APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 140
Lady Dorrian	Appeal No: XC597/12   NOTE OF REASONS   by   LADY DORRIAN   in   APPLICATION FOR EXTENSION OF TIME IN WHICH TO LODGE A NOTICE OF INTENTION TO APPEAL AGAINST CONVICTION   by   WENDY GRAHAM   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: Allan QC, Gianni; George Mathers and Co, Aberdeen

Respondent: Wade QC, AD; Crown Agent

 

20 September 2013

 

[1] The applicant was convicted of murder in December 2008. This is an application some five years later for an extension of time in which to lodge a notice of intention to appeal against conviction. Mr Allan recognised that it was for the applicant to show an adequate explanation for failure timeously to lodge an appeal, that the test is influenced by the subject matter of the appeal and, importantly, by whether there are in the courts assessment grounds of appeal which have a prospect of succeeding. The longer the period of delay, he submitted, the stronger need be the grounds.

[2] Despite the length at which they are set out in the application and accompanying proposed grounds, the grounds on which leave is sought are fairly simple, and are based on the alleged deficiency of those representing the applicant at trial.

[3] At the trial, a defence was advanced on the basis of diminished responsibility, based on the applicant's Emotionally Unstable Personality Disorder and relying on the evidence of two psychiatrists led by the crown, who, it is claimed in the application, were not supportive of such a defence. The argument is that at the time of the trial the applicant's advisers had available to them a further report from Dr Thomson of the State Hospital in which she considered that such a defence could be advanced, under reference to the case of Galbraith. It is also suggested in the written application that it is not clear that the Crown psychiatrists had the same test in mind, that this was not explored with them in evidence, and that the matter was not properly investigated. The result, it is said, is that the defence was not properly advanced. A further criticism, in the written application at any rate, is that the applicant's representatives did not obtain sufficient historical information to assist with a claim of Battered Person Syndrome.

[4] Additional material now obtained from Lothian & Borders Police indicates that on numerous occasions the police were called to domestic incidents involving the applicant and her ex‑husband, or later, the applicant and the deceased, which might, it is said, have assisted an argument based on Battered Person Syndrome had the matter been investigated by the applicant's then representatives.

[5] The very long period of time which has elapsed between the present agents being instructed in July 2009, and the presentation of this application, is explained by the need to carry out further investigations, obtain further reports and obtain legal aid sanction at different stages. It is submitted that it arises also from the efforts of the present agents, in what counsel described as a complex case, to meet the requirements of the case of Grant v HMA.

[6] This, it is said, provides an adequate explanation for the failure to lodge a notice of intention to appeal in time. It is also argued that in the circumstances the applicant has demonstrated something approaching a probability of success should the proposed grounds be advanced at an appeal hearing.

[7] I am afraid I am unable to agree with either of these propositions.

 

Delay

[8] Dealing first with the explanation for the delay, the present agents have been instructed since July 2009, over four years. The total delay is nearly five years. Despite assertions to the contrary, I do not consider the issues which arise in the present case to be particularly complicated, nor are they in particularly broad compass. If one considers the time line of the involvement of the present solicitors, there are numerous lengthy delays which are either not explained, or for which no adequate explanation is tendered. Nor do I accept that the requirements imposed on agents to meet the test in Grant might reasonably have led to such delay. Indeed, I am somewhat puzzled by the suggestion that Grant was not only in the forefront of the agents' minds but provides the reason for most of the delay, since it seems to me that the reason they were driven to seek to withdraw an earlier application last year was that they had not complied with the requirements of Grant.

[9] A delay between the grant of legal aid on 22 September 2009 and the first meeting with the client thereafter on 2 December of that year is explained on the basis of "pressure of business". The mandate to the former agents to release papers was sent on 4 December 2009: the papers were eventually uplifted by the present agents only on 30 July 2010. Various reminders to the former agents appear to have been more or less ignored: but that is no excuse for the present agents failing to take more direct action in relation to recovery of the papers and to be content with a period of delay of this magnitude. Once the papers are collected there is a further delay of three months before a further meeting with the client, explained on the basis of "assessing papers" and the alleged complexity of the matters involved. In my view the nature of the task involved can hardly justify such a delay. Some of the other delays which feature in the history may be explicable, for example on the basis that legal aid sanction was required for certain steps. What is less explicable is that a prior application was made in 2012 and was withdrawn on 24 October 2012 to enable agents to take three steps:

i to expand the history of events;

ii to obtain comment from the former legal team and

iii for grounds of appeal to be submitted with the application.

The first and third of these matters should have taken a couple of weeks at most. The second might reasonably be expected to take a bit longer, but despite an apparent cautioning from senior counsel in favour of dispatch, agents (a) waited nearly three weeks to write to the former agents and (b) contented themselves with one reminder in December and one in January.

[10] In the whole circumstances I am driven to the conclusion that the agents did not give this matter anything like the pressing amount of attention which it should have demanded; rather, a leisurely approach to the matter has been adopted and I do not think that there is any adequate explanation for the inordinate delay.

 

Merits

[11] Turning to what might be described as the merits of the matter, the submission is that the defence was not "properly" put before the jury. As is well known, there is a difference which requires to be recognised between a situation where the defence is simply not advanced and a situation in which tactical decisions are made as to the way in which the defence is put. In my view this case substantially falls into the latter category. It is quite clear from the parole report that counsel did present a defence of diminished responsibility, on the basis of the applicant's Emotionally Unstable Personality Disorder, but chose, for reasons which he has explained and which are fairly obvious, to do so through the medium of the witnesses led by the crown, rather than the witness who had prepared a report for the defence. It is suggested in the application that the crown witnesses were not supportive of such a defence, whereas the defence witness had been, and thus that to proceed in this way fell far below the standard to be expected of reasonably competent counsel. However, the assertion that the defence witness supported such a defence and the crown witnesses did not is one which does not survive scrutiny. Nor does the assertion that the defence witness understood Galbraith and the Crown witnesses did not.

[12] Dr Thomson was of the view that a defence of diminished responsibility could be advanced, which it was, but it is stretching a point considerably to suggest that she favoured such a defence. In fact, her position was that the appropriate diagnosis was of a poly substance dependence misuse and, with caution, that of Emotionally Unstable Personality Disorder.

[13] She was further of the view that a defence of diminished responsibility could be put forward on the basis of Emotionally Unstable Personality Disorder, only psychopathic disorder being specifically excluded in her understanding of Galbraith. There was, however, a very important caveat to her opinion: namely that the applicant's

"extensive use of substances on the day of the alleged offence with likely impairment of her judgement is the most relevant factor in this case... Her diagnosis of poly substance misuse is clearly relevant. I do not think this would be a successful defence."

 

[14] When one examines the position of the crown experts, the position seems little different. Dr Morris in his report had noted that the applicant had recently attended her father's funeral and opined that

"This, coupled with her major drug and alcohol problem and consumption of large amounts of illicit substances prior to the alleged incident appear significant in its causation. I was unable to find convincing evidence that she suffers from a major mental disorder such as severe depression, bipolar disorder or schizophrenia. The most prominent diagnosis currently is one of poly substance dependence"

 

[15] Dr Lenihan's report indicated that:

"The principal abnormality of mind in this case is dependence on alcohol and illicit drugs."

 

Quite rightly he did not opine one way or the other on the issue of diminished responsibility but commented that it was for the court to determine whether this dependence could be used to base a defence of diminished responsibility. In a comment which seems to accord with the views of Dr Thomson he went on to say:

"She had consumed significant quantities of alcohol, benzodiazepines and amphetamines on the day in question, meaning that the effect (if any) of any other mental disorder on her behaviour would be 'drowned out' by the effects of the alcohol and drugs".

 

He made a secondary diagnosis of Emotionally Unstable Personality Disorder, and, most importantly for present purposes, did not rule this out as a potential source of diminished responsibility, but noted that:

"The inclusion of such common and chronic conditions within the scope of diminished responsibility might have important policy implications which the court will no doubt be mindful of".

 

On both elements of the applicant's problems - her dependency and her personality disorder - he properly recognised that it was for the court to determine whether a defence of diminished responsibility could be advanced. He himself advanced no opinion one way or the other.

[16] Accordingly, it seems to me that not only is it incorrect to state that the evidence of the crown witnesses did not support such a defence whereas that of the defence expert did, but furthermore had the defence expert been led, the fundamental evidence on which the trial judge would have had to assess whether there was a basis for diminished responsibility would have been substantially the same.

[17] This leads me on to the issue relating to Galbraith. I do not think there is any basis for suggesting that the crown experts did not have an adequate understanding of Galbraith for the purpose of the evidence which they required to give. On the contrary, the report from Dr Lenihan appears to me to indicate a very good, and subtle, understanding of the effect of that decision. In any event, the question of whether the medical experts had a full understanding of the case of Galbraith and its consequences is in some respects entirely irrelevant. The decision whether the test for diminished responsibility has been met is not a medical one, and it is not one for the medical experts to take. The trial judge must decide whether evidence led in support of the plea discloses, at its highest, a basis on which the law could regard the accused's responsibility for his actions as being diminished. If it does not, in charging them the judge must withdraw the issue from the jury's consideration. In assessing these matters, the judge will be highly conscious of the case of Galbraith and will interpret the evidence accordingly. The trial judge considered the evidence in relation to the applicant's condition and concluded that there was no basis upon which diminished responsibility could be left to the jury. It is not suggested that he here erred in his approach.

[18] As the trial solicitor advocate observes in his note for this court, the issue of diminished responsibility requires to be looked at not only in the light of the psychiatric evidence, but in light of the evidence as a whole, which included reference to a text message sent by the applicant suggestive of a degree of malice towards the deceased, and the fact that the deceased suffered 10 stab wounds.

[19] Finally, it appears that additional material obtained from Lothian & Borders Police indicates that on numerous occasions the police were called to domestic incidents involving the applicant and her ex-husband, or later, the applicant and the deceased, some of which might provide assistance for a defence based on the existence of Battered Person Syndrome. However, it is also to be noted that during the period of her cohabitation with the deceased there is a note of a call from the applicant to the emergency team that "she feared that her temper was out of control and was worried that she would harm herself or her boyfriend", and further included reference to her having assaulted her partner, i.e. the deceased, with a knife on two occasions. The material which might have come to light in this way is therefore not all one sided.

[20] In conclusion I am not satisfied that the applicant has established anything approaching a probability of success.

[21] Accordingly I will refuse the application.