Man convicted of murdering his wife fails in ‘fresh evidence of diminished responsibility’ appeal

Lord Carloway

A man found guilty of murdering his wife by stabbing her 86 times after claiming a “black shadow” told him to do it has had a second appeal against his conviction refused.

David Lilburn, 52, admitted killing 43-year-old Ann in Paisley, Renfrewshire, in July 2007 but argued that a “miscarriage of justice” had occurred on the basis of “fresh evidence” which showed he was of “diminished responsibility” at the time of the incident.

However, the Criminal Appeal Court ruled that it could be said that the new evidence could have had a “material influence” on the jury’s consideration of the plea of diminished responsibility at the trial, following which the former accountant was sentenced to life imprisonment with a punishment part of 19 years.

The Lord Justice Clerk, Lord Carloway, sitting with Lady Dorrian and Lord Bracadale, heard that during his trial at the High Court in Glasgow in 2008, Lilburn’s lawyers maintained that he should be convicted of the lesser charge of culpable homicide on the grounds of diminished responsibility.

Although the defence expert psychiatrist, namely Dr Srikanth Nimmagadda, supported such a plea, “the other medical evidence was such that the jury rejected the ‘black shadow’ account and may well have formed an adverse view of the appellant’s credibility and reliability”.

An earlier appeal against conviction and sentence was refused but the appellant submitted an application to the Scottish Criminal Cases Review Commission (SCCRC) and the case was referred back to the High Court of Justiciary.

The note of appeal stated that “there now exists fresh evidence, namely the opinions of Dr Black, Dr Clark, Dr Pasupuleti, Dr Baird and Dr Bartlett, based on observations of the appellant post conviction as an inpatient in the State Hospital” at Carstairs, which demonstrated that at the relevant time his responsibility was diminished and there had been a miscarriage of justice.

The issue which required to be determined by the court was whether: (1) the new psychiatric opinions constitute evidence which was not heard at the trial; (2) there is a reasonable explanation for that evidence not having been so heard; and (3) if it is thus “fresh” evidence, it is of such a kind and quality that the jury would have found it of material assistance in determining the issue of diminished responsibility.

The appeal judges observed that there was now “a body of psychiatric evidence” which supported Dr Nimmagadda’s opinion at the trial, but the court concluded that the evidence would have rejected for the same reasons, as there was “a substantial countervailing view” that did not support the appellant’s contention that his mental state had had a substantial effect on his conduct at the time of the killing.

The court was reinforced in its conclusion on this matter by the view of the trial judge, who also considered that the new evidence “could not have produced a different verdict”.

“The trial judge’s impression in such matters should be regarded as one of some importance in the context of determining the central issue of whether a miscarriage of justice has occurred,” the Lord Justice Clerk said.

In any event, there was “no explanation, reasonable or otherwise”, as to why one or more of the new psychiatrists or the psychologist, most of whom were well known in criminal legal circles, could not have been instructed pre-trial to provide a second opinion in support of the appellant’s proposed defence.

Lord Carloway said: “A reasonable explanation for the new evidence not having been heard at the trial is an essential key, required to unlock the door to a successful appeal based on that evidence. In this appeal, that door remains locked.”

Ultimately, the appeal judges came to the view that it could not be said that the new evidence, when seen in the context of the known facts as spoken to in the testimony at trial, could have had a “material influence” on the jury’s consideration of diminished responsibility at the trial.

Delivering the opinion of the court, the Lord Justice Clerk said: “It is a striking feature of the case that, contrary to the accounts of the appellant’s mental state given by the new psychiatrists, there is no substantial body of evidence from which it can reasonably be concluded that the appellant was in a hypomanic state at the time of the killing…The appeal must therefore be refused.”

The judges added that had it been allowed, the effect would have been to quash the conviction and that since the evidence bearing upon diminished responsibility would have remained in conflict, “the only possible consequence of such a decision would have been a re-trial”.

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