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THE MEDICO-LEGAL SOCIETY PROCEEDINGS at a MEETING held at the Royal Society of Medicine, Wimpole Street, London, W.1. on Thursday, 8th April, 1976. In the chair the President, Sir Norman Skelhorn, KBE, QC.

THE SALISBURY CRAGS MURDER H.M. Advocate v Ernst Dumoulin F. w. F. O'Brien, Esq., QC, Sherif} Principal of North Strathclyde. THE CHAIRMAN: This evening we are to have the pleasure of being addressed by Mr. O'Brien, QC, Sheriff Principal of North Strathclyde, on the Salisbury Crags Murder. I am sure we are all looking forward to learning something of how, in foreign parts known as "Scotland", they dispose of wives. (Applause) MR. F. W. F. O'BRIEN: Mr. President, ladies and gentlemen, when I first received instructions to defend Ernst Dumoulin three years ago I little imagined that I would find myself in London tonight addressing this learned Society. I am conscious of the honour you have paid me in inviting me to speak to you and I thank you for the opportunity which you have given me. lt was suggested to me that you would wish to hear something of Scottish criminal procedure which differs in many respects, I gather, from English and accordingly I shall draw attention to procedural matters which I hope may be of some interest. I cannot forget that your main interest must be in medico-legal matters and, while HM Advocate v Dumoulin will never find a place in any text book on medical jurisprudence, I propose to highlight the forensic evidence which formed an interesting chapter in the trial. On 28th January, 1973, I found myself driving to Saughton Prison in Edinburgh for the first of many consultations I was to have with Ernst Dumoulin. My initial knowledge of the circumstances had been sparse but intriguing-a newly-wed couple on the top of Salisbury Crags, each having taken out high insurances on the life of the other. It was the classical situation of the fiction writer. Who gave the first push and how could the Crown prove that it was the survivor? Real life, unfortunately, never works out as fiction writers would have it and I was to discover that there was more to the Crown case than policies of insurance. My first immpression of Dumoulin was of a well-mannered young man, well spoken and looking incongruous in his ill-fitting prison clothing. For one in the predicament in which he found himself he was well composed. Indeed, in the face of the many questions which had to be put to him on many occasions by his counsel and his solicitor, he retained his composure. Once, and once only, did he seem to lose it and I will revert to that later. Ernst Dumoulin was born in Minden, West Germany, in June 1951. When he was about a year old his parents moved to Rotterdam. They stayed in Holland until he was about eight years old and then moved back to Germany. On leaving school he attended a commercial college and became a trainee

III bank assistant. His father was Dutch and had spent some time in a concentration camp during the war; he was a welfare worker at a home for handicapped children in 1972. Before this he had been an insurance agent for many years. Ernst Dumoulin was engaged to be married when he was 20 years old but, in January 1972, the engagement was broken off. In April of that year he moved to Andernach where he worked in a bank. In July he decided to advertise in a newspaper for a wife and a girl called Helga Konrad answered his advertisement. Helga, who was born on 16th June 1954, was then 18 years old. The prospect of marrying Dumoulin seems to have appealed to Helga, but not to her family who expressed their opposition to the marriage. About the middle of September 1972 Dumoulin bought a new Fiat car. He traded in a used car in part payment and signed a cheque for 2,495 deutschmarks. There were insufficient funds in his account to meet the cheque and it was dishonoured. In the meantime, he had driven his new car to the Konrads' farm. Helga had asked her father for permission to go for a short run in the car and, when he reluctantly consented, she waved goodbye to him, never to return. The couple drove to France where they sold the car and used the proceeds to travel by air to London. As a result of a chance meeting in the plane, Dumoulin decided that they would travel on to Edinburgh where it would be easier for them to be married under Scottish marriage laws. On 19th September 1972 they took up residence in a small boarding house in Edinburgh to obtain the residential qualification. The next day, Dumoulin deposited £250 in a joint deposit account with the Bank of Nova Scotia in Princes Street and made inquiries about borrowing a sum of money in the region of £10,000. He informed the manager that he could obtain the necessary securities from Germany. Two days later the couple had an interview with the area manager of the Scottish Life Assurance Company and filled up proposal forms for endowment insurance to the extent of £100,000 on the lives of each of them. Dumoulin told the manager that he had been a financial consultant in Germany and was proposing to set up in Edinburgh as a financial adviser. Soon after the couple had departed, the Scottish Life Assurance Company had second thoughts and decided not to handle the proposed insurances. Instead they arranged, through an insurance broker, for the matter to be taken up by Hambro Life Assurance Company. On 28th September, 1972, a meeting took place in the Caledonian Hotel in Edinburgh. It was attended by a Mr. Syer of Hambro's and by representatives of the Scottish Life Assurance Company, as well as Dumoulin and his fiancee. Dumoulin and Helga Konrad each signed four applications for insurance. The total sum insured on Helga's life was £206,184, which would be doubled in the event of her accidental death. The total insured on Dumoulin's own life was £190,480, which would also be doubled in the event of his accidental death. The aggregate premium to be paid in respect of all the policies was £443,68 per month, or £5,324 per annum. Dumoulin signed a cheque for £221,85 being one half of the first premium and arrangements were made for the couple to be medically examined. With these arrangements made, Dumoulin went ahead to settle the date of his wedding. He fixed upon Friday, 13th October, and at 10.30 a.m. on that fateful day the couple were married in a Registrar's office in Edinburgh,

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Dumoulin describing himself as a financial adviser. In the afternoon he took his bride for a walk in the Queen's Park where they climbed to the top of Salisbury Crags and enjoyed the view across the city. According to Dumoulin, Helga suggested that they go back and repeat the experience in the evening. There is no doubt that they did so, between about 8 o'clock and 9 o'clock. It was Helga's last walk. Her body was found shortly after 9 o'clock on what is called the Radical Road at a point about 130 feet below the highest part of the Crags. The truth of what happened at the top of the Crags that evening is known only to Dumoulin himself. There was dispute as to exactly where Helga fell from, but it was certainly within the region of that picture-that is the top of the Crags. (see p. 115). The immediate subsequent events can be described shortly. Dumoulin was seen by many witnesses about 9 p.m. near the road which encircles the Queen's Park. That is the one I pointed out. They all spoke of him as being very distressed and calling out "Ambulance! Ambulance! My wife has fallen." He was described variously as "very agitated", "in a state of shock", "hysterical" and "very upset". A police officer described him as "crying and shaking". A young housewife said he was "shivering uncontrollably". After treatment for a minor injury at the Royal Infirmary and being interviewed by the police, he returned to his lodgings. His landlady described him as "dazed" and she said that in the morning he asked if he could playa record entitled "Love Story" which had been a favourite of his wife's. On Sunday, 15th October, he telephoned Helga's father in Germany and told him that he had married Helga. When Herr Konrad asked where Helga was he replied "She is in heaven". On the same day an emergency meeting took place between Dumoulin and Mr. Syer in the Grosvenor Hotel, Edinburgh. Dumoulin asked Mr. Syer whether the life insurance proposals which he had signed would be made public or whether they could be torn up. Mr. Syer went away to think about this and in the event he decided to inform the police. The result was Dumoulin's arrest on Monday, 16th October, 1972. In the presence of his solicitor, Dumoulin was cautioned and charged with the murder of his wife. In answer to the charge he made a statement in German which was translated as follows: "I did push my wife so that she fell down the cliffs. I did not intend to murder her or with intent to gain money. I am no murderer." He was then asked if he wished to make a statement in English and he repeated in English: "I have pushed my wife that she fell down. I am not a murderer. I did not do it as a murder." This set the stage for Dumoulin's subsequent trial and it would perhaps be convenient to deal with the procedural steps which lead up to a trial of an accused person in Scotland. To understand Scottish criminal procedure it is necessary to know something about the structure of the criminal authorities. The Lord Advocate is responsible for all criminal prosecutions in Scotland. Along with the Solicitor General he is one of the two law officers. He grants his commission to a number of advocates depute to carry through prosecutions in his name. He also appoints the Crown Agent who is a permanent official and who is responsible for the administration of the Procurator Fiscal Service in Scotland. There is a Procurator Fiscal attached to each Sheriff Court in the country

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and it is his duty to investigate crime and to prosecute it in the Sheriff Court. All prosecutions are either under summary procedure or solemn procedure. Summary procedure proceeds upon a Complaint at the instance of the Procurator Fiscal; solemn procedure is at the instance of the Lord Advocate and proceeds upon an Indictment. There is no right to a jury trial in Scotland and, if it is decided to prosecute summarily, the accused is dealt with by a Sheriff sitting alone. If it is decided to prosecute under solemn procedure the accused will appear either before a Sheriff sitting with a jury or before a High Court Judge sitting with a jury. The Procurator Fiscal may in his discretion prosecute a wide variety of lesser offences summarily. In the case of more serious offences the papers are sent to the Crown Office and an advocate depute decides whether to prosecute summarily or by solemn procedure. He may, if he thinks it right, order no prosecution in the event of the evidence being insufficient. As in any other country, criminal proceedings begin with a police investigation. Statements are taken by the police who do not conduct any prosecution themselves. The statements are referred to the Procurator Fiscal who will later precognose the witnesses himself. He will do so either by going to see them or, more commonly, by citing them to attend at his office. A precognition, as it is called, is not a signed statement and it may not be used in evidence. It is simply an account of the witness's evidence as recorded by the Procurator Fiscal. In a murder investigation the Procurator Fiscal will normally be involved at the earliest stage and, in due course, he will pass on the precognitions he has taken to the Crown Office. The accused's first appearance in court is on petition when he appears before the Sheriff in chambers. The charge is read over to him and, if necessary, explained to him. He may then, if he wishes, make a declaration but, in practice, rarely does. Originally an accused person was required to make a declaration. This stemmed from the days when the accused was not a competent witness in his own defence. Since 1908 an accused person has been entitled to decline to give a declaration and, as he has been free to give evidence or not since a passing of the Criminal Evidence Act, 1898, the practice of giving a declaration has almost died out. If no declaration is made, the accused's appearance on petition is purely formal. He is either committed "for further examination"-that is to say for further inquiries to be made-or, if the indictment has been served, he is committed until he is liberated in due course of law. This is called full committal. This stage is of importance to us because it is from that date that his 110 days begins to run. lt may perhaps horrify some of you to learn that, although England gave the great principles of Magna Carta to the world, they have not yet reached Scotland. We have no proceedings for habeas corpus. Instead we have a statutory provision which provides that, if a man has been committed to prison to await trial, he will go free and may never again be prosecuted in respect of the offence for which he has been put in prison, unless his trial has been completed within 110 days of his full committal. Before passing to the next stage in the procedure, I pause to note that all that has happened so far has taken place behind closed doors. No reporters are present when an accused person appears in chambers on petition. In Scotland there is no question of any pre-trial hearing before a magistrate or

114 anyone else. When the evidence is led at an accused's trial, it becomes public for the first time. I am afraid we do not make it very easy for the press to publish anything which for any reason we consider to be liable to prevent an accused from obtaining a fair trial and we still take a firm line so far as photographs of an accused person are concerned. They are not supposed to be published until after the trial is over and of course in Dumoulin's trial I was horrified to be presented with a photograph of Dumoulin which had, I think, appeared in the Daily Mail. I had to see the Judge in chambers and show it to him. In that trial it was purely academic because no question of identification arose. For that reason, the Judge agreed that for once there were quite enough things to worry about and that it would be better to turn a blind eye to this particular photograph. The first time the accused person appears in court in public is at what is called the first diet. He is then called upon to plead guilty or not guilty to the indictment. If he has a special defence he must state it then. A special defence is either a defence of alibi, of self defence, of impeachment-that is to say, maintaining that another named person committed the crime-or that the accused was insane at the time of the offence. These are all special defences. Should there be an objection to the competence or relevance of the indictment (and this does not very often happen) this must be intimated at the first diet. However, as the diet is before a sheriff and, as the competence or relevancy of the indictment in a High Court trial must be decided by a high court judge, the legal arguments are reserved until the next diet. All matters relating to bail and legal aid will normally have been dealt with by this time. Bail is not allowed in a charge of murder but, in the case of lesser crimes, bail is normally allowed. For over 400 years there has been a tradition among Scottish advocates and solicitors that a person accused of serious crime should have the benefit of free representation if he did not have the means to pay for his own defence and, under modern practice, legal aid is normally granted. No exception was made in the case of Dumoulin, a foreigner, who had spent most of his brief residence in Scotland in Saughton Gaol. The second diet, or trial diet, which must take place not less than nine days after the first diet, consists of the trial of the accused before a judge and jury. Where there are objections to the competence or relevancy of the indictment, as happened in Dumoulin's trial, these are disposed of as soon as the second diet is called. If they are repelled, the trial proceeds immediately. Dumoulin's trial began in the High Court in Edinburgh on 23 January, 1973. At the outset I intimated that the accused was adhering to his plea of not guilty and to a plea of self defence which had been tendered at the first diet. To the annoyance of the press who were waiting to hear graphic evidence of an alleged murder on Salisbury Crags, the first morning was taken up with legal arguments as to the competence and relevance of parts of the indictment. The reason for this is clear if one looks at the indictment. Although there were only two charges in the indictment, namely, that the accused attempted to induce the Bank of Nova Scotia in Edinburgh to lend him £10,000 by falsely pretending that he could produce securities; and, secondly, that having effected insurances on the life of Helga Konrad, and having married her, he murdered her, these charges were preceded by a narrative alleging the fraudulent purchase of a car in Germany. We main-

115 tained that the parts of the indictment relating to an offence in Germany were incompetent because there was no jurisdiction to try the offence in Scotland and that, in any event, they were irrelevant as having no real bearing on the alleged insurance fraud. We submitted further that the charge of attempted fraud upon the Bank of Nova Scotia was irrelevant. We were concerned with the prejudicial effect which this kind of evidence would be bound to have on the jury but, after lengthy argument, both objections were repelled by the presiding judge. The way was now clear for the trial to commence. On this occasion it fell to the Judge to swear in not only the official shorthand writers, but also two interpreters. Although Dumoulin spoke some English, I thought the charges he faced were too serious to take the risk of him misunderstanding, or failing to understand properly, any of the evidence. The next step was for the Clerk of Court to empanel the jury. He began by handing to the Crown and to the defence the List of Assize containing the names of 60 citizens cited to attend for jury service. This is the first time the identities of these persons are known to the accused and his advisers. The Crown and the defence are each entitled to five objections without giving any reason and, after about 10 minutes, in which only one objection had been used, 15 jurors were empanelled and sworn in the archaic form of the oath that they would "truth say and no truth conceal so far as they were to pass at this Assize." Copies of the indictment and of the special defence were then made available to the jurors. No question of previous convictions arose in Dumoulin's case but perhaps I should mention at this stage that in Scotland neither the jury nor the Judge is allowed to know of an accused's previous convictions until after he has been convicted. With the jury empanelled the first Crown witness entered the witness box. There is no opening statement for the prosecution nor is there, for that matter, an opening statement for the defence. In the absence of an explanatory statement the Crown has to present its evidence in an intelligible order to enable its case to become clear to the jury as soon as possible. The Advocate Depute began by leading evidence from Helga's father and from other witnesses from Germany who could speak to the fraudulent purchase of the car with a cheque which could not be honoured. Witnesses from Edinburgh followed-the proprietors of the boarding house where the couple lived, the registrar who married them, the manager of the Nova Scotia Bank, witnesses from the Scottish Life Assurance Company and Hambro's Life Assurance Company, witnesses who had seen Dumoulin in the Queen's Park immediately after the tragedy, forensic experts, police witnesses and others. The trial lasted ten days and it would be pointless and tedious to recount more than a fraction of it. Of the evidence for the Crown one aspect seemed to me important from the defence point of view and that was the evidence of certain witnesses speaking to the insurances. It was no great feat of cross-examination, obviously, to elicit from the legal director of Hambro's that the company were not liable since the application had never been completed but it became increasingly clear, from all the insurance witnesses and from a careful examination of all the relevant documentary evidence that none of the policies had reached the stage of becoming effective. The question came to be whether Dumoulin wrongly

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imagined them to have been effective. That was why, from our point of view, the most important evidence was that of Mr. Syer, who had carried out the negotiations on behalf of Hambro's. In answer to the Presiding Judge, Lord Wheatley, he stated that it had been made quite clear to Dumoulin that until certain matters had been attended to after his marriage the policies would not be operative and he could see no reason why Dumoulin should think otherwise. To my mind, that left nothing of the criminal purpose which was the essence of the indictment. No one commits murder to gain money from insurance policies which he knows have not come into effect. But unfortunately, my client had other and, as he thought, better ideas when the time came for him to give his evidence. The other part of the Crown case which might be of interest to your society is the forensic evidence. This was given by Dr. Hillsdon Smith, a lecturer in forensic medicine at Edinburgh University, and by Dr. Nagle, a lecturer in pathology and forensic medicine at Edinburgh University. Both had carried out a post mortem examination on the deceased on 16th October. The main injuries which they recorded were: (1) The whole of the vault of the skull was shattered, as also was the base, with fractures of the cheek bones and brain matter protruding from the scalp. (2) A fracture dislocation of the right ankle and a severe compound fracture of the left ankle. (3) Fractures of three ribs (4) A fracture of the spinal column at the fifth and sixth vertebrae. They expressed the opinion "that death was due to multiple injuries, including severe fractures of the skull with extensive cerebral injury, and a fracture of the thoracic spine, associated with a fall from a height." Perhaps it might be helpful if I showed a slide. These are the Crags. That is the point where the fall took place; at the bottom of the picture, or near it, is the Radical Road. I do not know if you can discern four small posts, but that is where the body was found. The question was where did it come from, from the top. You see the kind of terrain that there was. In evidence Dr. Hillsdon Smith said that the fracture of the spine was caused by the body "jack-knifing" on impact-an impact which involved the head. He did not associate the ankle injuries with the same impact. They were consistent with striking a rock on the way down. Since there were no referred injuries, he thought they were caused by a fall of more than 10 feet but less than 20 feet. He put forward the hypothesis that the girl went over the cliff feet first, landed on her feet on a particular ledge about 11 feet down and was the "springboarded out" and landed head first on a grassy bank near the foot of the crags. This, he claimed, was consistent with her having been pushed. In cross-examination he conceded that the injuries were also consistent with other possibilities. He had not tested his hypothesis experimentally, nor had he made any calculations as to the angle of the cliff. (Laughter) Dr. Nagle expressed the view that the body descended in an "arc-like" fashion, striking a rock outcrop, and bouncing down to a grassy bank. The rock he thought, acted like a springboard, causing the body "to resume the formerly interrupted arc". He agreed that the first impact would be when the girl's feet struck the rock outcrop, but considered it more likely that she somersaulted than that she went over the edge feet first. In his opinion the injuries to her ankles suggested a fall of about 30 feet, and he pinpointed a

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ledge 28 feet 2 inches from the rim of the cliff. From there she would bounce off, again in an arc-like fashion, until she struck the grassy bank 70-80 feet below head first. On his theory the girl's body went into an are, either, he said, because she took a running jump, or because she received a push of some violence above waist level. While the theories of both forensic experts were designed to lead to the same conclusion, that the girl started her fall as a result of a push, it is plain that their routes to this destination diverged to a marked degree. Dr. Hillsdon Smith's hypothesis, as he called it, began with a downward drop, feet first, while Dr. Nagle postulated a somersault. From this it followed that they chose different ledges, or rock outcrops, for the site of the injuries to the girl's ankles. Dr. Hillsdon Smith found a ledge only 11 feet down; Dr. Nagle one 28 feet 2 inches down. Both founded on the same injuries to support their differing theories, but while the absence of any referred injuries signified to Dr. Hilldon-Smith that the initial fall could not have been more than 20 feet, Dr. Nagle was no less confident that the injuries pointed to a fall of 30 feet. Their only real agreement was that the ankle injuries were probably caused by landing feet first on a ledge. Their problem was that there were too many ledges in the face of Salisbury Crags from which to choose. It is no part of defence counsel's function to cover up discrepancies in the Crown case and I am conscious that I may still be over-critical of the medical evidence and of the theories which the forensic experts advanced. It is not, however, unfair to point out that their theories were produced at the instigation of the Crown at a very late stage. Dr. Nagle made a spectacular descent of the Crags, suspended on the end of a rope, with the cameras of the press trained upon him, several days after the trial had begun. To reach a conclusion to which one is led by an objective consideration of the factual evidence is one thing but to start off with a hypothesis and then select only evidence which is consistent with the hypothesis, as both the eminent forensic experts seemed to me to be doing, is another, and at the end of the day leads nowhere. It is hardly surprising that when Dr. Hillsdon Smith was asked at the end of his evidence by Lord Wheatley: "What is your view as to what happened?" he replied "I don't know. I don't think it was a slip. That is the only thing I can be confident about". The Crown case ended late on the last day of January and Dumoulin took the oath in the witness box first thing the next morning. He made little attempt to dispute his transactions in Germany or, indeed, what had happened in Edinburgh prior to the day of his wedding. He confessed that he had planned an insurance fraud. His idea was to insure both Helga's life and his own for very large sums. Later he was going to disappear and Helga would claim the money. They had visited Cramond Island, an island in the Firth of Forth on the outskirts of Edinburgh, and he thought he could disappear from there, having left some of his clothing on the island. The insurance which was proposed on Helga's life was what he called an "alibi". It was apparently valid (he used the German word "scheinbar") but was not in fact valid because he had allowed Helga to sign "Dumoulin" before she had acquired that name by marrying him. He believed the insurance on his own life was in force when he paid the money to Mr. Syer. He gave a detailed and circumstantial account of what happened at the

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top of the crags. Helga and he sat for about half an hour with their feet about half a metre from the edge. Helga got up to leave and, as he got up, he felt a short, quick push underneath his shoulder blades. He did not fall forward, but "into himself". He demonstrated in the well of the Court with the macer playing the part of Helga. "I am sure" Dumoulin said, "that God at that moment saved my life." Helga then came at him and tried to push him backwards towards the edge. He gripped her by the wrists and half turned her round. Then he pushed her away, not towards the cliff, but more or less parallel to it. She spun round, fell and then overbalanced head first over the edge. He did not believe that Helga wanted to kill him for money. He could only guess that she was insane at that moment. He said "She looked afraid like a little child at school expecting punishment." Throughout a day and a half in the witness box Dumoulin gave his evidence in the crowded Court with composure. The single occasion when he seemed to lose it was not in Court, but during a consultation. The Crown had produced a document with an extraordinary history. A prisoner called McGregor was subjected to a routine search on leaving Saughton Prison and, in his possession, was found the fly-leaf of a book. On it in Dumoulin's handwriting was what appeared to be the evidence of an eye-witness to what happened at the top of the crags, complete with sketches and measurements relating to the locus. Dumoulin was unaware that this had fallen into the hands of the authorities and he was plainly taken aback when we had to confront him with it at a consultation. His explanation then, as it was under cross-examination, was that because of language difficulties he was simply trying to explain to McGregor what had happened. There was no human eye-witness. "The witness" he said "was God". Unhappily, Dumoulin had no witness, divine or otherwise, and after his evidence the defence case closed. As far as I remember, the witness depended on a few minutes after 8 o'clock, and so on, and he gives the colour of the clothing which Dumoulin and his wife were wearing. Then in the next paragraph he says: "After about 15 minutes they kissed together, and shortly after this kiss they stood up. He did stood up slowlyshe speedily. With one step she was behind him, and pushed him with both hands back. He only break down, and did sat after this push on the stonel (ground). Then he stood up. She assault him"-and that is all that matters; it is a description more or less of the evidence which he gave. Then you have various sketches, including a plan view of the hill. You have the eye-witness near the bottom. It says something like "eye-witness" on the hill, and then you have two figures of a man and a girl near the edge of the cliff, and a measurement of 15 yards or something between them. Then above it you have not a bad description of the top of the crags, along the top, and the Radical Road underneath. That was taken after the prisoner had left prison for the trial. The jury were then addressed by the Advocate Depute on behalf of the Crown and by me for the defence. At the beginning of the following week, two weeks after the commencement of the trial, Lord Wheatley in a charge lasting some 2t hours gave the jury directions in law. He referred among other things to the presumption of innocence and the need under Scots law for corroboration of all material points. He directed the jury that there was

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insfficient evidence in law to justify them concluding that before the accused entered into the car transaction in Germany he had formulated a scheme to defraud an insurance company by taking out insurance on the life of Helga and by murdering her, and he directed them to put out of their minds all the evidence relating to the transactions in Germany. He further directed them to find the accused not guilty of Charge (1), the alleged fraud on the Bank of Nova Scotia. He enumerated the verdicts open to them on Charge (2), namely, not guilty .and not proven. He explained that a verdict could be either guilty, not guilty and not proven. He explained that a guilty verdict could be either guilty as libelled, or guilty subject to the deletion of any part of the charge which they held not to have been proved; and, with reservation, he left open to them the possibility of a verdict of guilty of culpable homicide. Perhaps at this point I may be allowed to digress to say a word about the verdict of "Not proven", a verdict which is peculiar to Scotland. In its legal effects it differs in no way from a verdict of not guilty. In either case the accused has "tholed his Assize", as it is called, and may not be prosecuted again for the same offence. The not proven verdict has had many critics in Scotland among eminent judges and jurists, and just as many have come to its support. Originally, the only verdicts were guilty and not guilty but, in the days of the Covenanters, Scottish juries showed a dour reluctance to convict a man because of his religious beliefs. In 1682 the Lord Advocate decreed "that in no case whatever the jury has a right to exercise their judgement upon any point, except the evidence relating to the different facts charged in the indictment; that in every case they are to decide merely upon the fact; and it is the province of the judges to determine the import of their verdict in the scale of guilt." Between that date and 1728 the only verdicts were "proven" and "not proven". In 1728 Carnegie of Finhaven was tried for the murder of the Earl of Strathmore in an aristocratic drunken brawl. The accused's advocate was so confident of an acquittal that he demanded, and obtained, a verdict of "not guilty". How "guilty" came to supersede the "proven" verdict, I am not clear, but for more than two centuries "not proven" has remained along with the other two verdicts. Its retention cannot be defended in logic, but there are few practising advocates who have never commended the verdict as being the only appropriate one in an exceptional case. But to revert to Ernst Dumoulin-there is little more to tell. After two hours the jury unanimously brought in a verdict of not guilty on Charge (1) and on Charge (2) by a majority of 11 to 4 they returned a verdict of guilty of murder under deletion of the last six words in the indictment, "in pursuance of said criminal purpose". Dumoulin was sentenced to life imprisonment and, in accordance with Scottish judicial practice, no recommendation was made as to the minimum period he ought to serve. An appeal was taken to the High Court of Justiciary on the only statable grounds open, namely, that the Presiding Judge had erred in holding that the parts of the indictment alleging criminal conduct in Germany and an attempted fraud on the Bank of Nova Scotia were relevant. The right of appeal stems from the Criminal Appeal (Scotland) Act 1926. Although it takes the form of an application for leave to appeal, it is fully argued in the High Court before three judges. Dumoulin's appeal was heard on

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22nd March, 1973. On his behalf it was contended that there was no genuine connexion in Germany with a charge of murder in furtherance of a criminal purpose to obtain money from an insurance company in Scotland; and also that the alleged attempted fraud on the Bank of Nova Scotia had no bearing on the criminal purpose in the indictment. The ultimate issue for the jury was the credibility of Dumoulin's own evidence of what happened at the top of the crags and it was submitted that the erroneous admission of evidence inferring dishonesty on his part was bound to affect the minds of the jury adversely. However, the learned Judges who heard the appeal thought otherwise and the appeal was unsuccessful. No further action could be taken: There is no appeal to the House of Lords in criminal matters. Having regard to the directions given to the jury by Lord Wheatley in connexion with the possible deletion of the last six words of the indictment, the inference to be drawn from the jury's verdict was that Dumoulin had mistakenly thought that the insurances on Helga's life were effective, but that the Crown had not proved that he had formed a plan to dispose of her. He had, to use Lord Wheatley's words, "acted on the spur of the moment knowing or thinking that the insurances were in operation". If the jury were right, and I do not suggest otherwise, Helga Konrad went to her death on her wedding night and her bridegroom is now serving a life sentence for no better reason than that Dumoulin misunderstood what he had been told, or perhaps he thought he knew better, and he wrongly imagined the insurances on Helga's life to have come into force. That, to me, was the final irony in a bizarre and fascinating case in which the facts turned out to be as strange as fiction. (Applause) THE CHAIRMAN: I am sure that you have all been fascinated by that account of this trial and, speaking for myself, learning something of a foreign system of criminal procedure. Mr. O'Brien has been good enough to say that he will be glad to answer questions and I throw the meeting open. DISCUSSION (Senior): Learned Counsel said that when the accused was being interviewed by the police he had asked that the insurance papers should be destroyed. Did I hear you correctly? MR.

EVANS

MR. O'BRIEN: No. He had asked whether the insurance papers could be destroyed at the stage when he was being interviewed, or, rather, when he saw Mr. Syer, the Insurance representative from Hambro's, on the Sunday. MR.

EVANS:

In that case, he would have no remuneration monetarily from the death?

MR. O'BRIEN: No. MR.

EVANS:

So that there was no motive?

MR. O'BRIEN: That is absolutely true. MR. EVANS: Was that point brought up? It seems to me that he made that request thinking that the fact that he had made an insurance proposal would prejudice opinion against him and, in that case, if he had thought he would benefit monetarily from the death, he was throwing it away? MR. O'BRIEN: Yes, indeed. The point was brought out. I think that the opposite point of view was that he had panicked after he had done it, and this was consistent with all the evidence of the people summoned at nine o'clock.

122 MR. EVANS: How long afterwards did he make that request that the papers should be destroyed? MR. O'BRIEN: Two days. On the Sunday. MR. EVANS: It is a long time for a panic, isn't it? MR. O'BRIEN: This was the alternative view, that he had panicked immediately after he had done this; and various witnesses saw him in a state of hysteria. It does not seem to be like acting. This is one thing that impressed itself on me at the time. All of the witnesses, the police witnesses, spoke of him as being highly distressed and it could be that, despite whatever his motive was, he subsequently panicked at the time he came down. MR. EVANS: Thank you, sir. MRS. ELIZABETH BUTLER-SLOSS: May I ask about the verdict of "not proven"? Is it a frequent verdict that is brought in in Scotland? MR. O'BRIEN: It is not frequent, no. It is not so frequent as a "not guilty" or "guilty", but it does occur. I would not like to hazard a guess, but not more than I in 20 verdicts or I in 30 or 40 verdicts-that kind of thing. MR. MINTY: With a "not proven" verdict, can a person be prosecuted afterwards? MR. O'BRIEN: No, he cannot. The effect is the same as a "not guilty" verdict. MR. GAVIN THURSTON: I do not wish to be flippant, but I have heard this saying: "Not proven" is "not guilty, but don't do it again." Is there anything in that? (Laughter) MR. O'BRIEN: Well, it comes very near at times. A MEMBER: May we take it that it is like the epithet "Cleared" appearing in the Times sub-headlines; it nearly always means that the man has done it. MR. O'BRIEN: No, not necessarily. It can, for example, be the kind of case where we look for corroboration. There is no corroboration but perhaps a single witness has been believed and that means (if you like) that the man has done it, but for legal reasons he cannot be convicted. MR. JOHN BLISS: Three short questions. One is that I was interested to hear the comments on the Scottish legal procedure. Is this somewhat akin to the Scandinavian system, do you happen to know, and, if so, how has it come about? Secondly, had the prisoner any previous convictions for fraud? Thirdly, what was McGregor's explanation of his instructions as to what was to happen to the paper? MR. O'BRIEN: The first question I am afraid I cannot answer. I do not know any Scandinavian law. The second I can answer shortly. He had no previous convictions here or in Germany. The third question about McGregor is more difficult. I am trying to cast my mind back. McGregor was, I am bound to say, a bit shifty in giving his evidence; but his explanation was more or less in line with Dumoulin's-that is to say that Dumoulin had tried to explain to him what happened at the top of the Crags just as a matter of passing interest and in the course of doing it, because of language difficulties-because Dumoulin's English was not at all good-he had written this down to try to explain to him what happened and, needless to say, McGregor was asked about this curious witness too, and strangely enough, McGregor himself said that Dumoulin had told him that the witness was God. MR. SHARLAND: Are the defendants ever acquitted in Scotland under the 110 Day Rule?

123 MR. O'BRIEN: Yes, it has happened. It is not the kind of thing of which we are proud. It happened in the last Leap Year, which must have been 1972, and the reason was, in adding up the 110 days-laughter-this was the 29th February and somebody was acquitted for that reason. That was the only occasion in my recollection. I think there was also a reported case in the last 20 or 30 years. Needless to say, a strict time table ... (Laughter interrupted the end of this remark). THE CHAIRMAN: Have you any power for extending this time? MR. O'BRIEN: Yes. The Crown can go to the High Court and say that through no fault of theirs-it may be because of the accused or his advisers-they are unable to complete the trial within 110 days. But the onus is on the Crown and they must satisfy the Court that nothing that the Crown could have done could have allowed the trial to finish within 110 days. That has happened on two occasions. The Crown petitioned the Court to extend the time. The Court must be satisfied that there are good reasons for It. MR. EVANS: How old is that rule, sir? MR. O'BRIEN: I think it is a 19th Century Act-early 19th-but I cannot be sure. MR. GRANT: Having heard from you the defendant's description of what is alleged to have happened on the top of that hill and having seen the long grass, one might expect to find signs of struggle. Was that investigated? MR. O'BRIEN: Yes, and there was none. The police found nothing at all at the topand they did investigate very thoroughly. MR. GRANT: Was it a dry night? MR. O'BRIEN: Yes. MR. GRANT: The weather was dry? MR. O'BRIEN: Yes, a moonlight night. MR. EVANS: There were no other courting couples there? MR. O'BRIEN: Apparently, but not at the top of the Crags. MR. EVANS: It must have been well known in Edinburgh? MR. O'BRIEN: Yes, but the top of the Crags is not a well known place for courting. MR. LEVENE: Why is there no appeal to the House of Lords on criminal matters? MR. O'BRIEN: This goes back to the Act again. There were legal reasons as to why, after the Act, an appeal was allowed in civil matters, but there never has been for criminal matters. MR. MONTAGUE: Have you any idea, sir, of the respective weights of the two parties? Was it a great big man and a little woman? MR. O'BRIEN: No. They were both, curiously enough, about the same in height and weight. They were medically examined just a month before. I cannot tell you their weights now, but both the girl and Dumoulin were about 5 feet 8 inches tall. I would be guessing if I tried to give you their weights. All I can tell you is that they were slightly built. A GUEST: May I be permitted to ask a question, sir. I live in Edinburgh and I attended in the public gallery on some of the days of this trial. I think that there will always be a doubt, as to whether she slipped or she was pushed, or who pushed first, but it seemed to me that this letter carried in the fly-leaf of the book by McGregor was the most damning piece of evidence. I think Dumoulin was attempting to get McGregor to find a witness, possibly for a payment of money, to come forward and say that he was an eye witness to the situation, that she pushed first. I think this is why he described in great detail the height of the Crags, the position of the Crags, even the clothing that they were wearing. I do not think that he would have done this if it was just a language difficulty and he was telling his friend in prison.

124 MR. O'BRIEN: Yes, I think there is something in that. I think that is why he was somewhat disconcerted when we came along to the prison with that particular document. MR. BASIL GREENBY: Is the definition of "murder" in Scottish law the same as in English law? I ask this because you said that the charge went into the fact that having married her and insured her life he murdered her. In English law the fact that he married her and the fact that he insured her would be matters to come out in evidence; it would certainly not form part of the charge. It would not be necessary to be proved. I cannot understand why it is brought in in Scotland. Secondly, do you have any equivalent to the English system of depositions so that the defence knows what evidence the Crown is going to put forward. MR. O'BRIEN: The only way I can answer your first question is that on a normal murder charge the answer, of course, is "No". It is a very simple charge, occupying half a dozen lines. In this particular case the Crown chose to wrap it all up in what they call a criminal purpose • and a criminal purpose right down from Germany to the purchase of a car and selling the car that did not belong to him, using money to take out insurance policies, and this is what formed part of the criminal purpose. I did bring copies of the indictment and I could perhaps release them to those of you who are interested. You will see that it is a lengthy indictment. It is not a typical charge of murder in so far as the form of indictment is concerned. The second question about depositions. The witnesses are on precognitions taken by the Crown and it is up to the defence to take their own precognitions of the witnesses, to get their names from the indictment. You see the names of the witnesses on the indictment and it is an absolute offence to take the Crown precognitions. MR. GREENBY: The Crown does not supply copies for the defence? MR. O'BRIEN: No. MR. GREENWAY: About the orthopaedic evidence, if I may call it that, the height of the fall as deduced from the nature of the fractures. It seems to me incredible that so precise a computation of the path of the bounces could be deduced from the injuries. Perhaps the orthopaedic surgeons here may feel that this is acceptable, but as a chemist this is something about which I would like to be convinced. Was that evidence challenged, shall we say, on statistical grounds? Is previous experience of this kind of thing sufficient to enable one to decide precisely how the fall took place? MR. O'BRIEN: There is one thing that I did not tell you that I should have done. There was found on the grassy bank, some 30 feet above the Radical Road, an indentation in the ground, and this is why the police and also the forensic experts decided that the girl's head hit it after coming down something like 80 feet. This indentation was one way to mark the line on which the body had come. I think it is only fair to say that. At the same time, as far as the exact measurements are concerned, what it came to is that they had certain theories and, given the theories, they had to draw certain conclusions. As you probably have gathered, whatever measurement you take, you will find a ledge somewhere. Both of them found a ledge, wherever it was, to suit their own particular purpose. MR. EVANS: Was there no blood on these ledges, sir? MR. O'BRIEN: No. It is fair to say that, as far as the ledges were concerned, that matter was raised in the course of the trial, something like five or six months afterwards. Those learned gentlemen who came to do a post-mortem for this were left alone for a month and then when they started looking at the ledges they would not have found any evidence. A QUESTIONER: First of all, the two pathologists who did the post-mortem, were they both for the Crown, or was one for the Crown and one for the Defence? MR. O'BRIEN: They were both Crown. MR. PYLon: Is it normal to have two pathologists to do a post-mortem?

125 MR. O'BRIEN: It is not usual, no, but this was an unusual case. QUESTIONER: My second question, as a non-lawyer, I notice that the jury consisted of 15 people and there was a vote of 11 to 4. I gather that is different from the English procedure. Would you comment on that? MR. O'BRIEN: Only to say that you are quite right. (Laughter) And we have our verdict by a simple majority. THE CHAIRMAN: You have been able, in Scotland, to have a majority verdict for sometime? MR. O'BRIEN: Yes, we have. THE CHAIRMAN: It is a fairly recent innovation in our law: It has to be 10 to 12. MR. O'BRIEN: Yes. A MEMBER: On the question of procedure, I think it is the English experience in simple cases that an opening speech can be dispensed with. How in Scotland do the prosecution get over the problem in a complicated fraud case of putting to the jury a system which they hope to prove? Is this a matter of selecting, say, a police officer and putting to him questions which will elicit answers that one hopes to get in the course of that opening speech? MR. O'BRIEN: That is a very fair question. You have taken one particular type of trial where I agree that an opening speech would be of assistance. Fraud is a difficult and complicated matter for a jury to understand. But I am afraid that we have no opening speech. We just have to take the evidence and it has to be explained as it goes along as simply as possible, in the way that the evidence is taken. THE CHAIRMAN: It is sometimes said in England that juries do not understand it either, after it. (Laughter) That brings the proceedings to a close. I am sure that I am speaking for everyone of us when I thank Mr. O'Brien for this exceedingly interesting paper on an exceedingly interesting case, and for letting us peep, at any rate, into some of the darker, shadowy parts of the criminal procedure of Scotland. (Applause)