APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Eassie Lord Nimmo Smith	[2011] HCJAC 58 Appeal No: XC266/10 OPINION OF THE COURT delivered by LORD OSBORNE in NOTE OF APPEAL AGAINST CONVICTION by CRAIG WILLIAM JAMIESON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Watson, Q.C., Taggart; John Pryde & Co, Edinburgh

Respondent: Miller, Solicitor Advocate, A.D.; Crown Agent

16 February 2011

The background circumstances
[1] On 7 April 2010 at the High Court at Glasgow, the appellant was found guilty, after trial, on charge 2 of the indictment which he faced. Charge 2 was in the following terms:

"(2) on 8 February 2008 at the flat occupied by you at 1/1, 1421 Dumbarton Road, Glasgow you CRAIG WILLIAM JAMIESON did assault Abbie Jamieson, born 22 September 2007, your daughter and, by means to the prosecutor unknown, inflict blunt force trauma to her head and body whereby said Abbie Jamieson was so severely injured that she died on 8 February 2008 at Yorkhill Hospital, Glasgow and you did murder her."

On 25 March 2010 the court had upheld a submission of no case to answer with regard to charge 1 in the indictment, and therefore acquitted the appellant of that charge. On 8 April 2010 the trial judge sentenced the appellant to life imprisonment with a punishment part of sixteen years to date from 7 April 2010.

[2] Thereafter the appellant lodged a note of appeal against conviction on a number of grounds. That note of appeal was subsequently permitted to be amended. For the present purposes it is necessary to notice only grounds 1, 17 and 18 of the amended note of appeal. They are in the following terms:

"1. The learned trial judge erred in his directions to the jury relating to 'the various statements' made by the appellant [charge, page 8/line 21 to page 9/line 8]. He treated the statements as exculpatory because in none of them did the appellant make an admission of guilt. He instructed the jury that the statements were not evidence of the facts contained in them and that they could not treat them as a substitute for evidence given by the appellant. He erred for the following reasons:

(a) The appellant's statement to the police of 8 February 2008 [Crown Production 51] was a mixed statement introduced into evidence by the Crown.

(b) The appellant's taped interview of 10 February 2008 was a mixed statement introduced into evidence by the Crown. The tape of an edited version of the interview [Crown Label 10] was played and its terms put to several Crown witnesses. The edited transcript of the interview [Crown Production 56] was in the hands of the jury. The learned Advocate depute read out passages from the transcript in her speech to the jury.

(c) The statements made by the appellant to Dr Russell (notes of which were contained in the deceased's hospital records [Crown Production 1]), to Nurse Anderson (notes of which were made [Crown Production 21]) and to ambulance personnel were all mixed statements introduced into evidence by the Crown.

The content of these statements were relied on by the defence in so far as they exculpated the appellant. The statements were material to the defence. The defence proceeded on the basis that said statements were mixed and could be relied upon. Believed and averred that the Crown proceeded in the same belief.

...

17. The learned trial judge erred in repelling the defence's objection to the leading in evidence of the police interview of the appellant. During that interview the appellant was not given access to a solicitor. Reference is made to the Devolution Minute lodged on behalf of the appellant for purposes of the preliminary hearing, the terms of which are held to be repeated and incorporated here for the sake of brevity. Reference is further made to Cadder v HM Advocate [2010] UKSC 43.

18. Separately, the learned Advocate depute, in leading evidence of the police interview of the accused and in the use to which she put the contents of that interview throughout the trial, acted in contravention of the appellant's rights under Article 6 of the European Convention on Human Rights and, therefore, of section 57(2) of the Scotland Act 1998. The contents of the interview dominated the appellant's trial and were central to the Crown case against him. The Advocate depute made constant reference to it including in the examination of Crown witnesses and in her speech to the jury. In the circumstances of the trial, the use which the Advocate depute made of the contents of the interview was unfair. Reference is made to the Devolution Minute lodged on behalf of the appellant concurrently with the original Note of Appeal, the terms of which are held to be repeated and incorporated here for the sake of brevity. Reference is further made to Cadder v HM Advocate [2010] UKSC 43."

[3] The circumstances of the offence, as described by the trial judge in his Report to this court, were as follows. Although the evidence in the case lasted many days, the essential facts were very simple. On 8 February 2008, the appellant, Nichola Haddock and Abbie Jamieson, born on 22 September 2007 were living at the locus. Ms Haddock was then a student at Glasgow Caledonian University. It was not disputed that she left the flat at about 7.40 am to attend classes at the University and that the appellant and Abbie were then still asleep. According to a statement made by the appellant, he woke up about 9.15 am, got Abbie up and fed her. Sometime later he noticed that she was pale and that her head was swollen. He telephoned Ms Haddock, who came back to the flat. By the time that she got there, Abbie was comatose. The appellant telephoned for an ambulance, which arrived shortly afterwards. Abbie, who was then showing virtually no signs of life, was taken to Yorkhill Hospital. There strenuous attempts were made to resuscitate her, but these were unsuccessful and she was certified to be dead at about 6.00pm.

[4] A post-mortem report disclosed that Abbie had two skull fractures. The fracture on the left side of the skull was very recent. On the right side of the skull the pathologists found a fracture, part of which was older but which appeared to have been recently extended. The date when this earlier fracture had occurred and its cause could not be established. There was a possibility that it might even have occurred prior to or at birth. There was damage to the dura which had resulted in considerable bleeding. There were also severe abdominal injuries. The liver was lacerated, and the duodenum and mesentery had suffered substantial damage. There had been considerable blood loss into the peritoneum. The combination of injuries was such that it had been impossible for Abbie to survive, although the head injury alone might not have proved fatal. The degree of force required to cause these injuries would have been considerable, such as might be experienced in a road traffic accident or a fall from a height. The autopsy also disclosed that Abbie had a fractured hip, which must have been caused some time previously. Ms Haddock gave evidence at length, spending two whole days in the witness box. She was cross-examined vigorously, but strenuously denied ever having inflicted any violence on Abbie. Her evidence was crucial to the Crown case, as the trial judge directed the jury. A majority of the jury must have accepted it.

[5] There was a great deal of medical evidence led at the trial. The evidence which the majority of the jury must have accepted was to the effect that, if Abbie had suffered the injuries found post-mortem before Ms Haddock's departure from the flat, she would not have been able to behave normally and take a feed as described by the appellant in his statement. The trial judge comments that, at the end of the day, the issue for the jury was essentially the credibility of Ms Haddock. If they accepted her evidence, the inevitable inference was that it was the appellant who was responsible for Abbie's injuries and her subsequent death.

[6] The Crown case was presented to the jury by the Advocate depute in this way. It was explained that the case against the appellant was essentially circumstantial. There was no eye-witness who was present when the injuries which caused her death were inflicted on Abbie. What the Crown relied on was the evidence of Abbie's mother, Nichola Haddock, that she had not assaulted or injured her baby, taken along, firstly, with evidence from the various witnesses about what the appellant had told them happened in the flat that morning, about how Abbie fed and drank and behaved, and, secondly, with the evidence of the medical experts that, if Abbie had already suffered her injuries when the appellant woke up, she would not and could not have acted and appeared or handled as the appellant had described her in his statements.

[7] The hearsay evidence of how the appellant said that the deceased had behaved in the flat on the morning in question was contained in several different statements, which were spoken to by witnesses in evidence. These were (i) the appellant's witness statement to the police of 8 February 2008, Crown Production 51; (ii) the appellant's taped interview with the police of 10 February 2008, Crown Label Production 10 and Crown Production 56; (iii) statements made by the appellant to a Dr Fiona Russell, Crown witness 36, a consultant in the Accident and Emergency Department of Yorkhill Hospital, notes of which were contained in the deceased's hospital records, Crown Production 1; (iv) statements made by the appellant to a nurse Martha Anderson, Crown witness 35, again in the Accident and Emergency Department of that hospital, notes of which were made which are Crown Production 21; and (v) statements made by the appellant to Julie Clayton, Crown witness 30, an ambulance paramedic.

[8] The medical expert evidence on which the Crown relied for the third element of its case came from, first, Mr Conor Mallucci, a consultant paediatric neurosurgeon, Crown witness 71, second, Mr Rick Turnock, a consultant paediatric surgeon, Crown witness 72, and, third Dr Richard Appleton, a consultant paediatric neurologist, Crown witness 70. Among these several statements, those of greatest importance were the appellant's witness statement to the police and his taped interview with police officers. These statements, among others, were introduced into evidence by the Crown. The Crown, in its submissions to the jury, relied on them as evidence of the facts contained in them. In doing so, the trial Advocate depute told the jury that they were entitled to find that what the appellant had said in the statements was true. The position of the Crown was that the statements were mixed statements. That was the basis upon which the trial was conducted.

[9] It was in the foregoing context that the trial judge gave certain directions to the jury regarding statements said by witnesses to have been made by the appellant. The relevant passage is to be found at pages 8 and 9 of the transcript of the charge and is in the following terms:

"The next thing I must mention to you is the various statements made by Mr Jamieson to the police, the original statement of 8^th February, the interview, the taped interview two days later 10^th of February and statements made to him, made by him to Dr Russell, the ambulance personnel and to Nurse Anderson. In none of these statements did Mr Jamieson make any admission of guilt. That means that you may look at what he said on these occasions only for a limited purpose. They are evidence of what he actually said on these occasions and of what his attitude and reactions were at these times. They are not evidence of the facts contained in the statements. In other words you may not treat these statements as a substitute for evidence given by Mr Jamieson."

[10] It should be explained that, in the light of the multiplicity of statements made by the appellant, spoken to in evidence by witnesses, a decision had been taken at the trial that the appellant should not give evidence. He did not do so. That decision was primarily influenced by the fact that the Crown had led the content of the appellant's taped interview with the police in evidence.

[11] In his witness statement, dated 8 February 2008, the appellant gave a detailed account of the events of 8 February 2008, in which he explained that Nichola Haddock had left the flat for university by the time he woke up. Abbie herself was asleep at that time. He then described how he had picked her up and wakened her up, when she seemed normal and did not cry. Nichola Haddock had left food for the baby, which the appellant described giving to her. He then went on to describe the events which led to his telephoning Nichola Haddock on account of his concern regarding the behaviour of the baby. Subsequently he described the succeeding events. So far as the taped interview with the police is concerned it was in large part played to the jury. To some degree it was edited, for reasons which need not be explored. For the present purposes, it is sufficient to note that, during the course of the interview, the appellant covered much the same ground as he did in his witness statement. He described that, after waking himself, he lifted the baby and took her to another part of the flat where he fed her food that had been left by Nichola Haddock. He went on to describe the subsequent events of 8 February 2008.

Submissions of the appellant
[12] Senior counsel for the appellant began by explaining the circumstances of the case and the events which occurred at the trial, to which we have already referred. In particular he drew attention to the several statements by the appellant, spoken to by witnesses in evidence, which we have described.

[13] Turning to ground of appeal 1, senior counsel drew our attention to a number of authorities bearing on the matter of what was a mixed statement. He began by referring to Criminal Procedure, Renton & Brown, 6^th ed., paragraphs 24.64-24.64.1. There it was said that any statement which contained matter helpful to the Crown was a mixed statement, even if its intent was exculpatory, as where the accused admits to his presence at the scene of the crime only in order to set the scene for a description of how it was committed by someone else. He went on to rely upon what was said in McCutcheon v HM Advocate 2002 SCCR 101. Rule 4 formulated in that case at paragraph 16(iii) was pertinent. Any admission against interest was seen as giving the character of a mixed statement to one which was otherwise exculpatory. In McIntosh v HM Advocate 2003 SCCR 137, it was held that the test was not what was the appellant's purpose in making the statement, or the Crown's purpose in leading it, but whether, considered objectively, it was in any way incriminatory. In that case it was held that the statement in question, although intended to be exculpatory, was incriminatory in that it put the appellant at the scene of the murder in the context of the evidence of several witnesses who said they saw only one youth there at the material time. Senior counsel went on to draw our attention to GAS v HM Advocate 2009 SCCR 815 and, in particular, paragraphs 9 and 10. Against this background of clear authority, the direction relating to the several statements was plainly erroneous. Since the appellant's defence had been perilled upon these statements being treated as mixed statements, in respect that the appellant was advised not to give evidence and did not do so, the consequence of the trial judge's misdirection in relation to the statements was plainly the occurrence of a miscarriage of justice.

[14] Senior counsel also addressed grounds of appeal 17 and 18 which were linked and also related to ground 1. He relied on what was said at paragraphs 86 to 92 of his written submissions. He explained that objections to the evidence concerned had been taken throughout the trial to preserve the position of the appellant. These objections were rejected. It was submitted that the evidence of the police interview had been inadmissible, on a proper view of the law. Its admission in evidence had caused irretrievable damage to the appellant's position. Accordingly, on this basis also, there had been a miscarriage of justice. The Crown's response to grounds of appeal 17 and 18 was to be found in paragraphs 108 to 117 of their written submissions. They accepted that the appellant had not had legal advice prior to the holding of the police interview, as required by what was said in Cadder v HM Advocate [2010] UKSC 43. It was submitted that the contention advanced in paragraph 116 of the Crown's written submissions was extraordinary. It was there contended that the potentially incriminatory effect of the police interview had been removed from the jury's consideration by virtue of the judge's misdirection to which ground of appeal 1 related. The jury had to be taken to have followed that direction with regard to the use to which they could put the evidence of the taped interview. That position appeared to involve the acceptance by the Crown of the force of ground of appeal 1. In any event, it was quite evident that the contents of the appellant's interview with the police were of crucial importance in the Crown case. If that material had been wrongly admitted in evidence, it followed that a miscarriage of justice had occurred.

Submissions of the Crown

[15] At the outset the Advocate depute made clear that the Crown conceded that the various statements made by the appellant to the police and others were properly to be seen as mixed statements. The Crown also accepted that the edited transcript of the police interview with the appellant, dated 10 February 2008, and the witness statement, dated 8 February 2008, had been used prominently during the course of the trial. However, the Advocate depute submitted that the use to which the statements had been put was nevertheless such that the acknowledged misdirection of the jury had not been productive of a miscarriage of justice. Elaborating that position, the Advocate depute said that, in the principal statements, the appellant had given an account of the events of the morning of 8 February 2008, in which he denied any harm being done by him to the baby. It was accepted that the trial judge's misdirection had prohibited the jury from considering that material as evidence of the facts which it contained. What was of importance in the case was the chronology of the different events that had occurred on that date. The evidence of Nichola Haddock had included descriptions of telephone calls that she received from the appellant during the morning of 8 February 2008, including details of their timing. The evidence of Dr Jacqueline Mok was to the effect that some of the injuries sustained by the deceased could have been 24 hours old. That evidence was supportive of the appellant. It was accepted that the defence representatives at the trial had founded on the appellant's denials in the statements of causing harm to the baby. However, there had been a lot more material in those statements than denials. The appellant had portrayed himself as an affectionate father. The Advocate depute accepted that that material was not available to the jury. He accepted that the appellant's rejection of the idea that an accident of any kind had occurred was also not available to the jury in consequence of the trial judge's misdirection.

[16] The special defence of incrimination tabled by the appellant had been based on a number of different sources of evidence. The Crown accepted that an important pillar of the Crown case, as well as of the defence case, had been removed from the jury's consideration by the direction in question. However, the Crown submitted that there was sufficient evidence other than the statements in question which put the appellant in the flat with Abbie and put Nichola Haddock at university. In particular, the evidence of paramedics who attended at the flat to find the baby and the appellant there alone was relevant in that respect. Thus there was ample evidence of the appellant being in the flat with the baby on the morning in question. Despite all these considerations, the evidence of Dr Mallucci was still to the effect that the injuries were inflicted around one to two hours before the arrival of the ambulance.

[17] The Advocate depute then proceeded to examine the transcripts of the evidence in detail with a view to showing that proof of the timescale of the events on that morning was not dependent on the appellant's own descriptions of events in the statements which he had emitted. That material, in association with the evidence of Dr Mok, had had the effect of undermining the Crown case, to some extent. Putting the matter in another way, the defence position did not rest wholly upon the statements given by the appellant. The Advocate depute went on to examine the evidence of Dr Mok in detail with a view to showing that there existed a factual basis for her expert opinion. Reference was made to pages 122 to 124 of the transcript of proceedings on 9 March 2008. Turning to grounds of appeal 17 and 18, the Advocate depute explained that the Crown's position was that the jury must be taken to have followed the trial judge's direction regarding the use to which the evidence concerning the statements could be put. That direction was substantially equivalent to it being held that the statements were inadmissible.

The decision

[18] We deal initially with ground of appeal 1. The contention is that the trial judge erred in directing the jury that the statements concerned were exculpatory, when he should have directed them that the statements were "mixed". The modern law relating to such statements was settled authoritatively in McCutcheon v HM Advocate 2002 SCCR 101, a decision by a bench of nine judges. For the present purposes, the part of the narrative of the decision which is of importance is paragraph (4) of the rubric. It narrates that it was held that, where the Crown have led evidence of a statement, part of which is capable of incriminating the accused, the defence are entitled to elicit and rely upon any part of that statement as qualifying, explaining or excusing the admission against interest. In the present context, the terms of paragraph [16] of the Opinion of the Lord Justice General are of importance. There he said:

"Having regard to what we have said above we are of the opinion that rule 2 in Morrison is in need of correction in so far as it stated that the admissibility of evidence of a mixed statement was the same where it was led by the defence without objection from the Crown as where it was led by the Crown. It may be convenient for future reference if we restate the main rules and in so doing take account of the opinion which we have expressed. The main rules which apply are as follows. (i) It is a general rule that hearsay, that is evidence of what another person has said, is not admissible as evidence of the truth of what was said. (ii) Thus evidence of what an accused has been heard to say is, in general, not admissible in his exculpation, and accordingly the defence are not entitled to rely on it for this purpose. Such evidence can be relied on by the defence only for the purpose of proving that the statement was made, or of showing his attitude or reaction at the time when it was made, as part of the general picture which the jury have to consider. (iii) There is, however, an exception where the Crown have led evidence of a statement, part of which is capable of incriminating the accused. The defence are entitled to elicit and rely upon any part of that statement as qualifying, explaining or excusing the admission against interest."

[19] In the context of a case in which the issue arising is whether the statements in question are to be treated as mixed statements or not, the terms of subparagraph (iii) are important, in our opinion, because they contain the words "... explaining or excusing the admission against interest." In our view, where a statement contains an "admission against interest" in relation to a matter which is relevant to the proof of an offence, even though the statement may contain exculpatory material, it is to be treated as a mixed statement. That principle is exemplified in McIntosh v HM Advocate 2003 SCCR 137. In that case the appellant was tried for murder and lodged a special defence of incrimination. He had made statements to the police in which he had said he had been alone on the hill where the murder occurred, and there was evidence from other witnesses that only one youth was at the locus at the relevant time. He then made a statement to a care worker in which he said he had been at the locus with the incriminee when the incriminee attacked the victim. There was compelling evidence which incriminated the appellant, who did not give evidence. In his charge to the jury the trial judge directed them that the statement to the care worker could not be used by the appellant as a form of evidence, but only to show whether he had been consistent or inconsistent in his position since the offence or that his position was consistent with other evidence. The appellant was convicted and appealed to the High Court on the ground, inter alia, that the judge had erred in not treating the statement to the care worker as a mixed statement. In his report the trial judge expressed the view that in admitting his presence at the locus the appellant was only setting the scene for the exculpation he tendered and that the Crown had led the evidence in fairness to the appellant to avoid the jury getting the impression that the incriminee had not been incriminated prior to the appellant being indicted. The court held that the test was not the appellant's purpose in making the statement or the Crown's purpose in leading it, but whether, considered objectively, it was in any way incriminatory; that the statement, although intended to be exculpatory, was incriminatory in that it put the appellant at the scene of the murder in the context of the evidence of several witnesses who said they saw only one youth there at the material time and in that it represented a significant change in the appellant's previously consistent account that he had been alone on the hill, and that it was a mixed statement and the jury should have been directed to that effect. What is said in paragraph [18] of the judgment of the Lord Justice Clerk is important. There he said:

"The point is a short one. In my opinion the question does not depend on the appellant's purpose in making the statement, nor on the Crown's purpose in leading evidence of it (McCutcheon at p 115C-D). The test is whether the statement, considered objectively, was in any way incriminatory in its effect. In my opinion, the statement, although intended to be exculpatory, was nonetheless incriminatory in three material respects, the significance of which had emerged at the trial. First, it put the appellant at the scene of the murder at the time at which it was being committed. [The Lord Justice Clerk thereafter adverted to several other circumstances.] Looked at in the light of the whole evidence these were materially incriminating considerations. I conclude therefore that the statement was a mixed statement and that the trial judge should have directed the jury to that effect and advised them as to its evidential implications."

[20] Looking at the terms of paragraph 24.64 of Criminal Procedure, Renton & Brown (6^th ed.) we find a reflection of the same view of the law. It is there said:

"It may be said that any statement which contains matter helpful to the Crown is a mixed statement, even if its intent is exculpatory, as where the accused admits to his presence at the scene of the crime only in order to set the scene for a description of how it was committed by someone else, or even if it helps the Crown only by way of discrediting other defence evidence."

In support of that proposition, with which we agree, the learned authors cite McIntosh v HM Advocate.

[21] Against this background of settled law, we are very surprised that the trial judge took the view that he did concerning the statements in question and gave the direction which we have narrated. His decision to take that course is difficult to understand. The direction which he gave is, in our opinion, a clear misdirection relating to the evidential significance of the statements under consideration. In the course of the debate before us, as we have made clear, the Crown accepted that the direction given was erroneous, and made no attempt to defend it.

[22] In his report to this court the trial judge, commenting on ground of appeal 1, said this:

"It is the case that I treated the various statements made by the appellant as exculpatory. In my opinion, that is exactly what they were as in none of them did the appellant accept that he had done anything to harm Abbie. I have difficulty in understanding how it can be maintained that these statements were mixed."

In taking the view which he has expressed, we can only suppose that the trial judge has not acquainted himself with the well-known authorities to which we have just referred, which he does not mention. To take the view that he did, that to render a statement otherwise exculpatory as mixed, it is necessary to find a direct admission of guilt for some part of the res gestae of the crime alleged, is plainly erroneous.

[23] Turning to the issue of whether the acknowledged misdirection relating to the evidential significance of the statements in question has been productive of a miscarriage of justice, we have, without difficulty, reached the conclusion that it has, for the following reasons. First, the statements emitted by the appellant, particularly the witness statement and the police interview, constituted the comprehensive version of events given by him relating to the circumstances leading to Abbie's death, including his denials of having caused harm to her, of which the jury was deprived. The statements also disclosed the attitude of the appellant to the baby Abbie and his happiness at her birth. Secondly, both the Crown and those defending the appellant at the trial understandably conducted the trial upon the basis that these statements were of importance and that they would be available, as evidence of the facts that they contained, to the jury. That common footing upon the basis of which the trial was conducted was destroyed by the misdirection. Thirdly, and this is a facet of the second reason mentioned above, the appellant was advised by his counsel that it was not necessary for him to give evidence because of the availability to the jury as evidence of the facts which they contained of the statements in question. The misdirection had the effect of preventing those exculpatory parts of the statements being set before the jury as vouched by the contents of the statements. Looking at all of these circumstances, we have no doubt that justice was not done so far as the appellant was concerned in the trial on account of the misdirection. For these reasons, we have reached the conclusion that the conviction of the appellant must be quashed. Having regard to that conclusion, it is unnecessary for us to express any view upon any of the other grounds of appeal and, in particular, grounds 17 and 18.