Wendy Graham Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lady Clark Of Calton,Lord Justice General |
| Neutral Citation | [2018] HCJAC 57 |
| Court | High Court of Justiciary |
| Date | 02 October 2018 |
| Docket Number | HCA/2017/477/XC |
| Published date | 02 October 2018 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2018] HCJAC 57
HCA/2017/477/XC
Lord Justice General
Lady Clark of Calton
Lord Turnbull
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
THE REFERENCE FROM THE SCOTTISH CRIMINAL
CASES REVIEW COMMISSION
WENDY GRAHAM
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Allan QC, Gianni; Faculty Services Ltd (for George Mathers & Co, A berdeen)
Respondent: McSporran QC (sol adv) AD; the Crown Agent
2 October 2018
Introduction
[1] On 15 December 2008, at the High Court in Edinburgh, the appellant was
unanimously found guilty of the murder of her partner, namely Mark Thomson, on 4 June
2008 at their flat in Robert Burns Drive, by stabbing him repeatedly with a knife. She was
sentenced to life imprisonment, with a punishment part of 11 years. The trial concerned
2
whether the appellant should be convicted of murder or culpable homicide. Although the
appellant advanced a plea of diminished responsibility, this was withdrawn from the jury’s
consideration by the trial judge. Provocation remained for the jury’s consideration, as did
whether the appellant had had the requisite intent or level of recklessness for murder.
Provocation was rejected. The jury were clearly satisfied that the necessary mental element
had been present.
[2] On 30 June 2017, the Scottish Criminal Cases Review Commission referred the case
on the basis of new evidence relating to the appellant’s psychological state at the time of the
killing. The new evidence was said to come primarily from Dawn Harris, who is a chartered
psychologist. She had been instructed by the SCCRC. She first saw the appellant in
February 2017. Her view, as expressed in her report of 4 March 2017, was that, at the time of
the killing, the appellant “would not have had the capacity to think rationally”, having been
“driven by years ... of abuse and trauma leading her to acting on impulse in a moment of
feeling overwhelmed. This could be considered an impairment of mind”.
[3] The appeal raises the primary issue of whether the terms of section 106(3)(a) of the
Criminal Procedure (Scotland) Act 1995 have been satisfied. The question is whether a
miscarriage of justice has occurred, based upon the existence and significance of evidence
which was not heard at the original trial; there being a reasonable explanation of why that
evidence was not so heard (s 106(3A)). The reference raises a subsidiary question, stemming
from dicta in Galbraith v HM Advocate 2002 JC 1, of whether the evidence of a psychologist is
capable of demonstrating, contrary to psychiatric opinion, that an accused person suffered
from a “mental abnormality” which impaired his ability to determine or control his acts at
the material time?
3
The trial
Background
[4] The deceased was the 42 year old partner of the appellant. He was killed by the
appellant on the evening after the appellant’s father’s funeral. The deceased and the
appellant had lived together for about a year and a half. The trial judge reports that,
although the deceased had initially been supportive of the appellant, who had significant
problems with depression, self-harming, low esteem and drug and alcohol addiction, the
relationship deteriorated. There had been intermittent violence, which the judge describes
as being “on both sides”.
[5] One neighbour and friend, namely Thomas McIntyre, had previously seen bruising
on the appellant’s chest and arms, which she attributed to the actions of the deceased. At
Christmas, Mr McIntyre had seen the deceased with a fresh head wound, which the
deceased said had been caused by the appellant hitting him with a broom. He had seen a
“slash” through the deceased’s tattoo (presumably on his arm, see Mr Duke (infra)).
Mr McIntyre thought that the appellant’s mental health had been deteriorating. She was
self-harming. The deceased could become aggressive when he drank alcohol in conjunction
with his anti-depressants. Mr McIntyre had advised the deceased to leave the house or
someone would get badly hurt.
[6] Another friend, Justin Duke, described the couple as fine, when they were not
drinking. Otherwise they would argue all the time. On two or three occasions, he had seen
bruising to the appellant’s eyes and chest and finger marks on her arms. He had also seen
the deceased with black eyes. On one occasion the deceased had shown him a wound to his
arm where, he had said, the appellant had stabbed him. At the same time, the deceased had
a massive bite mark to his thigh, with an indented teeth mark, which had been inflicted by
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