Lord Justice Clerk
Appeal No: C255/97
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by LORD PHILIP
NOTE OF APPEAL AGAINST CONVICTION
DEREK ALEXANDER McCREADDIE
HER MAJESTY'S ADVOCATE
Appellant: Findlay Q.C., Halley; Simpson & Marwick
Respondent: Bell, Q.C.; Crown Agent
5 March 1999
On 18 March 1997 the appellant was convicted, by a majority verdict, of the murder of Craig McDonald on 26 October 1996 at Tiree Crescent, Newmains, Wishaw, by repeatedly stabbing and striking him on the body with a knife or similar instrument and repeatedly punching and kicking him on the body. He appeals against his conviction on the ground that there was insufficient evidence to entitle the jury to convict him, and that the trial judge was in error in rejecting the defence submission of no case to answer.
As the trial judge says in his Report, the evidence fell into a relatively small compass. The deceased was found beside a telephone box on the road at the locus described in the indictment. He had sustained five wounds, namely two stab wounds penetrating directly into the body, one through the heart and the other through the abdomen; a third stab wound, delivered downwards to the back of the neck and penetrating into the chest; and two slashing wounds, one to the left arm, which may have been a defensive wound, and one to the left ear. In these circumstances, there was no real doubt that he had been murdered.
The evidence showed that the deceased had spent the earlier part of the night quite innocently, visiting various friends. He had gone from house to house in a somewhat random way, and had drunk a good deal during the course of the night, but there was no evidence that he had been involved in any trouble or that he had had any contact with the appellant. The deceased had become interested in a girl named Sandra McEwan. He told some of his friends that he intended to telephone her to ask her for a date and he had obtained her telephone number through one of those friends. He was carrying her telephone number written on a piece of paper, which was found under his arm on the roadway. The last house at which he called was a flat at 106 Tiree Crescent, occupied by the witnesses Gary Kane and Lesley Findlay. The deceased's regular girlfriend, Carol Sloan, was also present. The deceased left that house shortly before 2 a.m. with the express intention of making a phone call. Shortly thereafter, a telephone call was made from the telephone box, beside which the deceased was found lying, to the number which he had been carrying. The number was that of a house occupied by Sandra McEwan and her mother Jessie McEwan. The call was answered by Jessie McEwan, who said that she heard the voices of two men but that the receiver was put down after a very short time. Evidence from the records of British Telecommunications plc established that that telephone call was begun at 2.00.44 and lasted five seconds. A very short time later, a 999 call was made from the same box. Because of the way in which 999 calls are handled and recorded, it was not possible to determine the timing of that call to the second, but the evidence did establish that the call lasted 36 seconds and began and ended within the minute commencing at 2.02. There was thus a maximum gap of 1 minute 36 seconds between the ending of the first call and the beginning of the second. The 999 caller asked for an ambulance and said that there was a man lying on the road there. There was evidence from four witnesses who identified the voice of the caller on a tape recording of that call as that of the accused. There was also some fingerprint evidence. One print of the deceased and one of the accused were found within the telephone box.
There was also evidence from two witnesses, John McIntyre and Elaine Hunter, who had been in Tiree Crescent near to the material time. McIntyre and Hunter had walked together to the vicinity of some shops at the end of Tiree Crescent, some distance from the phone box. They then separated and Hunter walked down Tiree Crescent. She met the deceased, whom she knew, and spent a short time talking to him. McIntyre was in a position to see that Hunter was talking to someone. He also heard some noise emanating from a party somewhere in Isla Crescent and came down towards Hunter and the deceased, because he was concerned about her. McIntyre and Hunter had had some personal disagreements and they stood talking to the deceased for a short period, the deceased urging them to make up. They then separated from the deceased, who went down Tiree Crescent in the direction of the house occupied by Kane and Findlay. McIntyre and Hunter spent some more time in Tiree Crescent discussing their personal problem. While they were doing so, they saw a person pass them, accompanied by a dog to which he called using the name "Cossy". They identified the appellant as that person and there was other evidence that, at the time, the appellant had had a dog called Cossy and that he lived in Tiree Crescent. At the time when he was seen by McIntyre and Hunter, however, the appellant was moving in a direction away from the telephone box. McIntyre and Hunter went back along Tiree Crescent in the direction of the shops which we have mentioned and Hunter said that, at some point, she looked back and she thought she had seen the deceased heading towards the telephone box.
There was also evidence from Carol Sloan, who said that she followed the deceased down from the flat in which the witness Kane resided to the door of the block of flats at street level. She saw the deceased heading up Tiree Crescent towards the telephone box. She saw two people standing up at the telephone box and she also heard a voice shouting "Hey you, I'm talking to you". The shout came from further down Tiree Crescent, away from the telephone box, and might have been directed towards the deceased. She could not see the person who shouted. In evidence-in-chief she said that she recognised the voice as the voice of the appellant. She then turned and went back to the flat. She also said that immediately after that she heard two voices, which she described as "muttering". In cross-examination she was asked whether she recognised the voice there and then, on the street, and replied that she knew that she knew the voice, but that was all at the time. She found out that the deceased had died on the following day, but she did not go to the police then and was not seen by the police until the Sunday afternoon, when they came to her. She was then asked whether she had thought at the time that the shout had anything to do with the death and replied, "I did and I didnae". Again she was asked when she decided that it was the appellant who shouted and replied, "A few days later, I was thinking about it". Later she agreed that she did not go to the police even after she thought she knew whose voice it had been.
There was evidence of an earlier incident involving a Richard Graham which took place about one and a half hours before the murder. Four witnesses, whose accounts differed in detail, said that there had been a confrontation in which the appellant had made a threat to stab Graham and had thrown a bottle at him. It was apparently suggested that there was some physical resemblance between Graham and the deceased but the trial judge informs us that the resemblance cannot have been close, and that, even if the jury accepted that there was such a resemblance, the evidence in relation to this incident would not directly implicate the accused in the commission of the murder.
In a supplementary report the trial judge refers to a number of marks which were found on the abdomen of the deceased and which were described as possible post mortem animal invader marks. After discussing the inconclusive evidence of two pathologists in relation to these marks, which was inconclusive, his Lordship concludes that the evidence on this matter was hopelessly vague and could not properly be regarded as giving any potential support to the Crown case.
In presenting the appeal, counsel for the appellant accepted that there was ample evidence entitling the jury to hold that the appellant had made the 999 call, and that the deceased had been attacked between the earlier telephone call received by Jessie McEwan and the 999 call. He also accepted that the jury were entitled to infer that the deceased had made the call to the McEwan household, and that the appellant must have been on the scene within a very short space of time after the assault on the deceased. It was also accepted that there was no evidence of any other person being in the vicinity at the material time apart from the witnesses Hunter and McIntyre. He argued, however, that the time-gap between the two telephone calls was sufficiently long to admit of the possibility that the attack upon the deceased took place in the absence of the appellant, and that the appellant arrived on the scene subsequently and made the 999 call. He submitted that there was no sinister implication in the appellant having left the scene after making the 999 call. When he was seen by the witnesses Hunter and McIntyre in Tiree Avenue he was moving away from the telephone box.
In our view, the jury were entitled to infer from the evidence to which we have referred that the appellant was in the immediate area of the telephone box very close to the time at which the deceased was assaulted. There was no evidence of any other person, apart from the witnesses Hunter and McIntyre, being in the vicinity at the material time, and the movements of both Hunter and McIntyre were accounted for. Further, there was evidence that the appellant had earlier threatened to assault another person with a knife, and had shouted in an aggressive tone, in the direction of the deceased shortly before the fatal incident. In these circumstances, we are satisfied that there was in this case evidence which, if accepted by the jury, was sufficient to entitle them to convict the appellant of murder.