Appeal Against Conviction By Ian Geddes Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Drummond Young,Lord Justice Clerk |
| Judgment Date | 13 February 2015 |
| Neutral Citation | [2015] HCJAC 10 |
| Date | 13 February 2015 |
| Court | High Court of Justiciary |
| Published date | 13 February 2015 |
| Docket Number | XC441/13 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Justice Clerk Lord Brodie Lord Drummond Young
| [2015] HCJAC 10 XC441/13
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
IAN GEDDES Appellant;
against
HER MAJESTY’S ADVOCATE Respondent:
_____________ |
Act: J Scott QC (sol adv), JP Mowberry (solicitor advocate); Capital Defence (for Bridge Litigation, Glasgow)
Alt: A F Stewart QC AD; the Crown Agent
13 February 2015
Introduction
[1] On 12 June 2013, after a trial which lasted 6 weeks at the High Court at Edinburgh, the appellant was convicted for the second time of the murder of Charles McKay on 18 and 19 March 2003 at 23 East MacKenzie Park, Inverness, by forcing his head into a pillow and smothering him whilst intoxicated with alcohol and medication. He was also convicted of attempting to defeat the ends of justice by placing the body of the deceased at the bottom of a flight of stairs, pretending to the emergency services that he had returned to the house and found the body there and disposing of the pillow. The central issue at the trial had been whether the deceased had been killed by smothering, as distinct from, for example, accidentally falling down stairs or succumbing to the effects of ingesting a combination of excessive quantities of alcohol and prescribed drugs.
[2] The appellant had previously been found guilty of the same offences on 11 March 2005, when he was also convicted of: (a) defrauding the deceased of substantial sums of money over the 9 months or thereby prior to his death; and (b) attempting a further fraud in connection with a purported will created in the deceased’s name. He had appealed against the convictions for murder and the ends of justice offence on grounds primarily concerned with the discovery of evidence which had not been available at the trial (Criminal Procedure (Scotland) Act 1995, s 106(3)(a) (3A and C)). The new evidence was neuropathological; Dr Safa Al-Sarraj having expressed an opinion, which was different from that given at the trial by another neuropathologist, that the deceased had suffered a moderate (rather than a mild) head injury which, in contrast to smothering, might have caused his death. This had prompted the appellant’s expert forensic pathologist, 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 Advocate 2011 SC (UKSC) 113 (Lord Hope at paras 37 and 43), quashed the conviction and authorised a re-trial. In addition to the new neuropathology, the court heard evidence from the doctors who had expressed their views at the original trial diet. However, the court did not attempt to reach a concluded view on the impact of the new evidence on the testimony which had been given at the trial and thus, applying their judicial experience, on whether a miscarriage of justice had in fact occurred. It did not consider that this was the role of the appellate court. It was sufficient, in the court’s view (Lord Emslie, delivering the opinion of the court, at para [15]), for the appellate court to take only a “small step” by holding that there was a real possibility of the jury having returned a different verdict, had it heard the new evidence. The existence of that possibility was sufficient to overturn the jury’s verdict. Such an approach runs contrary to the test for a miscarriage of justice in non-Convention appeals emphasised subsequently in Brodie v HM Advocate 2013 JC 142, LJG (Gill) at paras [34] et seq.). That test is whether, taking “an overall view of the circumstances”, a miscarriage of justice can be seen to have occurred (ibid para [42]).
[4] The present appeal is based upon a contention, under section 106(3)(b) of the 1995 Act, that the verdict was one which “no reasonable jury, properly directed, could have returned”. The approach to this specific ground, within the overall context of miscarriage of justice, is well settled. It is an objective exercise in which, for an appellant to succeed, the court must be able to hold “that no reasonable jury could have returned a guilty verdict on the evidence before them (King v HM Advocate 1999 JC 226, LJG (Rodger), delivering the opinion of the court, at 228). The court has to “assess the reasonableness of the verdict with the benefit of its collective knowledge and experience” (AJE v HM Advocate 2002 JC 215, LJC (Gill) at para [30], followed in Gage v HM Advocate 2012 JC 319, LJG (Hamilton), delivering the opinion of the Full Bench, at para [29]). It is only in the “most exceptional of circumstances that an appeal on this ground will succeed” (Harris v HM Advocate 2012 SCCR 234, Lord Bonomy, delivering the opinion of the court, at para [67]).
[5] One reason for the test being set at so high a level is that there will often be, as there was in the present case, an acceptance that there was a legal sufficiency of evidence against the accused. The argument will accordingly often boil down to one which seeks to persuade the court that the jury could not reasonably have accepted the testimony of a particular witness or witnesses, or part of it, as credible and reliable. Since that is traditionally primarily the province of the jury to assess (ibid), it will only be in rare cases that the court will be persuaded that no reasonable jury, properly directed, could have accepted the testimony in question; even if, in the modern era, it remains important not to “interpret section 106(3)(b) out of existence by excessive deference to the judgment of the jury” (AJE (supra) LJC (Gill) at para [35]). Nevertheless, the task facing this appellant can be seen as a daunting one, given that there have been two successive guilty verdicts against him from quite differently constituted juries.
[6] This appeal is thus about whether what the second jury did, in returning verdicts of guilty, was something which no reasonable jury could have done. That issue involves a consideration of the whole evidence at the trial. In that connection, there were two quite different categories of testimony: (1) lay evidence of what had happened prior to, at and after the time of death; and (2) detailed medical evidence about the cause of death. Any analysis of the reasonableness of the verdict is bound to involve a consideration of the way in which these two different categories interlinked in providing the jury with appropriate material on which to base their verdicts.
The Evidence
Financial frauds
[7] The deceased was aged only 48 when he met his death on 18 or 19 March 2003. He had worked offshore as an electrical engineer, having been given a permanent post in July 2002. Notwithstanding the steadiness of his employment, when he was onshore he tended to drink heavily. He lived in East MacKenzie Park, Inverness, which had been his former matrimonial home in which, prior to his separation in 1992, he had lived with his wife and two daughters. He had recently inherited his mother’s house in Charleston View. She had died on 1 June 2002 and had left the house to the deceased, as distinct from his siblings, apparently because he was said to have provided the money for its purchase from the local authority.
[8] The medical records of the deceased dating from 1981 were examined for entries relating to his drinking and mental health. These indicated that he had a long term alcohol problem. During the 1990s and 2000s, he had visited his general medical practitioner in relation to excessive alcohol consumption. In 1993 he had been prescribed a low dosage of anti‒depressants. In 2000 there was some concern amongst his friends that he had been talking about suicide, but, according to his regular GP, whom he attended with reasonable regularity, no real suicidal ideation or intent was present then or subsequently. He was examined for possible testicular cancer in October 2002, but in November he had been given the all clear. An entry dated 13 December 2002 noted that he had been drinking heavily since the death of his mother. He was signed off work because of viral illness until 23 January 2003 and failed to return to offshore duties thereafter because of continuing difficulties. He had significant problems with his hip and had been prescribed painkillers in the form of co‒drydamol tablets.
[9] One important feature of the deceased’s character was his attitude to debt. He was said by his family never to have been in debt. He used debit cards and an American Express charge card, but he did not believe in using credit cards. Another significant aspect of the deceased’s life was his lack of computing skills. Although he had bought a computer, which he kept at home, he required the help of others to use it.
[10] The deceased and the appellant were cousins. The appellant, who also drank heavily, had rekindled his childhood friendship with the deceased in the Summer of 2002. In due course, the Crown were to argue that this had been a deliberate ploy on the appellant’s part, prompted by his contrasting financial position. The appellant had been sequestrated on 4 December 2001. He was not employed. There were consequent difficulties for him in obtaining any form of credit.
[11] The appellant was allowed to move into the house at Charleston View. He began perpetrating a series of simple but lucrative frauds upon the deceased; normally by opening a credit account for his own use in the deceased’s name and forging direct debit instructions. The direct debits enabled him to syphon money from the deceased’s bank account to pay for sums incurred by his use of the new accounts.
[12] The appellant’s fraudulent conduct was described by the trial advocate depute as plumbing “the depths of deception and betrayal”. It had started as...
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