Ashok Kalyanjee V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Justice Clerk,Lady Dorrian |
| Judgment Date | 23 May 2014 |
| Neutral Citation | [2014] HCJAC 44 |
| Docket Number | XC726/12 |
| Published date | 23 May 2014 |
| Court | High Court of Justiciary |
| Date | 23 May 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lady Paton Lady Dorrian | [2014] HCJAC 44 XC726/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the appeal against conviction following upon a reference from the Scottish Criminal Cases Review Commission ASHOK KALYANJEE, Appellant; against HER MAJESTY'S ADVOCATE, Respondent: _______________ |
Respondent: Wade QC AD; the Crown Agent
23 May 2014
Preface
[1] This case raises an issue about the proper test to be applied, within the overall statutory context of miscarriage of justice (Criminal Procedure (Scotland) Act 1995 s 106(3)), in appeals against a conviction which has followed upon a plea of guilty. It is important to observe, in this context, that the powers of the court in a solemn appeal, which are wholly statutory in origin, allow the court either to affirm or to set aside a "verdict" and quash the conviction (ibid s 118(1)). Where a person has pleaded guilty, there is no verdict. This appeal is based upon what is said to be "fresh evidence". The statutory provisions specific to this category of appeal (ibid s 106(3) and (3A)) state that it is only available when there is a reasonable explanation for such evidence not being heard "at the original proceedings". There is, of course, no evidence heard in a case where a plea of guilty has been tendered and accepted.
Procedure
[2] The appellant was indicted to a Preliminary Hearing on 10 November 2008 at the High Court in Glasgow in respect of the murders, on 3 May 2008, of his two young sons, aged 6 and 2, at Crow Road, Lennoxtown. On 6 November 2008, on the joint application of the parties, the court discharged that Hearing and fixed a new one for 20 November 2008. Although the reason for the postponement is not recorded, a concern had arisen at that early stage about the appellant's mental state. That is significant in connection with what happened subsequently. At the new Hearing, the court was informed that the appellant accepted that the acts libelled had been carried out by him, but an issue in relation to his mental state remained outstanding. Sanction for the instruction of an expert psychiatrist had been obtained.
[3] At a further Preliminary Hearing on 26 November 2008, having obtained the expert's views (infra), the appellant pled guilty to both charges of murder. No issue was taken with the narrative provided by the Crown. Sentence was deferred pending the preparation of a social enquiry report. At the next diet, on 11 December 2008, the court was advised again that there were concerns regarding the appellant's mental state. A deferment was granted in order to allow further psychiatric examination. On 20 January 2009, at the High Court at Paisley, the court was addressed on sentence. The appellant was represented by the same counsel at this diet as he had been at all of the earlier hearings. The sentencing judge determined that, on conviction after trial, the punishment part of the appellant's life sentence would have been 28 years. In view of the early guilty plea, this was reduced to 21 years (ie a discount of one quarter). That discount far exceeded what came to be accepted as the norm for punishment parts (HM Advocate v Boyle 2010 SCCR 103). This is significant.
The incident and immediate aftermath
[4] The appellant was aged 46 at the time of the offence. His two sons lived with their mother (the appellant's ex-wife), although the appellant took them out on a regular basis. At about 10am on 3 May 2008, the appellant telephoned his ex-wife to make arrangements to collect the children, ostensibly to take them to see their paternal grandmother. There had been no prior arrangement that the appellant would take the children out that day.
[5] The appellant left his home, where he stayed with his mother, telling her that he was going to work. He proceeded to an ironmonger, where he bought a cooking wok and a large knife. The appellant collected the children from his ex-wife's home, telling her that he would be taking them to the park. Before leaving, the appellant told his son, P, to give his mobile phone to his mother, whose phone was not working, explaining that he would telephone her if his younger son, J, started crying.
[6] At around 1pm, the appellant telephoned his ex-wife using P's mobile phone. When asked if the children were "okay", the appellant replied "your babies are fine, your babies are fine". When asked why he was calling the children "your babies" and not "our babies", the appellant replied "you'll regret everything you've done to me in life" and hung up.
[7] At around that time, the appellant was seen in his car, parked in a lay-by, apparently sleeping in the driver's seat. He was still there at about 4.40pm. Shortly thereafter, the police were contacted. The police found the appellant still in the driver's seat, unconscious. There was an overwhelming smell of petrol. The appellant had large blisters on his arms, hands and face. The knife was seen in the driver's foot well, with blood on the blade. The children were in the back of the car. They each had stab wounds to the throat. They had been dead for some time.
[8] An open petrol can was found lying in the front passenger foot well. Two empty vodka bottles were also recovered. The petrol had been ignited. An explosion had followed, entering the boot of the car, pushing the door frames out of alignment and quickly extinguishing itself due to lack of oxygen.
[9] A mobile phone and a dictaphone were found a short distance from the car. The appellant had thrown the dictaphone from the car, presumably on the assumption that it would be found after his death. A transcription of the contents of the dictaphone identified two voices, those of the appellant and a child. The recording begins (in Punjabi): "This is a very big story. It's purpose is that I'm speaking in Punjabi because my children are with me, if I spoke English then they would understand and today is the last day. These children are mine and they'll go with me." It continues: "I would not let my children know as to where I'm taking them ... there is death, death is ... this death is near. I have become a gambler, a drunk, nothing has become of me." The appellant then speaks to his older son (in English), telling him how much he loves him and his brother. The recording resumes: "I would always miss you" and "so we're gonnae have a very good game today, very good fun today baby", "and we're going to live together", "nobody can separate us now ...".
[10] The appellant was taken to hospital suffering from extensive burns and significant smoke inhalation. He was conscious on arrival, but did not speak. He was sedated and remained in intensive care, apparently unable to speak, until 19 June 2008. His mood was observed to be low.
[11] A psychiatric evaluation was carried out by Dr Dallas Brodie, consultant liaison psychiatrist at the Royal Infirmary, on 30 June. In his report dated 11 July 2008, Dr Brodie advised the consultant in charge that the appellant showed no signs of any psychotic phenomena. He was fully alert and spoke in a rational, coherent manner. The appellant said that he had been assaulted by two men, who had pushed him to the ground. He provided some information on his background to the effect that he had had a happy childhood. He had had no problems at school. He had come to the United Kingdom when he was quite young and had completed his education in Manchester, when he was about 23 or 24. He had only been able to get work at a Call Centre, which is where he had been working at the time of his admission. He had two children, aged 6 and 3 (sic), whom he appeared to think were still alive. In a later statement to the police, taken on 8 July, Dr Brodie said that he had re-assessed the appellant. He could find no evidence of obvious mental disorder. There was no evidence of cognitive impairment. The appellant was fully orientated with his short term memory intact.
[12] On 15 July 2008, on being advised that he was being detained for the murders of his children, the appellant stated to the police: "who are they? They're not dead. Oh right, I thought someone gave a statement against me because I set myself on fire." During a subsequent interview, the appellant denied killing his children. When asked if he had been present when they were killed, he alleged that he had had a few drinks and lain down at a city centre bus stop. Two men had raped him and tried to set him on fire. He then asked the police: "so they, my children are dead?" The appellant said that he could not remember when he had last seen his children. He denied buying the knife or keeping a petrol can in his car. He later confirmed that his car ran on diesel and claimed that he kept the petrol can in case his ex-wife ran out of petrol. He accepted that the recording on the dictaphone was his, but continued to maintain that he could not remember anything and that he had not known that his children were dead.
Pre trial Psychiatric Examinations
Dr Reid
[13] On 18 July 2008, the appellant was examined by Dr Gavin Reid, consultant forensic psychiatrist at the Rowanbank Clinic, on the instructions of the procurator fiscal. The appellant told Dr Reid that his memory had returned, albeit only recently. He had been at a bar, the name of which he could not recall, at about 11pm, and had drunk 2 pints. He had then been at a bus stop, where he was assaulted by 2 men. He had been raped, robbed and set on fire. He had driven himself to hospital.
[14] The appellant's account of his childhood was this time less than happy. His father had left the family home when the appellant had been aged 5. He was bullied at school. After University in India, he had come to the United Kingdom when he was 29, living initially in Oxford and then Glasgow, where he...
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