Laura Stewart V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Wheatley,Lord Drummond Young |
| Judgment Date | 12 March 1997 |
| Neutral Citation | [2012] HCJAC 126 |
| Docket Number | XC785/11 |
| Date | 19 September 2012 |
| Court | High Court of Justiciary |
| Published date | 19 September 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Drummond Young Lord Wheatley | [2012] HCJAC 126 Appeal No: XC785/11 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by LAURA STEWART Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: McConnachie QC, Tait; Capital Defence Lawyers, Edinburgh
Respondent: Scullion, Advocate depute; Crown Agent
19 September 2012
Introduction
[1] On 3 October 2011, the appellant and her co‑accused Anthony Malloy were found guilty of murder in the following terms:
"On 2 December 2010 at Flat 0/1, 62 Calder Street, Govanhill, Glasgow and within the common close there, you Anthony Francis Malloy and Laura Stewart did, whilst acting together, assault Martin Vaughan, residing there, and repeatedly punch him on his head and body, repeatedly kick and stamp on his head and body, seize hold of him and drag him from the common close into said flat, repeatedly strike him on his head and body with a pole, a bottle, ornaments or similar implements whereby he was so severely injured that he died on 4 December 2010 at the Victoria Infirmary, Grange Road, Glasgow and you did murder him; and you Laura Stewart did previously evince malice and ill will towards him ..."
[2] The appellant now appeals against conviction, contending that the judge misdirected the jury when he told them at page 37 of his charge:
" ... A suggestion was made that you could find one accused guilty of murder and the other of culpable homicide. In the state of the evidence in this case, I do not consider that there is a basis for doing that, and I direct you that that option is not open to you."
The appellant contends that the jury were deprived of the opportunity of convicting her of the lesser offence of culpable homicide, even although convicting her co‑accused of murder.
The circumstances of the offence
[3] The trial judge in his report set out the circumstances of the offence as follows:
" The appellant Laura Stewart had previously been in a relationship with the deceased. By the time of the murder their relationship had broken up and she was living with another man. She was still visiting the deceased from time to time, and they would drink and take drugs together. By all accounts the relationship had been a very stormy one; from time to time each would assault the other. The co‑accused Malloy did not know the deceased and had never met him prior to the day of the murder. Up until a relatively short time before the murder he had been living in Ireland. The two accused did not know each other although each vaguely knew who the other was. They met by chance in the morning of 2 December 2010 when each of them was looking for heroin. They managed to purchase heroin and the appellant Laura Stewart invited Anthony Malloy to come to the house of the deceased where they could consume the heroin.
It appears that all three spent the day in the flat of the deceased which was on the ground floor.
A number of neighbours gave evidence as to sounds that they heard coming from the flat in the course of the day and into the night. One of these, Crown witness 10 Scott Peden, said that he heard shouting from the flat around 1pm. He recognised the voices as those of the appellant Laura Stewart and the deceased. Laura Stewart sounded aggressive. Another neighbour, Crown witness 11 Sunil Chaka, heard voices raised around 8pm; he heard a female voice say 'I told you not to fucking do that'. Another voice said 'I think we should go now'. Crown witness 13, Arthur Izat lived in the corresponding flat in the next close so that he was through the wall from the flat of the deceased. He said that from time to time over a period he heard noises like thumps and bangs. He heard Laura Stewart, whose voice he recognised, shouting aggressively. Things would quieten down and start up again; these noises went on until about 11pm.
Crown witness 7 Julie McConnachie lived in a first floor flat across the road from the flat occupied by the deceased. About midnight she looked out of her window and in the common close leading to the deceased's flat she saw two persons kicking and punching another person who was lying on the floor. She telephoned 999 and described what she was seeing. As a result, police officers attended at the flat of the deceased.
When the police officers (Crown witnesses 30 and 31: constables Emma Love and Gordon Higson) arrived they found the two accused in the flat and lying on the floor in the hallway was the deceased who was badly injured. There was a lot of blood on the floor in the living room. More police officers attended and the appellant, who was very excitable and agitated, gave a false account about the deceased having been assaulted by a group in the street and that she and Mr Malloy had helped him home.
The deceased was taken by ambulance to the Victoria Infirmary, where on arrival at around 1am, he was still conscious with a Glasgow Coma Score (GCS) of 11 out of 15. He was noted to have a considerable number of injuries to his face and head. Fairly quickly his level of consciousness deteriorated and by about 2:30am the GCS was 3 out of 15. A CT scan of his head revealed a large right sided subdural haemorrhage with midline shift while a chest x‑ray revealed a number of fractured ribs on the right side. He was taken into intensive care and attached to a ventilator to assist breathing. His condition never improved and in the evening of 4 December, after discussion with the family, the life support system was disconnected and he was pronounced dead."
The cause of death
[4] Seventeen injuries were found on post‑mortem. None was a bleeding injury. The pathologist considered that the extensive bloodstains found on the livingroom floor were caused by a nosebleed. There was bruising to the scalp, chest and face, with some bruises having a faint linear pattern suggestive of the imprint of footwear, and thus stamping. There were fractures of the left cheekbone and larynx, and fractured ribs. The cause of death was certified as a head injury (subdural haemorrhage) due to blunt force trauma to the head and face. It was not possible to identify the fatal blow.
Forensic evidence about bloodstains
[5] The forensic scientist identified three types of bloodstain on the clothing of the appellant and the co-accused:
1. Contact bloodstains, produced when an object wet with blood touched another surface.
2. Blood spots transmitted aerially.
3. Impact spatter, caused when a blow or impact into wet blood produced a pattern of small spots.
[6] Details of the distribution of blood on the clothing of the appellant and the co‑accused are set out in the judge's report as follows:
"On the clothing of both accused there was blood staining which matched the DNA profile of Martin Vaughan.
On the shirt worn by the co‑accused Malloy there was heavy contact blood staining, some of which was clotted, ... on the front, the lower back and on both sleeves. The presence of clotted blood indicated that the deceased had been assaulted earlier and that the co‑accused had continued to...
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