Adam Lundy v. Her Majesty’s Advocate [2018] HCJAC 3

Note of appeal against conviction and sentence:- The appellant was convicted after trial of a charge of murder relating to the death of John Kiltie in Girvan. Two co-accused, Allison and Goodwin, had also been charged with assaulting the deceased. The appellant appealed against his conviction. The circumstances were that the appellant had been drinking and playing music with friends at an address in Girvan. There was evidence of complaints from the deceased, who lived nearby, in relation to the noise. The deceased attended at the locus and there was an altercation in which the deceased was repeatedly stabbed and subsequently died. It was the appellant’s position, in evidence, that he acted in self-defence and he admitted striking the deceased with a knife 4 times after the deceased had attacked him with a baseball bat. A critical issue in the case and, in particular, the question of self-defence, was whether the deceased was in possession of a baseball bat at the material time. A baseball bat was subsequently recovered by the police from a cupboard within the locus which had contact blood staining on it. The blood stain produced a mixed DNA profile from at least 3 persons major and minor components were consistent with the DNA of the appellant and the householder at the locus and there were other unknown traces. The handle of the baseball bat was tested which revealed a complicated mix of DNA with traces from at least four individuals who could not be identified. There was also evidence of statements from both co-accused to the police, outwith the presence of the appellant, as such not evidence against the appellant, that the deceased was disarmed of the baseball bat and the bat was placed in the cupboard before any coming together of the deceased and the appellant. The appeal against conviction was based on the contention that there had been a miscarriage of justice as a result of inaccurate, misleading and improper comments made by the advocate depute in his speech to the jury, in particular:-. (1) he misled the jury by stating that no DNA of the deceased was on the bat; (2) he invited the jury to rely on the inadmissible content of statements by co- accused; and (3) he invited the jury to consider their verdict on sympathy grounds. It was submitted on behalf of the appellant that the advocate depute had misled the jury in stating that there was no DNA from the deceased on the baseball bat and whilst this was corrected by the trial judge no mention was made that it was the advocate depute who initially made the incorrect suggestion. Further, the advocate depute speculated about the absence of blood on the outside of the appellant’s left trouser leg with a view to undermining the appellant’s account of having been struck by the bat, however, this issue was never put to the forensic scientist by the advocate depute. It was further submitted on behalf of the appellant that the advocate depute had invited the jury to rely on the inadmissible statements taken from both co-accused that the baseball bat had been taken from the deceased and placed in a cupboard before the appellant stabbed him and the trial judge’s directions did not provide adequate directions to he jury to deal with the potential impact of the advocate depute’s comments. In addition, it was submitted on behalf of the appellant that the advocate depute invited the jury to consider their verdict on sympathetic grounds, having repeatedly made comments referring to the deceased’s family and background, for example, it was implied that the appellant and others had been taking drugs of which there was neither a charge on the indictment nor any evidence to support the suggestion. It was submitted the trial judge should have given directions beyond the standard directions on the issue of sympathy to rebalance what the advocate depute had said. It was submitted on behalf of the appellant that the cumulative effect of the various remarks by the advocate depute amounted to a miscarriage of justice. Making reference to P (K) v HMA 2017 HCJAC 57 it was submitted that the questions for the court were:- (1) Does the court consider that there was a prejudicial departure from good and proper practice on the part of the Crown?; (2) Were the directions given at the trial sufficient to prevent unfairness or a miscarriage of justice?; (3) Can the court be confident that, overall, the substance of the trial was fair?; and (4) Can the court be confident that any unfairness did not create a miscarriage of justice since it could not have affected the outcome? Having regard to what was said by the advocate depute under reference to these questions it was submitted that the appellant had been denied a fair trial and the unfairness created as a result of the advocate depute’s conduct was not adequately corrected by the trial judge. On behalf of the Crown it was conceded that there had been errors on the part of the advocate depute which amounted to a departure from good and proper practice and they related to relevant issues at the trial, however, it was submitted that the errors were capable of correction and that had been done by the trial judge in her charge to the jury. Here the court allowed the appeal and quashed the conviction. The court considered that the advocate depute’s speech contained repeated and prejudicial departures from good and proper practice and the cumulative effect of these was such, particularly in light of their extent and connection to a critical issue in the case, namely whether the deceased had in his possession a baseball bat, the court was unable to say that there had not been a miscarriage of justice. The court also observed that defence counsel in his speech to the jury had to deal with many of the prejudicial comments made by the advocate depute, and the court stated that the role of defence counsel is not to correct any errors in the Crown speech. By having to tailor the defence speech to meet the prejudicial comments of the advocate depute defence counsel was distracted from delivering his own speech as he was required to deal with the errors in the Crown speech. The court took the view that the trial judge’s directions to the jury did not adequately restore the balance between the Crown and the defence necessary to ensure a fair trial and the conviction was quashed.