On 7 April 2010 at the High Court at Glasgow, Mr Jamieson was found guilty, after trial, on the charge of murdering his baby daughter by inflicting blunt force trauma to her head and body.
He appealed successfully in February, although the decision of the High Court comprising Lords Osborne, Eassie and Nimmo Smith has only now been published. The decision can be found at http://www.scotcourts.gov.uk/opinions/2011HCJAC58.html.
The appeal related to a technical area of law connected with the admissibility of statements alleged to have been made by the accused, and whether these were exculpatory, when they cannot be taken by the jury as evidence of anything said in them or mixed, containing material both exculpatory and incriminatory, when the defence are entitled to elicit and rely upon any part of that statement as qualifying, explaining or excusing the admission against interest.
The court referred to the decision in McCutcheon v HM Advocate 2002 SCCR 101 where a bench of 9 judges laid down the rules in regard to these matters. The Lord Justice General stated as follows:-
“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.”
The court referred to Criminal Procedure, Renton & Brown where 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.”
The court then, against what it called a background of settled law, expressed itself as “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.” This direction treated statements which both Crown and defence considered to be mixed statements as exculpatory.
They went on to say “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.”
In his report to the 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 a very strong statement for the Appeal Court the opinion goes on to say :
“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.”
interestingly, despite the Crown concession that the judge had erred, the appeal was opposed on the basis that despite the error, there had been no miscarriage of justice.
However, the Appeal court had no difficulty in finding that there had been a miscarriage of justice. They said:
“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.”
The conviction was quashed and authority granted for a new prosecution where Mr Jamieson maintains his plea of not guilty.