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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Gardiner v. Her Majesty's Advocate [2007] ScotHC HCJAC_14 (16 February 2007)
URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_14.html
Cite as: 2007 SCCR 379, 2007 GWD 28-486, [2007] ScotHC HCJAC_14, [2007] HCJAC 14

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice Clerk

Lord Osborne

Lord Johnston

 

 

 

 

 

 

 

 

 

 

[2007] HCJAC 14

Appeal No: XC739/05

 

OPINION OF THE COURT

 

delivered by LORD JOHNSTON

 

in

 

APPEAL AGAINST CONVICTION and SENTENCE

 

by

 

JOHN GARDINER

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

 

 

Act: Findlay, Q.C., Connor; Beltrami Answar, Glasgow

Alt: K. Stewart, A.D.; Crown Agent

 

16 February 2007

 

[1] The appellant originally faced an indictment containing three charges, the first one of which, being one of fraud, was dropped by the Crown. The other two were in the following terms:

"(2) on 4 October 2004 at 1 Sinclair Drive, Helensburgh or elsewhere to the Prosecutor unknown you did assault Margaret June Gardiner, your wife, residing there, repeatedly strike her on the head with an instrument to the Prosecutor unknown or by other means to the Prosecutor unknown did murder her and

(3) between 4 October 2004 and 3 December 2004, both dates inclusive, at 1 Sinclair Drive, Helensburgh, 1 Langton Crescent, Pollok, Helensburgh Police Office, Dumbarton Police Office and elsewhere with intent to defeat the ends of justice and to conceal your guilt in respect of charge (2) hereof, you did;

(a) on 4 or 5 October 2004 remove the body of said Margaret June

Gardiner from 1 Sinclair Drive, Helensburgh and transport it in the boot of motor vehicle registered number SB03 GHG to a location in Scotland to the Prosecutor unknown and conceal it there or otherwise dispose of her body;

(b) between 4 October 2004 and 15 October 2004, both dates inclusive, at

1 Sinclair Drive aforesaid, wash and clean the boot of said motor vehicle, a towel and clothing;

(c) between 4 October 2004 and 3 December 2004, both dates inclusive,

falsely state to members of her family, colleagues, friends and to police officers engaged in establishing her whereabouts that she had left the house at 1 Sinclair Drive aforesaid in possession of £500 of money and her passport and travelled to the South of England or France;

and

(d) between 6 October 2004 and 3 December 2004, both dates inclusive,

falsely state to said members of her family, friends and police officers that she had contacted you by mobile telephone and that you did not know her whereabouts;

and by these means you did attempt to conceal the commission of these crimes and to divert police enquiries from the investigation thereof and did attempt to pervert the course of justice."

[2] On 2 September 2005, after trial at the High Court in Paisley, the appellant was found guilty by a majority in respect of charge (2) as follows:

"on 4 October 2004 at 1 Sinclair Drive, Helensburgh or elsewhere to the prosecutor unknown you did assault Margaret June Gardiner, your wife, residing there by means to the prosecutor unknown did kill her".

He was found guilty of charge (3) in terms thereof.

[3] It is at once to be noted that the verdict of the jury in respect of charge (2) involved both deletions and a substantial amendment reducing the charge to culpable homicide.

[4] It is also to be noted that when the jury returned with their verdict the foreman indicated that they wished to return a verdict of culpable homicide, but there then ensued considerable discussions between counsel and the trial judge, mostly outwith the presence of the jury, before the actual terms of the verdict now recorded were agreed.

[5] It also has to be noted that a great deal of the averments in charge (3) were not disputed by the appellant at the trial in respect that he had accepted he had disposed of his wife's body, he said in the River Leven, but although that river was extensively searched, both on behalf of the Crown and the defence, no body was discovered nor has it ever been since that time. The other aspects of that charge were also not materially disputed

[6] However, the evidence revealed that at the locus, namely 1 Sinclair Drive, Helensburgh, fragments of bone were discovered which were identified in evidence as being internal to the skull. A part of a tooth was also found and there was evidence of blood staining in the house, although not on the steps in question to which reference will further be made. The appellant had extensively cleaned the house of blood staining after the death had occurred, however that may have been caused.

[7] Before the jury the Crown's position primarily was that the appellant had murdered his wife substantially by the means averred in the original charge, namely striking her on the head with sufficient force to kill her with some instrument. The appellant's position was disclosed initially in a recorded conversation between him and his daughter Fiona which took place in the police station at Dumbarton on 5 December 2004 and thereafter. On the same day he also gave a statement to the police which is recorded. Both documents were lodged as productions, namely Defence No. 4 and Crown No. 13 respectively.

[8] The conversation as recorded in writing by a police officer is in the following terms:

"Interview Room No. 1 at D.P.O. with Fiona Gardiner so she could speak to her father John Gardiner at his request.

Fiona: - 'Is Mum dead?'

John:- 'I've told the Police'

Fiona: - 'Are you going to tell me?'

John: - 'Yes she's dead, I didn't murder her, I killed her it was an accident'.

Fiona: - 'Where is she?'

John: - 'In the River Leven'

Fiona: - 'Where?'

John: - 'I've told the Police'

Fiona: - 'I don't care what you've told the Police tell me'

John: - 'The bridge going out from the roundabout, the first bridge'

Fiona: - 'When?'

John: - 'About two o'clock in the morning, the Tuesday morning'

Fiona: - 'What happened?'

John: - 'Mum came home at lunch time and we had a blazing row, she was making a sandwich and had a knife in her hand, she went for me, I thought she still had a knife'

Fiona: - 'What happened after that?'

John: - 'I turned her and pushed her and she fell down the kitchen steps'

Fiona: - 'How do you know she was dead?'

John: - 'She was dead'

Fiona: - 'You tell the police everything and your going to tell them the whole truth and there is going to be no more lies', Fiona then left quickly and upset".

As regards the police statement the relevant part is in the following terms:

"Margaret told me that she intended to phone up First National Bank to cancel the loan arrangement, I said she couldn't as I had already redeemed some of the cheques sent, when I said this Margaret flew into a rage, striking out at me with her right hand, I thought she still had the knife in her hand but I later found out she didn't as it was still lying beside the rolls.

I sidestepped her and gave her right hand a turn, Margaret continued past me and out the back door, crashing head first onto the concrete steps, blood seemed to just flow and flow and flow and I think it was then I checked Margaret's neck and wrist but couldn't find any pulse at all. I think it was then as well that I turned her head, the back of her head had just caved in like an egg shell. I could see bits. What looked like brain, there were bits and pieces on the steps as well then sat down on the steps and the first thing I thought was Bloody hell I have killed my wife. I don't honestly know how long I sat there or what was going through my head."

[9] The appellant gave evidence on his own behalf which is recorded by the trial judge in his report in the following terms:

"The appellant gave evidence on his own behalf. He was aged 58 and had been married for 34 years. He had been a submariner based at Faslane. He had been convicted only of motoring offences. After leaving the Navy he ended up massively in debt due largely to the excessive use of credit cards. He was getting his marching orders from Margaret who knew fine well he was using the credit cards. The loan he took out was to pay off the credit cards. He did forge her signature. She told him to. She knew about the loan. It came through.

They had an argument on the evening before Monday 4 October. She had opened the mail, seen the loan application and that it was not her signature. She said she now had a lever to get him to go. He had started looking for a flat. He was going to go on the Monday but she came unexpectedly at lunchtime when she met her death. His police statement was the truth. She said she was going to phone and cancel the loan. He said she could not as he had had part of the money. She said "you bastard". She came towards him. He thought she had a knife. He was near the open door. She rushed towards him and struck out. He turned her right hand. She went straight out the back door. There seemed to be blood everywhere. Her head was on the path and her body on the steps. She was lying on her back. He sat on the steps. He eventually checked her pulse. She was dead. He lifted her head. It was badly damaged over the left ear. He saw bone. It was a massive head injury. He thought he had killed her. He did not push her or force her out the door. He did not mean her any harm. He had done nothing to cause her to go out the open door.

He then moved her body to the bath. He wrapped a towel round her head. He cleaned up. He moved her body about 1.30/2am. He wrapped her in polythene and put her in the boot of her car. He drove to the bridge and put her in the water. He took the towel home and put it in the washing machine. Thereafter he persisted with the charade. In light of their verdict, the jury must have accepted at least part of that account."

[10] It again has to be immediately observed that in the three different explanations that the appellant gave, namely in the conversation with his daughter, the statement to the police and his evidence in court, the appellant adhered to the general position that there was an argument between him and his wife and that she did suffer her injury by falling down the back steps of the house. In the conversation with his daughter he admitted to pushing her. In the other two versions he indicated that he had come into contact with her as she came towards him by turning her right hand. On all three versions, however, as we have already indicated she was propelled down the steps hitting her head and suffering the fatal injuries.

[11] The judge also records that evidence was given by pathologists both on behalf of the Crown and the defence and that in particular Dr. Marjory Black indicated that a great deal of force would be required to cause the injury that would produce bone from inside the skull, albeit at a point where the skull was relatively weak and that such was not likely to happen simply by a fall from a standing height. Dr. Grieve who gave evidence for the defence did not rule that out, but it is clear that the jury were more than entitled to conclude that the degree of force necessary to render the injury fatal would require some additional propulsion from some source rather than simply a fall. It is important also to recognise the evidence of Dr. Sheardy which was highly relevant and founded on by the advocate depute in his speech to the jury. This aspect of the evidence plays an important part in our consideration of the case.

[12] Again it has to be noted that the version advanced by the appellant on the three different occasions substantially differed from that which the Crown sought to put before the jury, namely the use of an instrument to inflict the injuries on the deceased's skull. It follows that the only basis upon which the jury could bring in a verdict of culpable homicide was in relation to the version advanced on behalf of the defence, which the trial judge left open to the jury to consider. (See charge pages 13 and 14). It was described by the Crown as a backup position but the Crown essentially maintained their support of the charge as originally brought.

[13] Against that background the appellant lodged four grounds of appeal in the following terms:

"1. In terms of Charge 2, the appellant was indicted to the effect that he

did assault his wife, Margaret June Gardiner by repeatedly striking her on the head with an instrument to the Prosecutor unknown or by other means to the Prosecutor unknown murdering her. The final verdict delivered by the jury in respect of this charge was guilty by majority of the lesser offence of culpable homicide under deletion of the words 'repeatedly strike her on the head with an instrument to the prosecutor unknown', deletion of the word 'other' and substitution of the word 'kill' for the word 'murder'.

This was contrary to the position presented by the Crown which was to the effect that the appellant had indeed struck his wife repeatedly with some unknown blunt instrument. By its verdict the jury indicated that it had rejected the Crown position.

In his address to the jury, the Advocate Depute adopted what can only be described as a back up position. This was to the effect that if the jury accepted the account of the pannel to the effect that his wife had made some form of lunge at him and in steering her past him the pannel had pushed her towards an open door as a result of which she fell down stairs fracturing her skull and causing her death, this was a form of assault and the death was culpable. The jury was not entitled to bring back a verdict of culpable homicide based on this proposition as there was insufficient evidence to indicate the necessary mens rea on the part of the appellant.

Furthermore, the jury by its verdict deleted the whole specification of the charge libelled. Against the background of the evidence in this case, the jury was not entitled to return a verdict of culpable homicide in the above terms.

2. The directions given by the learned Judge at p70 to p71 of his charge

were misconceived. Against the background of the evidence, the learned Judge ought not to have directed the jury in these terms. He may have inadvertently pointed the jury in the direction of a verdict which was not open to it.

3. The trial judge erred in failing to direct the jury that if it rejected the

explanation advanced by the Crown as to the means by which Margaret June Gardiner died, then it was bound to acquit the accused.

4. The trial judge ought to have directed the jury that if it accepted the

evidence given by the accused or if it raised a reasonable doubt it was obliged to acquit Reference is made to page 6."

[14] It is to be noted that grounds 2, 3 and 4 all related to alleged misdirections in respect of which Mr. Findlay maintained on behalf of the appellant only grounds 3 and 4, but his principal position before this court related to ground of appeal 1.

[15] In essence he argued that upon the version advanced by the appellant in each of the statements and in the witness box, the admissions so far as they went did not disclose any unlawful act which would render the subsequent death capable of being categorised as culpable homicide. The proper construction of the version advanced on behalf of the appellant was that the death was accidental and that there was certainly no evil intent on the part of the appellant which would warrant the jury determining that an assault had taken place. He submitted that it was plain the jury had rejected the Crown's principal position and were advancing their position solely upon the evidence of the appellant. The fact that there was admitted physical contact on any of the versions advanced by the appellant did not categorise such contact as an assault, more to be likened to an accidental collision between persons in a street or, as Mr. Findlay put it, at an airport busy with people. While he did not go so far as to categorise the jury's verdict as perverse, essentially he submitted that no reasonable jury should have concluded that an assault had taken place on the versions of events put forward by the appellant, however they were scrutinised. Again Mr. Findlay did not go so far as to suggest that the jury could not bring in a verdict of culpable homicide on a version of events that was never libelled. However, in effect, his submission was they were not entitled to categorise the conduct of the appellant on his own admissions as amounting to an assault in law on his wife, albeit with no intention to kill. In any event it was submitted that assuming it could be categorised as an assault on the appellant's own version there was no corroboration of any evil intent on his behalf.

[16] With regard to the now remaining grounds of appeal relating to alleged misdirection Mr. Findlay did little more than simply adhere to their terms, pointing to what he regarded as inadequacies in the charge in each respect, the inadequacies being that of omission rather than misdirection.

[17] In reply the advocate depute referred again to the conversation recorded between the appellant and his daughter, as a reference or admission, to the word "pushed". That, he submitted, was sufficient to support an entitlement of the jury to consider that an assault, albeit a very minor one, had taken place with catastrophic consequences. The trial judge had correctly left the issue to the jury who had plainly accepted in principle the version of events advanced on behalf of the appellant. In support of the verdict of culpable homicide he referred us to Hartley v H.M. Advocate 1989 S.L.T. 135 and Lourie v H.M. Advocate 1988 S.S.C.R. 634. He also made reference to Burnett's Treaties on the Criminal Law of Scotland, page 26, where various examples of the crime of culpable homicide are stated, albeit in an historical context.

[18] It was important, submitted the advocate depute, to recognise the degree of force that the pathologists were able to divine from the miniscule evidence of bone and tooth, the body having never been recovered to make a proper examination practicable. However, that, he submitted, indicated a contribution by propulsion or momentum from the actings of the appellant to eliminate the notion that the deceased had died simply from an unassisted fall down the steps. He relied heavily on the evidence of Dr. Marjory Black, as recorded by the judge in his report.

[19] As far as corroboration was concerned, under reference to H.M. Advocate v Fox 1998 S.C.C.R. 115 corroboration was capable of being found by the jury firstly from that fact, namely the increased momentum or propulsion that would be required to cause the fatal injury, there being no other person conceivably involved in the incident than the appellant and his wife, but secondly and equally importantly the conduct of the appellant after the event, namely initially endeavouring to cover up the evidence of blood staining and the like; not going to any authority for help or explanation and, on his own admission, disposing of the body together with a campaign of deceit and cover up. All of these factors were sufficient to support a view of a guilty mind reflecting his responsibility for his wife's death and the way it had come about. At the end of the day the advocate depute submitted there was sufficient evidence to support a verdict of culpable homicide by corroborated evidence.

[20] As regards the supplementary grounds of appeal alleging misdirection the advocate depute's position was that in respect of the general directions given by the trial judge as to reasonable doubt and the more particular ones as regards accident, on page 11, and the passage already referred to on pages 13 and 14, the trial judge had adequately left the matter to the jury, albeit he had not rehearsed the evidence.

[21] Before dealing with the main aspect of this appeal, namely in relation to ground of appeal No. 1, we are satisfied that the charge to the jury does not disclose any omission or misdirection such as to render the claim of misdirection to the jury viable. The judge does raise the question of reasonable doubt in general terms and also, more particularly, in the context of what he says on pages 13 and 14 with regard to culpable homicide. He also in passing refers to the possibility of accident on page 11. While the charge could be described as brief, having regard to the length of the trial, we do not consider it to be defective in any way as to disqualify or affect the validity of the jury's verdict.

[22] The much more important point relates to the main submission by Mr. Findlay as to the validity of the classification of assault based on the accused's own admissions leading to culpable homicide, and thereafter the issue of corroboration.

[23] It must be emphasised that the approach to this court to this issue is restricted to or extends only to the question of whether or not the jury were entitled, upon the evidence, to bring in the verdict that they duly did of culpable homicide. This places a high burden on the appellant's position before this court which in general terms would have in reality to be predicated on the contention that no reasonable jury could have brought in such a verdict upon the evidence before them, even if that is not categorised as perversity. At the end of the day Mr. Findlay did not shrink from that proposition.

[24] Against that background it is our opinion that the evidence relied on by the Crown, particularly having regard to the phrase used by the appellant during his conversation with his daughter, namely "pushed", coupled with the pathological evidence as to the degree of force necessary to inflict the type of injury that would produce bone from inside the skull would be likely to require an increased momentum or propulsion other than a mere fall, supports the position that the jury were entitled to conclude that an assault had taken place, there being no issue of self-defence.

[25] We are further satisfied that the evidence of the pathologists and particularly Dr. Black again entitled the jury to consider that there was corroboration of an assault having regard to the consequences and the likely cause of them in terms of injury, again having regard to the view that violence additional to that from a mere fall was required to achieve the actual contributing results, namely death. Equally, we are of the view that the conduct of the appellant after the event, namely clearing up the house to the best of his ability, disposing of the body, not contacting any authority for either help or to give an explanation and indeed delaying any question of alarm or concern for some considerable time all point to a guilty mind, which again would entitle the jury to consider that that was consistent, or capable of being consistent, with an assault (Fox supra), causing or contributing to the death.

[26] For these reasons we are satisfied that, against the background of entitlement, the jury were entitled to bring in a verdict of culpable homicide as they did, notwithstanding the departure from the libel as originally presented by the Crown. Once the matter was left open to the jury, which the trial judge was not criticised for so doing, the issue of culpable homicide was at large for them to consider.

[27] In these circumstances we are of the view that this appeal cannot be sustained and it will be refused.

[28] There remains the question of the appeal against sentence in respect of both charges and the case will be continued for consideration of those issues.

 


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