Kimberley Mary Hainey V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Mackay of Drumadoon,Lord Clarke |
| Judgment Date | 18 April 2013 |
| Neutral Citation | [2013] HCJAC 47 |
| Date | 18 April 2013 |
| Published date | 18 April 2013 |
| Court | High Court of Justiciary |
| Docket Number | XC42/12 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Clarke Lord Mackay of Drumadoon Lord Drummond Young | [2013] HCJAC 47 Appeal No: XC42/12 OPINION OF THE COURT delivered by LORD CLARKE in APPEAL AGAINST CONVICTION by KIMBERLEY MARY HAINEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Targowski QC, Reilly; Paterson Bell
Respondent: Stewart QC AD; Crown Agent
18 April 2013
[1] On 15 December 2011, the appellant was found guilty, by a majority of the jury, at the High Court in Glasgow of murdering her baby son Declan Hainey. The charge in respect of which the guilty verdict was returned was in the following terms:
"(1) Between 1 September 2008 and 30 March 2010, both days inclusive, the precise dates being to the prosecutor unknown, at 45 Bruce Road, Paisley and elsewhere, having sole custody, charge and care of Declan Hainey, your son, born 17 April 2008, then residing with you at said 45 Bruce Road, you KIMBERLEY MARY HAINEY did, on various occasions wilfully ill-treat and neglect said Declan Hainey, fail to provide him with adequate nourishment and fluids, leave him alone and unattended within said 45 Bruce Road for excessive periods of time and fail to seek to provide medical aid and care for him, and did thereby, and by other means to the prosecutor unknown, cause unnecessary suffering and injury to the health of said Declan Hainey whereby he died and you did murder him."
The charge had originally contained the word "assault" before the words "wilfully ill-treat and neglect", the words "leave him in wet and soiled nappies for excessive periods of time" after the words "within said 45 Bruce Road for excessive periods of time", and "cause him to ingest diamorphine and amphetamine" before the words "and fail to seek to provide medical aid". The words in question were deleted by the advocate depute at the close of the Crown case. On returning a verdict of guilty of murder, in respect of charge 1, the jury deleted the words "cause him to be exposed to diamorphine and amphetamine" which appeared before the words "and fail to seek".
[2] The indictment, in charge 1, also contained an alternative to the charge just referred to, which alternative was, after deletions by the advocate depute at the close of the Crown case, in the following terms:
"Between 1 September 2008 and 30 March 2010, both dates inclusive, at 45 Bruce Road, Paisley and elsewhere, being a person having attained the age of 16 years and who has parental responsibilities in relation to a child or young person under that age or his charge or care of a child or such a young person, namely Declan Hainey, your son born 17 April 2008, then residing with you at said 45 Bruce Road, you KIMBERLEY MARY HAINEY did wilfully ill-treat, neglect, abandon and expose said child in a manner likely to cause him suffering or injury to his health and did fail to provide him with adequate nourishment and fluids, leave him alone and unattended within said 45 Bruce Road for excessive periods of time, cause him to be exposed to diamorphine and amphetamines and fail to seek to provide medical aid and care for him whereby his physical and psychological development were impaired;
CONTRARY to the Children and Young Persons (Scotland) Act 1937, section 12(1) as amended".
There were four other charges originally on the indictment. The second was a charge of attempting to defeat the ends of justice. The appellant was found guilty of that charge. Two charges of offences involving contravention of the Misuse of Drugs Act 1971 were withdrawn from the indictment by the Crown. A further charge of theft was also withdrawn by the Crown. The appellant was found guilty of a sixth charge involving her having failed to comply with a bail condition.
[3] The trial judge, Lord Woolman, sentenced the appellant to life imprisonment in respect of the charge of murder with the punishment part fixed at 15 years. In respect of charge 2, he sentenced the appellant to 7 years' imprisonment which sentence was to run concurrently with the life sentence. The appellant was admonished in respect of the sixth charge.
[4] The appellant now appeals against the conviction for murder. She does so on a number of grounds, the majority of which are based on the absence of proper directions or on misdirections by the trial judge. In the written grounds of appeal, there was a ground relying on article 6 of the ECHR which, in the event, was not argued before the court. Nor was a further ground of appeal to the effect that:
"The Crown having departed from the allegation of assault, there was no relevant charge of murder on which the jury could properly return a verdict"
Although there were no oral submissions advanced in support of that last mentioned ground of appeal, senior counsel for the appellant did not concede that there had been a relevant charge of murder.
[5] As the trial judge informs us in his report to this court, at page 29, para 132 there were two joint minutes of agreement before the trial court. The principal matters of agreement contained in those minutes were as follows:
a. Declan was born on 17 April 2008.
b. The appellant was his biological mother.
c. Declan's body was found in his cot at the flat occupied by the appellant at that time on 30 March 2010.
d. The cause of death given after the post mortem examination was "unascertained".
[6] Much of the evidence at the trial was taken up with the immediate history of the appellant, her conduct, prior to the birth of her son Declan and her behaviour, after the birth, and before the discovery of the dead body of her child. Otherwise a good deal of time was spent, at the trial, with both sides leading expert evidence seeking to assist the court in relation to the question as to whether or not the cause or causes of the child's death could be established. As will be seen at the conclusion of the evidence at the trial, the Crown's case, as presented to the jury, was essentially one of murder having been committed by the appellant by her having failed in certain respects in relation to the proper care of her child. That approach to matters, was of course, also the basis of the alternative charge referred to above under the 1937 Act.
[7] In the recent case of Liehne v Her Majesty's Advocate 2011 SCCR 419, to which we will require to return, the appellant was charged with culpable homicide in respect of the death of her 7 month old daughter. Most of the evidence came from a number of expert medical witnesses led by each side who disagreed with the evidence of the experts led by the other side. Both counsel in their speeches declined to go into the evidence in any detail. In his charge, the presiding judge did not rehearse the evidence, nor make any reference to the development of the relevant medical science, or remind the jury that special caution is needed when expert evidence is fundamental to the prosecution. The court held that, in order to allow the jury to approach their task in a logical and rational way, and so to reach a reasoned verdict, it was incumbent on the trial judge to focus their attention on the natural explanations for the death given by the defence experts which they would have to reject and have a proper basis for rejecting before they could convict. Simply to leave the technical evidence at large for the jury involved misdirection with the result that there had been a miscarriage of justice. The conviction was quashed. It was one of the main features of the submissions made, on behalf of the appellant, in the present appeal, that Lord Woolman, in charging the jury, in this case had been guilty of a misdirection of the kind described and discussed in Liehne.
[8] Before examining that and related submissions made on behalf of the appellant, it is necessary for us to give some more of the details of the case against the appellant.
[9] The evidence was that the appellant had formed a drug habit in or about 1999 which, it was said, had been triggered by the death of a close relative. Her addiction developed over a period of years and by 2007 she had developed mental health problems requiring her to be hospitalised. While in hospital she met and became friendly with another patient, David Gibson. After leaving hospital they formed a relationship. The appellant fell pregnant by Mr Gibson. The couple separated after a period of acrimony and the appellant moved to live with her mother and stepfather. She was then about 3 or 4 months pregnant.
[10] At Christmas 2007, the appellant's mother and stepfather went on holiday and left the appellant in charge of their home. On their return, they found drugs paraphernalia on the kitchen table. They ejected the appellant from their home and the appellant's mother ceased to have contact with the appellant at that stage.
[11] The appellant was provided with accommodation for homeless persons. The appellant's mother was informed by the Social Work Department that the appellant was clean of heroin and able to give birth. The appellant's mother thereupon resumed contact with the appellant.
[12] The appellant gave birth to Declan on 17 April 2008. Although small, Declan was in good health with high Apgar scores. At the date of Declan's birth, the appellant was 32 years of age. She made it clear to family and friends how greatly she valued the birth of her son. She went to stay with the baby at the home of her mother and stepfather.
[13] The evidence at the trial was that the appellant initially came across, as described in the social work records, as "a devoted, attentive and competent mother" and that remained the position for a period of at least 6 months or so after the baby's birth.
[14] In September 2008, the appellant and Declan moved to a flat in Paisley. After this move, the appellant appeared to be less happy. She reduced contact between the baby and her mother and stepfather, giving a variety of explanations for this. After October 2008, the...
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