McCormack v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 19 March 1993 |
| Neutral Citation | 1993 SCCR 581 |
| Docket Number | No. 23 |
| Date | 19 March 1993 |
| Court | High Court of Justiciary |
JC
L.J.-G. Hope, Lords Allanbridge, Cowie
Procedure—Solemn procedure—Appeal—Evidence—Additional evidence—Murder—Culpable homicide—Provocation—Appellant giving evidence at trial for murder of his wife that he remembered nothing of what happened after he had slapped her until she was lying dead at his feet—Psychiatric reports of the view that the lack of memory of the appellant was genuine—Whether, on regaining memory, appellant entitled to lead evidence to establish that he had wanted to stop her asserting that he was not father of child of marriage—Whether evidence not reasonably available at trial—Whether additional evidence—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 228 (2)1
Section 228 (2) of the Criminal Procedure (Scotland) Act 1975 enacts that a person may appeal against conviction on the basis of additional evidence which was not available and could not reasonably have been made available at trial.
The appellant was tried for the murder of his wife in the High Court of Justiciary. In evidence he stated that there had been a struggle between himself and his wife in the course of which she sank her teeth into his forehead and he slapped her. The appellant then got on top of her, knelt astride her and slapped her face and the next thing he remembered was that he was sitting on the edge of a bed looking down at her and she was lying dead on the floor. A bandage was in his hand and he could not recall strangling her but accepted that he had done so. The appellant pled the defence of provocation and the trial judge (Lord MacLean) directed the jury that there had to be a reasonable proportionate relationship between the conduct amounting to the provocation and the appellant's act. On being convicted of murder, the appellant appealed to the High Court of Justiciary by way of note of appeal and argued that the trial judge had misled the jury in his directions on provocation into thinking that the act complained of had to be broadly equal to the response. The appellant also lodged an affidavit in which it was stated that he had now recovered his memory and could give evidence that, following on the slap, his wife had suggested that he was not the father of her child, that he wanted to shut her up and tried to stuff the bandage into her mouth and that there was then a further struggle in the course of which he pulled the bandage around her throat. Reports from psychiatrists were placed before the appeal court indicating that the appellant's account of loss and recovery of memory was genuine, being a common occurrence in cases of this kind and the Crown accepted that the proposed additional evidence could not reasonably have been made available at the trial.
Held (1) that, the trial judge's direction on provocation had not indicated that there had to be a precise equivalence between the conduct amounting to provocation and the act or reaction to it or that a fine balance was required, the effect of his direction being simply to warn the jury that they could not hold that the appellant was acting under provocation where there was an absence of any proper or reasonable relationship between the provocation offered and the response to it, the question always being one of circumstances and degree; (2) that the additional details the appellant sought now to give by way of evidence
could not properly be described as additional evidence, for what he was seeking to do was to withdraw that part of his evidence at the trial where he said the next thing that he remembered after slapping his wife's face was sitting on the edge of the bed looking down at her lying on the floor when she appeared to be lifeless and to substitute evidence that he could not recall strangling her with the bandage, evidence to the effect that he put the bandage around her throat and pulled it because he wanted her to stop saying that he was not the father of the child; (3) that the fact that the different account contained additional elements did not mean that it was additional evidence, but it amounted only to a more complete account by the same witness of the same incident; and (4) that, in any event, even if it could be regarded as additional evidence, it was not evidence of such significance that a verdict reached in ignorance of it had to be regarded as a miscarriage of justice, since the wife's accusation did not amount to a clear and unequivocal admission of adultery which was accepted as such by the accused; and appeal refused.Jones v. H.M. AdvocateSC 1990 J.C. 160 distinguished.
McKay v. H.M. AdvocateUNK 1992 S.L.T. 138applied.
Observed that, in principle, if there was a miscarriage of justice, because the appellant was now able to give significant additional evidence which was not heard at the trial and was not available and could not reasonably have been made available then because of a genuine state of amnesia, it would be the duty of the court to set aside the conviction and grant authority for the bringing of a new prosecution.
Hugh Guthrie McCormack was charged on an indictment raised at the instance of the Rt. Hon. The Lord Fraser of Carmillie, Q.C., Her Majesty's Advocate, the libel of which set forth that: "[O]n 19th September 1991 in the house occupied by Angela Janet McIntyre or McCormack at … you did assault said Angela Janet McIntyre or McCormack, seize hold of her, struggle with her, repeatedly strike her on the head g and body with your hands or feet or cause her to strike her head and body against solid objects, place a ligature around her neck and compress her throat with said ligature and you did murder her."
The cause called for trial before Lord Mac Lean and a jury in the High Court of Justiciary at Kilmarnock between 13th and 16th January 1992. On 16th January the jury convicted the pannel of murder.
The pannel thereafter appealed to the High Court of Justiciary by way of note of appeal against conviction on the ground that: "The trial judge erred in that he did not properly and sufficiently direct the jury in respect of provocation. In particular, he gave an insufficient direction as to the standard to be applied by the jury in considering whether or not provocation had been established."
On 8th October 1992 the appellant was granted leave by the High Court of Justiciary to lodge an additional ground of appeal and supplement the original ground. The additional ground of appeal and supplemented original ground were as follows:"(1) The trial judge erred in that he did not properly and sufficiently direct the jury in respect of provocation. In particular, he gave an insufficient direction as to the standard to be applied by the jury in considering whether or not the provocation had been established. The test to be applied is whether a reasonable man would have lost control in the circumstances as narrated in evidence by the accused. The relationship between the conduct causing the loss of control and the response must be conceded [sic] in the context of the control having been lost. The trial judge failed to make this clear and in so doing caused the jury to weigh the conduct causing the loss of control and the response in too fine a balance. The jury were thereby given the impression that the plea of provocation must fail unless the conduct causing the loss of control and the response thereto were broadly speaking equal. (2) There has been a miscarriage of justice in that further evidence is now available tending to exculpate the appellant of the crime of murder, said further evidence was not available and could not reasonably have been made available at the trial diet. Said further evidence is as contained in the affidavit of the appellant which will be produced herewith. Said further evidence was not available at the trial diet because the appellant was unable to remember it. The loss of memory was caused by the medical and mental condition of the accused."
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Allanbridge and Lord Cowie for a hearing on 5th March 1993. Eo die, their Lordships madeavizandum.
At advising, on 19th March 1993, the opinion of the court was delivered by the Lord Justice-General (Hope).
Opinion of the Court—The appellant...
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