Donna Murphy V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Clarke,Lord Menzies |
| Judgment Date | 30 May 2012 |
| Neutral Citation | [2012] HCJAC 74 |
| Published date | 30 May 2012 |
| Date | 30 May 2012 |
| Court | High Court of Justiciary |
| Docket Number | XC410/11 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Carloway Lord Clarke Lord Menzies | [2012] HCJAC 74 Appeal No: XC410/11 OPINION OF THE COURT delivered by LORD CARLOWAY in the appeal by DONNA MURPHY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: A Macleod; Drummond Miller (for Bob McDowall, Glasgow)
Alt: Brodie QC AD; the Crown Agent
30 May 2012
General
[1] On 27 April 2011, at the High Court in Glasgow, the appellant was found guilty, by the unanimous verdict of the jury, of the murder of Connor Mallon on 10 January 2010 at a flat in Cockenzie Street, by knocking him to the floor, repeatedly standing and stamping on his neck, repeatedly kicking him on the body, repeatedly striking him on the head and body with ornaments, broken glass, a glass tumbler and other sharp and blunt instruments. She was also convicted of attempting to defeat the ends of justice by washing blood from the deceased and changing her own clothing and footwear. The appellant was sentenced to life imprisonment with a punishment part of 14 years. Significantly, for the purposes of this appeal, her co‑accused, Rose Ann Heron, was acquitted by a majority verdict.
The death of the deceased
[2] The appellant and her co‑accused were friends. The deceased was the boyfriend of the co‑accused. All three had been drinking in the co‑accused's flat, which is where the deceased was killed. The forensic science evidence demonstrated that the deceased had been assaulted first when he had been standing in the hall. The assault had continued into a hall cupboard, where the deceased was struck by various items of crockery and a tumbler. By this time, he was either kneeling or lying on the floor. He had fractures to the ribs, which were indicative of stamping and kicking. He had fractures to the bones of the neck, which were suggestive of the deceased having been seized by the neck. Stellate injuries to the face pointed to the deceased having been stabbed with the stem of a wine glass. The deceased suffered a gaping cut to the eyebrow, which had caused a considerable loss of blood. He had ultimately been dragged into the bathroom and drenched with water. He had sustained a total of 38 injuries to his head and neck. One neighbour, Helen Kelly, had heard noises coming from the flat at about the time of the incident, which might have been someone shouting: "Donna, Donna, Donna".
[3] The appellant's fingerprints were found upon a bloodstained glass in the hall cupboard. After the attack, the appellant had changed her clothes and attempted to wash those that she had been wearing. Nevertheless, there was blood staining on her clothes and boots. She had placed a chair against the front door of the flat to prevent entry. There was contact blood staining on the co‑accused's clothes and on her slippers, which were wet, indicating that she had been present when the deceased had been taken through to the bathroom and splashed with water.
Statements by the accused
[4] Immediately after the incident, the co‑accused left the flat and sought the assistance of neighbours. One of these, Paul Inglis, said that she had called at his flat door and had stated to his wife: "There's been a murder. She's slit his throat and was dragging him all over the place". Mr Inglis had gone to his door and the co‑accused had repeatedly said: "Call the police. There's been a murder. She's slit his throat. She's dragged him all over the place".
[5] Police officers testified to being allowed into the close by the co‑accused, who had told them: "He's up there. She's murdered him". The police had taken the co‑accused into the neighbouring flat of Colin Wilson. There, Mr Wilson had said that the co‑accused had said: "My boy, my boy, she slit his throat". She had referred to the appellant arriving unexpectedly at the co‑accused's flat. In cross‑examination, the co‑accused had elicited from Mr Wilson that the co‑accused had explained that the incident had occurred near the hall cupboard.
[6] When the police encountered the appellant in the flat, she had said: "Is he dead? It's nothing to do with me. Rose Ann done it. I pulled him out trying to get his wounds shut. I don't know how he got them". The appellant had been calm, but the co‑accused hysterical. Ms Kelly said that, when the police were removing both accused from the scene, the co‑accused had been shouting: "Why did she do that" and "She's cut his throat".
[7] The appellant had received a common law caution from the police in the flat. She was taken to London Road police station, where she was placed in an interview room awaiting the arrival of detective officers. She had been chatting with uniformed officers about matters unrelated to the events in the flat. The uniformed officers had been under the misapprehension that the appellant was only a witness. They had been unaware of the caution given to her. During the course of what one of the officers said was "quite a conversation", the appellant had stated: "I admit I kicked him to the floor". Despite being then cautioned by the officers, she had continued: "I don't care. I never did it. Rose Ann was there...". She had then blamed her co‑accused for the assault, apart from the kick to the floor. This blame extended to the co‑accused stabbing the deceased with a wine glass.
[8] Meantime, the co‑accused had been taken to Shettleston police station and, in remarkably similar circumstances, had said that she had been aware that the appellant had been pulling items out of her cupboard. She had seen the appellant dragging the deceased across the floor. In cross‑examination from the co‑accused, the police stated that she had described the appellant's actions as: "cold and calculated".
[9] In due course, the Crown led evidence from Catherine Hainey, a prisoner at Cornton Vale, where the appellant had been remanded in custody on 12 January 2010. Ms Hainey maintained that the appellant had admitted to her that she had committed the murder. In particular, she had said: "I didn't just stab f**k out of him. I took the eye out of his heid". Although, the deceased's eye had not been removed from its orbit, the eyebrow wound may have given that impression.
The Preliminary Hearing
[10] The appellant had been indicted to a preliminary hearing on 12 November 2010. No preliminary pleas, issues, applications or objections were raised on her behalf in advance of that diet. The court was advised that the appellant was ready for trial. However, the co‑accused raised an objection to the evidence of the contents of a statement given by her at the police office ostensibly as a witness and of a subsequent interview of her by the police, which largely confirmed that witness statement. These were respectively noted and transcribed in Productions 48 and 34. The preliminary hearing was "continued" until 2 December 2010, without a trial diet being fixed. On that date, the Crown intimated that they would not be relying on any statements made by the co‑accused in the police station. The co‑accused therefore withdrew her objection and a trial diet was fixed for 4 April 2011. Nevertheless, the preliminary hearing was "continued" until 2 February, and then 7 March, 2011 in order to resolve a new dispute which had arisen in relation to the recovery of the appellant's medical records. On 7 March, the diet was again "continued", this time to allow further enquiry into new evidence intimated by the Crown in the form of a notice under section 67 of the Criminal Procedure (Scotland) Act 1995. The continued diet was fixed for 28 March, but continued to 29 March because of the appellant's failure to appear.
[11] At the diet of 29 March 2011, the appellant sought to make, for the first time, an application under section 259 of the 1995 Act to allow hearsay evidence to be led concerning the same witness statement by and three subsequent interviews of the co‑accused, upon all of which the Crown had earlier stated they did not intend to rely. It was contended for the appellant that the application was not late but, if it were, it ought to be treated as an excusable "procedural irregularity" in terms of section 300A of the Act.
[12] Production 48 purports to be a witness statement noted in manuscript by the police at the police station. It bears to be signed by the co-accused. It contains a detailed statement of events leading up to the incident in the flat. It records that the co‑accused recalled there being some kind of humorous exchange between the appellant and the deceased. This was the last thing that she could remember before being out in the hall and seeing the appellant breaking various ornaments. She had shouted at the appellant. The next thing that the co‑accused could remember was the deceased lying on the hall floor with a cut across his throat. She did not know where the appellant had gone. The co‑accused had left the flat and sought help from her neighbours. On being asked by them what had happened, she had said that she did not know. She maintained that she had given the same account to the police. In particular, she had not known how the deceased had come to be injured and killed. In summary, in relation to the critical events, she had said: "There is nothing at all that I can tell you about this. I can't remember anything else about it". The remaining productions were transcriptions of the three recorded interviews with the co‑accused. The Crown repeated that they did not seek to rely upon either the witness statement or the interviews because they accepted that the co‑accused had, even at the time of the witness statement, been regarded as a suspect and had been questioned without having been given the opportunity of accessing a lawyer as subsequently required by Cadder v HM Advocate 2011SC (UKSC) 13.
[13] The judge explains in his report that he did not consider that the application under section 259 had been timeous. Section 259(5) and (5A) provide that the application...
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