Murderer fails in appeal against conviction over witness’s ‘prejudicial’ remarks

The appellant argued that the trial judge erred in refusing a defence submission to desert the trial diet pro loco et tempore, but the Appeal Court of the High Court of Justiciary ruled that there was no “miscarriage of justice” as the judge had given appropriate directions to the jury.

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Drummond Young heard that the appellant Steven Jackson was found guilty in December 2016 following a trial at the High Court in Glasgow of the murder of Kimberley Anne MacKenzie, and also convicted – along with his girlfriend Michelle Higgins – of attempting to defeat the ends of justice by dismembering the deceased’s body, cleaning the locus, and disposing of the body parts and clothing.

Volatile witness

Ms Higgins gave evidence that the appellant alone had assaulted the deceased in a “frenzied attack”, while the evidence of the appellant’s ex-wife, BW, was also significant, as she told the court that the appellant admitted that he had “cut someone up” and how he had disposed of the remains in various bins in Montrose.

It was predicted that BW might be a “volatile witness” who had the potential to reveal some “damning evidence” about the appellant; not least that he had admitted murdering her daughter’s boyfriend by injecting him with heroin between his toes.

She had referred to this incident in her police statement and also mentioned that he had committed robberies, blown up a factory and poured petrol through her letterbox.

With these dangers in mind, the advocate depute trod a very careful path in examination in chief to ensure that no additional information, which might be prejudicial to the appellant, was put before the jury.

However, the cross-examination by defence counsel began in a “robust” fashion and BW had complained that counsel’s manner was “abrupt” and “snipey”.

Prejudicial remarks

On being asked about certain Facebook communications with the appellant, she responded, “There is a reason why I initiated contact and you very well know it,” which was a reference to her daughter’s boyfriend’s death.

Later, when it was put to her that she was trying to “do down” the appellant, she said: “He’s the type of man to come after you. What about the guns under his floorboards and everything? He would shoot you. What about the grenade under his floorboards?… What about all the rest of the stuff that he does?”

Despite her outbursts and obvious volatility, counsel began questioning her about her assertion that she was terrified of the appellant, but she insisted that she was scared of him: “because he tried to, set us on fire. He tried to blow us up, All these things in the past, so, yes, I was very scared”.

When she was asked why it had taken her two days to go to the police about what the appellant had admitted, BW said that she had not thought that the appellant had been telling the truth because of his schizophrenic episodes, during which he told lies.

She had asked her mother for advice, and continued: “She thought it was a lie as well, because all he did was to read all these stupid books on criminals and what they want to do, and he fantasised. He used to … cut cats open and let them run away. He would skin them and let them run away and think it was funny. That’s the sort of man he is”.

Motion to desert

The appellant submitted that BW had made a number of remarks which were so prejudicial that the trial could not be conducted fairly, but the trial judge refused the motion to desert the diet pro loco et tempore.

She directed the jury to ignore any outbursts referring to “alleged conduct” by the first accused which did not form part of the charges on the indictment and that they had to reach their verdicts “solely on the evidence” that they had heard in court.

Ultimately, the appellant was convicted and sentenced to life imprisonment on charge 1 with a punishment part of 26 years and a concurrent sentence of eight years imprisonment on charge 2, while Ms Higgins was sentenced to eight years.

However, the appellant appealed against his conviction, arguing that the trial judge had erred in refusing the motion to desert.

It was submitted that BW’s remarks, which presented the appellant as “a man of violence, who possessed weapons, and was capable of gratuitous cruelty”, were so prejudicial that no direction from the judge could cure them.

No miscarriage of justice

Refusing the appeal, the judges explained that test for determining whether a trial should have been deserted was set out in Fraser v HM Advocate 2014 JC 115 and that the appeal court placed “considerable weight” on the views of the trial judge.

Delivering the opinion of the court, the Lord Justice General said: “It was for the trial judge to determine whether the remarks by BW had so compromised the prospects of a fair trial that desertion became imperative, if a potential miscarriage of justice were to be avoided.

“The trial judge has a considerable advantage over an appellate court in understanding the realities of the situation. She was best able to assess the likely, and possible, impact of the answers in light of all that had happened during the trial.

“The judge is afforded a wide discretion in deciding whether: (i) to ignore the offending evidence and do nothing, lest the matter be emphasised; (ii) to direct the jury to ignore that evidence and to advise them that they should do so because it has no bearing on the matter before them; or (iii) to desert the diet because of the inevitability of an unfair trial as a result.”

The court also observed that there was duty on both prosecutors and defence representatives to take care to frame questions properly to avoid “undesirable answers”.

Lord Carloway continued: “As was by analogy frankly acknowledged by the appellant’s counsel, if a person elects to prod a wasp’s bike, he is likely to get stung. That is a risk which defence counsel may face in many cases. He or she may not be open to criticism if he or she elects to adopt one mode of attack, but equally he or she cannot cry foul if the witness reacts in a predictable and damaging fashion.”

He added: “In this case, the offending remarks were made in the course of robust and, as the trial judge describes it, provocative cross-examination. Although the cross-examination was not calculated to insult or intimidate, the questioning was potentially upsetting. It had become clear that BW was reacting badly both to the manner of the questioning and to counsel.

“The judge made a number of interventions in an attempt to calm the proceedings… The court does not criticise counsel for that, it being a tactical decision for him to take, but the consequences in such circumstances can rarely be a desertion of the diet.

“In reaching her decision, the trial judge took into account all of the relevant factors, including the nature of the remarks, the manner in which they were elicited, the time that the appellant and Ms Higgins had been in custody, the point in the trial at which the motion was made, the level of potential prejudice to the appellant and the public interest in seeing the trial concluded.

“She reached a balanced and reasoned decision based upon these factors. The subsequent directions following the outbursts, which were repeated in the charge, were adequate to meet any potential prejudice to the appellant. No miscarriage of justice can be seen to have occurred and the appeal is refused.”