 6 and 8); (ii) attempted fraud in connection with a purported will recently created in the deceased’s name (charge 10); (iii) credit offences contrary to the Bankruptcy (Scotland) Act 1985, section 67(9) (charges 2 and 7); and (iv) in various ways attempting to defeat the ends of justice following the death of the deceased, notably by moving the body and disposing of the pillow said to have been used (charge 12).
[2] As confirmed by senior counsel at the outset of his submissions, the present appeal was limited to the appellant’s conviction for murder (charge 11) and consequentially for attempting to defeat the ends of justice (charge 12). However, although the court was not being invited to quash any of the other charges, their potential impact on the murder conviction might still be a relevant consideration. From the outset, this was a complex and highly unusual case. Where the deceased had been found dead, with overt facial injuries, at the bottom of a flight of stairs in his home, an inference of head injury might not have seemed unreasonable. In addition, extraordinarily high levels of alcohol and dihydrocodeine in his system might of themselves have been fatal in another individual. Yet it took many months for a post-mortem report to be issued, and thereafter the Crown advanced the charge of murder by inter alia smothering although the pillow in question was never traced. To a material extent that charge depended on the Crown being able to exclude head injury or any other ready explanation for the deceased’s death.
[3] Under grounds of appeal 1 and 2, the primary focus of the appeal was on the existence of fresh evidence not heard at the original trial. There was, it was said, a reasonable explanation for that state of affairs, pursuant to section 106(3)(a), (3A) and (3C) of the Criminal Procedure (Scotland) Act 1995, and if the evidence in question had been available in 2005 there was every prospect that the jury would have returned a different verdict. In particular the appellant relied on expert neuropathology evidence from a Dr Safa Al-Sarraj which, for the first time, offered moderate head injury as a positive contributing cause of the deceased’s death — that is, as a direct alternative to smothering. In addition, reliance was placed on the consequent ability of Dr Marjorie Turner (formerly Black) who, as a forensic pathologist, had given expert evidence for the defence at the trial, to change her opinion as to cause of death from “unascertained” to “head injury (in keeping with fall) and dihydrocodeine and alcohol intoxication, with potential contributory cause fatty change of the liver”. At the time of the trial, by contrast, the Crown neuropathologist Dr James Mackenzie had effectively discounted head injury as having any bearing on the death of the deceased; Dr David Doyle, the neuropathologist properly instructed by the defence, had (mistakenly, as it turned out) attributed death to cervical spinal trauma, thus distracting his own attention from head injury; and in these circumstances Dr Black (as she then was) had been disabled from expressing the positive exculpatory opinion as to cause of death which she now held.
[4] The appellant’s subsidiary grounds of appeal respectively alleged (ground 4) a failure by the defence solicitor, contrary to instructions, to engage a fingerprint expert where certain key documents relative to the fraud charges bore unidentified finger and palm imprints which might have belonged to the deceased; and (ground 6) the inadmissibility of a purported witness statement taken from the appellant by police officers on 22 March 2003 when (i) he was already a suspect; (ii) being within the confines of a police station, he felt under compulsion to respond; (iii) he was given no prior opportunity to consult a solicitor; and (iv) no caution was administered before questions were asked. As we understood the position, grounds of appeal 3 and 5 were no longer advanced.
Grounds 1 and 2: Fresh evidence
(a) Legal background
[5] So far as relevant for present purposes, section 106 of the 1995 Act provides as follows:
“…
(3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on —
(a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings …
(3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard.
…
(3C) Without prejudice to subsection (3A) above, where evidence such as is mentioned in paragraph (a) of subsection (3) above is evidence —
-
which is —
- from a person … who gave evidence at the original proceedings;and
(b) which is different from, or additional to, the evidence so given,
it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence.
(3D) For the purposes of subsection (3C) above, ‘independent evidence’ means evidence which —
- was not heard at the original proceedings;
- is from a source independent of the person referred to in subsection (3C) above;and
(c) is accepted by the court as being credible and reliable.”
[6] In Campbell & Steele v HM Advocate 1998 JC 130, this court stressed the necessity for a reasonable explanation to justify any admission of fresh evidence, and in Al Megrahi v HM Advocate 2002 JC 99 the Lord Justice General (at para.219) made it clear that even where fresh evidence is admitted the verdict of a jury should not lightly be disturbed. In that latter context, the decision of the Supreme Court in Fraser v HM Advocate 2011 SLT 515 was strongly to the effect that in “fresh evidence” as well as “non-disclosure” cases, the test for a miscarriage of justice should be whether, had the relevant new material been available at the trial, there was a real possibility that the jury would have arrived at a different verdict. This test was previously affirmed by the Supreme Court in McInnes v HM Advocate 2010 SLT 266, a non-disclosure appeal, especially in the judgment of Lord Hope at paras. 20 and 24.
(b) The evidential hearing
[7] In the course of this appeal we heard evidence from a number of witnesses. Dr Al-Sarraj, an experienced consultant neuropathologist, confirmed how axonal injury within the brain was detectable with the aid of immunocytochemical techniques. In particular, the presence of beta amyloid precursor protein (“bAPP”), a substance...
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Appeal Against Conviction By Ian Geddes Against Her Majesty's Advocate
...Dr Marjorie Turner, to alter her view on the cause of death from “unascertained” to, inter alia, “head injury…”. [3] The court ([2012] HCJAC 8) applied the McInnes test (McInnes v HM Advocate 2010 SC (UKSC) 28, Lord Hope at paras 20 and 24), following the views expressed in Fraser v HM Advo......
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Case commentaries
...was made in a 2012 appeal from Ian Geddes’s2005 conviction for the murder of his cousin, Charles McKay. In Geddes vHer Majesty’s Advocate[2012] HCJAC 8, the High Court of Justiciary allowed the appeal because of fresh evidence from a neu-ropathologist (derived in part from processes validat......