Lord Justice General
Appeal No: C204/97
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
NOTE OF APPEAL
JOHN IAN KING
HER MAJESTY'S ADVOCATE
Appellant: Targowski, Q.C., Scott; McCourts
Respondent: Di Rollo, A.D.; Crown Agent
9 March 1999
The appellant is John Ian King who was convicted of murder by a majority verdict in the High Court at Edinburgh in March 1997. At the time of the trial he was aged thirty. He appealed against his conviction and, partly because the trial judge did not prepare his original report for this court until November of that year, the appeal process was prolonged. During that prolonged period of gestation, the appellant's representatives lodged three sets of grounds of appeal, raising various matters, but in addressing the court on behalf of the appellant, Mr. Targowski limited himself to the latest set of grounds. In fact it soon became apparent that, with the exception of one subsidiary matter, the appeal could best be focused by reference to the contention that, even supposing there was a technical sufficiency of evidence, there was a miscarriage of justice on the basis that the jury returned a verdict which no reasonable jury, properly directed, could have returned. Although counsel made a little play with the suggestion that there was not sufficient evidence to convict of murder in this case, the Crown evidence which we mention later in the opinion shows beyond all question that there was an abundance of evidence upon which a jury could convict the appellant, if they accepted it. The key feature of this case is not the lack of Crown evidence pointing to the appellant's guilt, but rather the existence of other evidence, inconsistent with the evidence pointing to guilt. We do not therefore deal further with the ground of appeal relating to sufficiency of evidence.
Test in Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995
Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 is in these terms:
"By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on -
(b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned."
It is common knowledge that the provision was introduced by Section 17 of the Crime and Punishment (Scotland) Act 1997. That section came into force during the running of the appeal and so made this ground available to the appellant, although it had not been open to him when his appeal was lodged shortly after his trial. It is also common knowledge that Section 106(3)(b) of the 1995 Act was inserted in the light of the Report by the Committee on Criminal Appeals and Miscarriages of Justice Procedures chaired by Sir Stewart Sutherland (June 1996). There was, in fact, a precedent for a provision of this kind in Scots Law. Section 2(1) of the Criminal Appeals (Scotland) Act 1926 required the court to allow an appeal if they considered that the verdict of the jury should be set aside "on the ground that it is unreasonable or cannot be supported having regard to the evidence...". The wording was similar to that in Section 4(1) of the Criminal Appeal Act 1907 which applied in England and Wales at that time. Section 2(1) of the Scottish Act was re-enacted as Section 254(1) of the Criminal Procedure (Scotland) Act 1975 and remained on the statute book until the appeal provisions were altered by the Criminal Justice (Scotland) Act 1980 under which the miscarriage of justice test was inserted in Section 228 and the reference to an unreasonable verdict in Section 254(1) was removed. The effect of the change in the wording was to introduce an element of uncertainty as to the court's power to find a miscarriage of justice in cases previously covered by the legislation. The Sutherland Committee considered the situation and concluded that
"There could well be exceptional cases where, even allowing for the advantages enjoyed by the jury, it would be difficult to understand how any reasonable jury could not have entertained at least a reasonable doubt" (para. 2.67).
They therefore recommended that the power to find that a miscarriage of justice had occurred in such circumstances should be specifically stated in statute in the form which we now find in Section 106(3)(b) (paras. 2.68 and 2.70).
At the hearing we were not referred to the old provision or to any cases interpreting it. The principal authority on its interpretation was Webb v. H.M. Advocate 1927 J.C. 93. In that case the judges appear to have assimilated review of jury verdicts in criminal cases to the established jurisdiction to review the verdicts of juries in civil cases. Each of the judges formulated the test to be applied in his own words. We refer to the versions given by two of them. Lord Justice Clerk Alness said (at p. 95) that the court would set the verdict aside if "the jury have not duly performed their functions, and have given a verdict which no reasonable jury, properly instructed, would have given". Lord Ormidale asked (at p. 97) whether the verdict before the court was "so flagrantly wrong that no reasonable jury discharging their duty honestly could have returned it". It is therefore not perhaps difficult to see why the Sutherland Committee acknowledged that the test which they were proposing would be very similar to that enshrined in the 1926 Act (Report, para. 2.71).
All the judges in Webb emphasise that the court should pay due regard to the function of the jury in our system of criminal justice. In that system decisions on guilt or innocence in serious cases are taken - and are intended to be taken - by juries. This court has therefore respected those decisions and has tended to consider that it should not question them where there was sufficient evidence upon which the jury would have been entitled to convict. By adopting the recommendation of the Sutherland Committee and enacting Section 106(3)(b) Parliament has required the court to modify that approach in the circumstances defined in the provision, for it envisages that - as under the legislation of 1926 - there can be a miscarriage of justice even though there is, technically, sufficient evidence to convict.
In seeking to formulate the appropriate test we begin with the words of Section 106(3)(b). If we ask in what circumstances there may be the kind of miscarriage of justice which the provision covers, then it is obvious first of all that the jury will have returned a verdict convicting the appellant, since Section 106 as a whole deals with appeals by persons who have pled guilty or been convicted by a jury. So the verdict to which Section 106(3)(b) refers is a guilty verdict. The miscarriage of justice therefore arises where the jury return a guilty verdict which no reasonable jury properly directed could have returned. The test is objective: the court must be able to say that no reasonable jury could have returned a guilty verdict on the evidence before them. Since in any case where the provision is invoked the jury will ex hypothesi have returned a guilty verdict, their verdict will have implied that they were satisfied beyond reasonable doubt that the appellant was guilty. What the appellant must establish therefore is that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty. That formulation is not indeed dissimilar to the approach adopted in Webb. The application in later cases of the test set out in Webb has been criticised as unduly restrictive (cf. Renton & Brown, Criminal Procedure, para. 29-03). It will be for the court in future to determine on a case by case basis the proper application of the test now stated in Section 106(3)(b).
We find additional confirmation of that approach in what has been said by courts in other countries where they have exercised a similar jurisdiction, though the wording of the statutory provisions is inevitably different. We were referred to two cases from the High Court of Australia, Chidiac v. The Queen (1990) 171 C.L.R. 432 and M v. The Queen (1994) 181 C.L.R. 487, dealing with appeals under the common appeal provisions enacted by the States. Section 6(1) of the Criminal Appeal Act 1912 (N.S.W.) obliges the Court of Criminal Appeal to allow an appeal against conviction if it is of the opinion "that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence...." This is identical with the test in the English Act of 1907 and the Scottish Act of 1926. Since the opinion of the majority (Mason C.J., Dean, Dawson and Toohey J.J.) in M includes a passage (at p. 493) which is intended to clear up certain ambiguities in earlier cases and to give authoritative guidance, it is sufficient for present purposes if we quote the test as formulated there:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."
Later in the judgment (at pp. 494-495) their Honours refer to this as "the ultimate question". We find that particular guidance of assistance, even though their Honours formulated the overall test as being whether the verdict was discussed as being unsafe or unsatisfactory - a test which the Stewart Committee rejected for Scots Law (Report, para. 2.25).
We were also referred to the decision of the Supreme Court of Canada in R. v. François  2 S.C.R. 827. In that case and in the earlier authorities to which reference is made, the Supreme Court were interpreting a provision of the Criminal Code under which the appeal court may allow an appeal "where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence...." The statutory test is very like that in the Australian and earlier Scottish and English legislation. As can be seen from the judgment of McLachlin J., the authoritative guidance on the approach which an appeal court should follow is to be found in a passage from the judgment of Pigeon J. in Corbett v. The Queen  2 S.C.R. 275 at p. 282:
"As previously noted, the question is whether the verdict is unreasonable, not whether it is unjustified. The function of the court is not to substitute itself for the jury, but to decide whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered."
That test was affirmed in R. v. Yebes  2 S.C.R. 168. When McLachlin J. came to deal with the appeal in François, she referred to the issue as being, in short, whether a reasonable and reasoning jury, considering the victim's testimony, would be bound to have a reasonable doubt about the appellant's guilt (p. 838).
It follows from what we have said about the approach which this court should adopt that, although we require to examine the evidence which was before the jury, it is not for us simply to substitute our view of that evidence for the view which the jury took. In particular, a miscarriage of justice is not identified simply because, in any given case, the members of this court might have entertained a reasonable doubt on the evidence. If that were all that was required, Parliament would have gone far towards replacing trial by jury with trial by the judges of this court. The words in the provision were clearly chosen to avoid any risk of that. Applying the words which Parliament has enacted, we can quash the verdict of a jury only if we are satisfied that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant was guilty.
Bearing in mind that this is the approach which we must adopt, we turn to the issue in this case. In doing so, we note that the appellant did not give evidence at the trial and indeed the defence did not lead any evidence. All the evidence, including the evidence of the four witnesses whose testimony was inconsistent with the Crown case, was led by the Advocate Depute. In leading that evidence the Crown was very properly putting the full picture before the jury so that they should reach their verdict only after they had had an opportunity to consider all the relevant material. Even though the Advocate Depute himself led all the witnesses, we reject any suggestion that this disabled him, when addressing the jury, from inviting them to accept some parts of the evidence and to reject others.
Evidence on which the Crown relied
The person who was killed in this case was a Gilbert O'Donnell who lived by himself in a flat on the second floor of a tenement in Ferry Road, Leith. The appellant lived with Michelle Begbie on the fourth floor of the same tenement. The events which we require to examine occurred over a weekend. The Saturday happened to be the day of a rugby international. The deceased's body was discovered on a bed, in what was referred to as the living room of his flat, at about lunchtime on Sunday 3 March 1996 after the police had been called by a neighbour. The deceased was dressed in a sweatshirt, a T-shirt, two pullovers, a pair of underpants and a pair of pyjama trousers. The front door of the flat was locked and the police had to force an entry. Professor Busuttil, the forensic pathologist, went to the flat and saw the body there at about two o'clock. He noted that the body was very cold to touch and very rigid throughout. Though it was impossible to determine the time of death, Professor Busuttil was able to say, from the rigor mortis, that the deceased had been dead for probably about ten to twelve hours. There was extensive blood staining in the hallway, the bathroom and the living room. There was a hammer in the hall and in the living room the police found a plastic bag containing a loaf of bread and a packet of bacon. In that room also there was a television set which was lying face down on the floor with its screen smashed. It appeared to have fallen from a position on the top of a display cabinet.
The appellant lived with Michelle Begbie on the fourth floor of the same block of flats. About three weeks before his death the deceased had bumped into Miss Begbie and had upset her shopping. She was a bit scared of him. Other neighbours had had problems with water leaking from the deceased's flat. The appellant was aware of both these matters.
It was not in dispute at the trial that on Friday 1 March the appellant had been out drinking and returned home at about 1.45 a.m. on Saturday. After a while he decided to go and speak to the deceased about the incident with Miss Begbie and about the water leaks. Again, there was no dispute at the trial that the appellant and the deceased then quarrelled and that the appellant assaulted the deceased. A number of neighbours gave evidence of having overheard the sounds of a quarrel and of a struggle coming from the area of the deceased's flat at about 2 a.m. We refer to some of that evidence.
Mrs. Morrison, who lived in the flat below, said that she had first of all heard raised voices in the stair, coming from outside the deceased's flat. She heard words to the effect "I have told you before to ...." She got out of bed and went into her living room. The room in the deceased's flat above her living room had a sanded floor and so she could hear sounds from the flat. What she heard was a sound like somebody falling two or three times. She described hearing a loud bang which made her think that her ceiling was going to come in. She had thought that, if this commotion continued, she would telephone the police. She estimated that it had gone on for about half an hour, ending in a big heavy clatter after which everything went quiet. Mrs. Morrison thought that the deceased had fallen and she did not bother further. A little while later she heard a sound like a shuffling from the deceased's bedroom, which was above Mrs. Morrison's kitchen. She heard shuffling through into the hall. She then heard a clatter and it was all quiet. She just heard a wee shuffle after that. Mr. Morrison also gave evidence and described hearing noises, banging, which he interpreted as coming from a fight in the hall of the deceased's flat. He said that they heard a sound like something heavy, a piece of furniture, falling over in the deceased's living room, after which it went quiet.
Miss Jane Bouglas lived on the third floor. She spoke to hearing raised male voices and banging, like someone kicking a door. Mr. Brett McGiffen was living at the time with Miss Lucy Burns in a third floor flat. He spoke to hearing a voice in the stair saying words to the effect "If I see you on these stairs again I'll fucking kill you"; "another good phrase" which stuck in the witness's head was "I'll fucking rip your head off". There was also something about water leaking to a person's flat - it sounded like "my Emmy's flat". Mr. McGiffen thought that the speaker would have been in his late forties or early fifties. The voice was rather loud and rather threatening. Some time after that, Mr. McGiffen heard a noise - a series of bangs leading to a crack which sounded like a lock being broken or something like that. Miss Burns also spoke to hearing someone saying "If I ever see you on these stairs again, I'll fucking kill you." She heard fairly loud banging from the floor above.
Important evidence was given by Mr. Gerald Docherty who lived in a fourth floor flat in the block. He had been out for the evening and returned home at about half past two. As he went up the stairs, he saw the appellant standing in the middle of the walkway with a large cut on his head and scratches down his neck. The appellant said that he had had a fight with one of the neighbours downstairs. He asked Mr. Docherty to go to see if he was all right because "I think I hurt him quite bad". They went downstairs to the door of the deceased's flat and Mr. Docherty noticed that the doormat was lapped or folded over. The door was closed and the appellant said that the deceased seemed to be all right because, when he had left him after the incident, the door had been open. The appellant said that he had gone down to talk to the deceased. He mentioned an old couple having been flooded. The appellant said that he had banged on the door and eventually the deceased had said "Wait just now, hold on". The door had then been flung open and the deceased had approached him with a hammer and hit him square on the head with it. The appellant said that he himself had erupted. He just snapped. He said either that he had pushed or that he had hit the deceased, but in any event the deceased had fallen down and the appellant had started kicking him. At some point the appellant said that he had stamped all over the deceased. Mr. Docherty and the appellant went up to the appellant's house. Mr. Docherty was concerned about the cut on the appellant's head. The appellant went over matters again and Mr. Docherty thought that he was showing genuine remorse, that he seemed a fair bit worried about the other man. The appellant had shown Mr. Docherty how he had stamped on the deceased by raising one leg. He seemed angry. According to Mr. Docherty, the appellant told him that, after he had stamped on the deceased, the deceased had grunted like you grunt when you have had enough.
The following morning the appellant called at Mr. Docherty's house to give him some cigarettes in return for those which Mr. Docherty had given him in the early hours of the morning. The appellant said that he had knocked on the deceased's door and had looked through the letter box and the deceased had not been lying where he had been when the appellant had left him. At some point he said again that, when the deceased hit him, he had just snapped and stamped all over him.
According to Michelle Begbie, when he was in their flat after the incident, the appellant said that he had kicked the deceased in the guts. She also thought that he was angry about what had happened. The appellant's father, Mr. John King, Senior, admitted that it was probably true that the appellant had said to him on the Sunday evening that he had done something horrible and that he had killed the man.
Mr. Joseph McGarvey was a friend of the appellant and he spent part of the Saturday with the appellant and Miss Begbie, watching the rugby international on television. They all returned to the tenement in Ferry Road and, according to Mr. McGarvey, on his way up to his flat, the appellant wanted to knock on the deceased's door. The appellant knocked on the door. At some point the appellant told Mr. McGarvey that he had gone to the flat and the deceased had opened the door and smacked him with what he thought was a flat hammer. He said that they had had a slight fight in the hallway and that was it.
Miss Janet Leslie lived on the second floor, directly opposite the deceased. She spoke to hearing a heated argument at the deceased's door in the early hours of the morning. She heard someone saying "Keep away from my sister, you poofy bastard". In the morning she went out about eleven o'clock and she noticed that the deceased's doormat, which had been in its usual position the evening before, was upturned. She noticed that again when she came back. The reason that she noticed it was that she thought that it was a bit odd. Miss Leslie was back in her flat at about four o'clock in the afternoon and stayed there during the evening and overnight. When she got up on the Sunday, she looked out and saw that the mat was still in the same position. She was quite concerned about the deceased, because she had not been able to hear him on the Saturday. She was usually able to hear a door creaking and had not heard it on the Saturday. Miss Leslie had also not seen the deceased over the weekend, whereas he was usually out and about feeding the cats or doing his shopping. She therefore wondered whether he was all right and she decided to call the police. It was as a result of this call that the deceased's body was found.
Although, obviously, the occupants of the other flats were not in their homes for the entire time from early Saturday morning until the deceased's body was found, it appears that there was someone at home at all times over that period. None of the witnesses spoke to hearing any further noise, far less any noise which might be interpreted as the sound of a quarrel or fight, during that time.
Mrs. Isobella Stewart worked as a receptionist at a surgery in Ferry Road. She said that on the Saturday morning the appellant had come to the surgery. He had explained that he had gone to a neighbour's door and the neighbour had come to the door with a hammer in his hand and had lashed out at him. The appellant also said that he was surprised that the neighbour was not sitting "over there today, because he would be pretty sore" - referring to the other side of the waiting room.
There was a Joint Minute in which the parties agreed that the deceased's mother had spoken to him for the last time between 6 and 8 o'clock on the Friday evening. They were in the habit of speaking on the telephone. She had rung him several times on the Saturday but there had been no reply. It was also agreed, on the basis of telephone records, that there had been a telephone call from the deceased's telephone to his mother's telephone at 8.40 p.m. on the Friday. There was no record of any call after that.
A forensic scientist was able to say that the appellant's blood had been found in various places in the bathroom of the deceased's flat - on the shower curtain, on the handle and on the outer surface of a pail, and on the lid of the lavatory. His blood was also found on the wall of the flat. There was blood staining, which contained a mixture of the blood of the deceased and the appellant, on the pail and on a packet of cigarettes found in the bathroom.
The principal pathology witness led by the Crown was Professor Busuttil. We have already noticed that he saw the deceased's body in the flat at about two o'clock on the Sunday afternoon and, from the rigor mortis which was present, he was able to say that the deceased must have been dead for at least ten to twelve hours before two o'clock. In other words he must have died some time before 4 a.m. The post-mortem examination revealed that the cause of the deceased's death was intra-abdominal bleeding as a result of blunt force trauma. He had suffered very extensive multiple injuries, particularly to the torso. Almost all his ribs were fractured, as was the sternum. His entire rib cage was described as "mobile". There were full-thickness laceration of the liver and extensive bruising to the bowel. The artery carrying blood to the right kidney was completely severed. There was extensive internal bleeding. The injuries would have required severe force to the chest and abdomen and were consistent with having been caused by someone kicking the deceased on the body or stamping on him or by a combination of the two. More than one blow would have been required. Conclusions 10 and 11 of the report are worth quoting in full:
"10. While some purposeful movement may have been possible after infliction of the injuries to the chest, the marked difficulty in breathing produced by these injuries would have severely impaired movement as would have the marked pain produced by such injuries. He would certainly not have been able to go out for a walk or climb and descend flights of stairs.
11. The injuries to the abdominal cavity are very severe and will have resulted in marked and brisk bleeding with early onset of shock and collapse. While it is not possible to accurately state the time interval between infliction of the injuries and death, this will have been a short period of minutes and certainly not of several hours."
Professor Busuttil confirmed, however, that if the deceased had sustained all the injuries on a single occasion, in that condition he could have locked his door, gone to the bathroom and collapsed on his bed. Although Professor Busuttil was not able to say that all the injuries had been inflicted at the same time, they were all about the same age and could have been inflicted at the same time. In any event they had all been sustained within a few hours - within less than a day. It will be noted that the injuries sustained by the deceased were entirely consistent with an assault of the type described by the appellant in his conversations with Mr. Docherty.
Crown Case Summarised
We have outlined the aspects of the Crown case to which the Advocate Depute who appeared in the appeal drew attention. The evidence is such that - leaving aside any other evidence in the case - the jury would have been entitled to conclude that the deceased died as a result of injuries inflicted upon him when the appellant kicked him and stamped on his body at about 2 a.m. on Saturday 2 March. In doing so, the jury would have been entitled to accept the evidence about the statements and actings of the appellant after the incident. They would have been entitled to accept the evidence of the various neighbours about what they heard in the early hours of the morning. They would have been entitled to accept their evidence that no further noises were heard coming from the deceased's flat after that time, and in particular nothing was heard later which would have been consistent with a further attack on him. The jury could have regard to the evidence of the neighbours (apart from Mrs. Farrier whom we mention below) that they did not see the deceased after that time. The jury could have had regard to the evidence that the deceased did not answer his telephone on the Saturday. The evidence about the doormat having been folded over shortly after the incident and not being righted thereafter could have been taken as tending to confirm that the deceased had not left his flat after incident. The evidence of the blood staining showed that the appellant had been present in the flat when the deceased had been bleeding. The jury could have accepted the evidence from Professor Busuttil and others to the effect that the injuries were consistent with the kind of attack which the appellant admitted carrying out, and that the deceased would have died shortly after sustaining all his injuries. In particular they could have accepted his evidence that the deceased would not have been able to go downstairs and out of the building hours later. Finally, they could have accepted Professor Busuttil's evidence that the deceased must have been dead by 4 o'clock on Sunday morning at the latest.
The Crown case therefore comprised a number of different strands. If the jury accepted them and put them together, they were capable of forming a very powerful case for concluding that the appellant had murdered the deceased in the early hours of Saturday 2 March. In particular the evidence to which we have referred would have entitled a reasonable jury to conclude beyond a reasonable doubt that the appellant had murdered the deceased at that time. It is fair to say that Mr. Targowski did not really suggest otherwise. His contention was that, although in a normal case a reasonable jury would have been entitled to be satisfied beyond a reasonable doubt that the appellant murdered the deceased at that time, this was not a normal case but, rather, an exceptional case. It was said to be exceptional because of the evidence given by four witnesses which pointed to the deceased having been seen alive on the Saturday and Sunday.
The Four Witnesses
The first of the four witnesses was Mrs. Isabella Stewart, aged 33, who lived nearby. At one time she had been in the habit of staying for weekends with a girlfriend who lived in a flat below the deceased. For this reason Mrs. Stewart had known the deceased for about eleven years. The deceased had a distinctive appearance. In particular he did not have full eyebrows. Mrs. Stewart had long noticed that he painted in his eyebrows and that they would sometimes be squint. When she saw him, she would always look to see whether they were painted on properly. On the Saturday Mrs. Stewart's daughter had been sick at about four o'clock in the morning and Mr. and Mrs. Stewart had been up looking after her. Once their daughter was settled down, Mrs. Stewart had decided to take the dog out. This was at about 5.30 a.m. She took the dog to the area of the library at the end of Ferry Road, opposite the tenement where the deceased lived. When she was there, according to her evidence, Mrs. Stewart saw the deceased walking down Ferry Road carrying carrier bags. He went to an area beside the library and he was therefore quite close to her - perhaps 10 to 15 feet away. She had seen him there on previous occasions feeding pigeons and she assumed that he was going to do that. She said that he looked ill - as though he had had a bad night sleeping on the floor. At some stage she saw him bending down to pick up pieces of bread and he appeared to be stiff. She saw no marks on his face. She remembered that his trousers were white. He always wore white jeans She could not remember what else he was wearing. Mrs. Stewart was quite definite that it was the deceased whom she had seen. Moreover she was sure that it had been at this time on the Saturday morning that she had seen him because she associated it with taking the dog out after her daughter had been ill.
Mrs. Stewart contacted the police on the Monday evening when she heard that the deceased had been murdered. A significant point to notice is that Mrs. Stewart is a lady who is in the habit of noting events in her diary. In this case she had put in an entry referring to her daughter being ill and another entry referring to the fact that she had taken the dog out at 5.30 a.m. Moreover, Mrs. Stewart told the police that she and her husband had contacted the doctor about their daughter on the Saturday morning and that they had been given a prescription. The police checked what she had said and confirmed that the doctor had been contacted on Saturday 2 March and that the relevant prescription had been made out.
The second of the four witnesses was Mrs. Elaine Farrier, aged 30. At the time she lived in a flat on the third floor in the same stair as the deceased and she therefore knew him and had spoken to him. She would see him most days. She had not heard any particular noises in the early hours of the Saturday morning. On the Sunday afternoon Mrs. Farrier was contacted by the police who asked whether she knew anything about the deceased's movements over the weekend. In evidence she said that she went out to get a paper on the Saturday morning and returned at about 9.30. As she was coming out of the newspaper shop, she saw the deceased going into the stair where they lived. She went back to the stair. Mrs. Farrier said that, as she was going up the stair, she saw the deceased on the second-floor landing. In cross-examination she said that he was carrying a bag which bounced against the railings on the stair and the noise had made her look up. She waited until he got to his door and then she passed on up towards her own flat. She said that he remained standing at his door trying to get in, which she thought was odd. She saw his back view only and therefore did not see his face. She thought that he was wearing a dark jacket and cream trousers. She was certain that she had seen him at this time on that day. She fixed the day on the basis that she had been wearing a rugby shirt in honour of the international. When she was first seen by the police, she said that she had seen the deceased at about two-thirty in the afternoon.
The third witness was Mrs. Anne Winterburn, aged 40. She worked in a shop in Grand Junction Street. A boy, Steven Robbins, also worked there, but only on Sundays. Mrs. Winterburn knew the deceased as a regular customer. She gave evidence of having served the deceased one morning just after the shop opened at about 9.30. She could not say that it had been on the Sunday - it could have been the Friday or Saturday. She recalled that the deceased had picked up the wrong bread, brown bread. It was more expensive and he never took it. She pointed out his mistake and she thought that Steven Robbins had changed the loaf for him, but in any event it had been changed. She thought that he had bought three loaves, but she was not absolutely positive about that. She thought that he had also bought bacon that day, but she was not certain of that. Mrs. Winterburn was first asked about this by the police on the Monday after the deceased was killed. They had come to the shop because it was one of only two in Leith which sold the kind of bacon which had been found in the deceased's flat. Mrs. Winterburn initially told the police that she had served the deceased "the other day". It was only after she spoke to Steven Robbins that she telephoned the police to say that she had served him on the Sunday, but her final position in evidence was that she did not want to say that it was the Sunday, "because I am still not certain. I am certain of the person I served and I am not certain of the day."
Steven Robbins, aged 13, said that he worked in the shop on Sundays only. He recalled that one Sunday a man was in the shop and picked up a brown loaf in addition to three white loaves. Mrs. Winterburn pointed out his mistake and the man exchanged the brown loaf and picked up four white loaves. He could not remember the man or identify him as the deceased. He said that he remembered that the incident had happened the Sunday before Mrs. Winterburn had asked him about it. On the morning in question he had been bringing through crates of beer in preparation for what was likely to be a demand because there was to be a Hibernian match on television later that day. When there was a Hibernian home game, they tended to be busy.
It is apparent that, if the jury had accepted the evidence of the four witnesses, they would have been bound to acquit the appellant of the deceased's murder, since that evidence pointed to the deceased having been alive at 5.30 a.m. and 9.30 a.m. on the Saturday and at about 9.30 a.m. on the Sunday. On the Crown case, the deceased would have been dead shortly after 2.30 a.m. on the Saturday. Moreover, even if they did not actually accept the evidence of these witnesses, if that evidence had given rise to a reasonable doubt in their minds, the jury would have been bound to acquit the appellant. Since the appellant was convicted by a majority, we may perhaps surmise that it was this evidence which gave rise to a reasonable doubt in the minds of the minority of the jury. As we explained at the outset, however, what we have to determine is whether the evidence of these four witnesses meant that no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant murdered the deceased. In assessing their evidence the actual jury had the advantage, which this court does not have, of having seen and heard them give that evidence. That is a consideration to which we must pay full regard (M v. The Queen supra at p. 493). We must accordingly assume that the hypothetical reasonable jury would have enjoyed the same advantage which would be relevant to their determination not merely of questions of credibility, but also of questions of reliability.
Although in addressing us Mr. Targowski appeared to attach greater importance to the evidence of Mrs. Winterburn and Steven Robbins relating to the Sunday, in our view it is not difficult to see why a reasonable jury could decide that their evidence did not satisfy them that the deceased had been seen that day. Mrs. Winterburn herself was anxious to explain that she was not certain that the deceased had come into the shop on the Sunday morning. She was sure that he had been in the shop in the days preceding the visit by the police, but she was not certain of the day. The conclusion that it had been the Sunday depended upon the incident with the loaf and upon Steven Robbins, who worked only on Sunday mornings, having been involved in that incident on that particular Sunday. If one examines the two accounts, however, one can see divergences between them and a reasonable jury could well take the view that they should go no further than Mrs. Winterburn herself in saying that she could not be certain that the deceased was in the shop on the Sunday morning. That being so, a reasonable jury would be entitled to take the view that they should prefer Professor Busuttil's evidence that the deceased must have been dead by 4 a.m. on Sunday.
Of course, that leaves the two witnesses who spoke to seeing the deceased on the Saturday morning. Each of them knew the deceased and this is therefore not a case in which a reasonable jury could say that the witnesses saw someone who they mistakenly thought was the deceased.
At the trial defence counsel put these witnesses forward as persons whose evidence had not really been challenged by the Advocate Depute. It is true that the Advocate Depute did not directly put it to either of them that they were mistaken, but their evidence covered various matters which a reasonable jury would have been entitled to take into account in determining whether to accept it as reliable. For instance, in assessing whether Mrs. Farrier's recollection that she had seen the deceased on the Saturday morning was reliable, they would be entitled to have regard to the fact that she originally said that she had seen him on the Saturday afternoon. In any event the mere fact that the Advocate Depute did not directly challenge the witnesses does not give them a certificate of credibility and reliability which the jury must accept: resolving issues of credibility and reliability is pre-eminently the jury's function and any jury, including the hypothetical reasonable jury, would have been entitled to reject their evidence even though it had not been directly challenged by the Crown.
On paper at least, the most compelling of the four witnesses appears to be Mrs. Stewart. In giving her evidence she was sure that she had seen the deceased when she was out with the dog at 5.30 in the morning and she tied that occasion in to the illness of her daughter just before that. The entries in her diary and the fact that the police had checked the date by reference to the doctor being contacted and to the prescription which he made out would appear to lend force to her evidence. In addition she contacted the police on the Monday when, it might be supposed, the events would have been fresh in her mind. Although the Advocate Depute who appeared before this court pointed out that, on her own account, Mrs. Stewart had apparently been attending more to the dog than to the deceased, that does not appear to be a significant criticism of her evidence. Indeed her evidence as recorded in the transcript appears impressive and, if it stood by itself, we can see nothing in its content which would constitute a reason for rejecting it.
Mr. Targowski's submission really was that we should indeed look at the evidence of the four witnesses separately and in isolation. That was in effect the starting point for his argument. The Crown case stood on one side and these four witnesses on the other; the two bodies of testimony were irreconcilable and so a reasonable jury was bound to have a reasonable doubt about the appellant's guilt. We accept that this case is unusual in that Mrs. Stewart's evidence in particular appears to be borne out by certain surrounding circumstances. But it is by no means unusual to find that there is a body of evidence in a case which is quite inconsistent with the accused's guilt. Evidence supporting an alibi defence is necessarily of that nature and, while it is often possible for the Crown to undermine alibi witnesses on the ground perhaps that they are partial or untrustworthy, that is by no means always the case. In such a situation juries may none the less be satisfied of the accused's guilt beyond reasonable doubt on the basis of the Crown evidence and come to the view that they must accordingly reject the alibi evidence as wrong. The jury must consider all the evidence but, having done that, they can reasonably reject the alibi evidence precisely because it is inconsistent with the Crown evidence which they have decided to accept.
The most unusual feature of this case is that it is not possible to suggest any reason why the Saturday witnesses' evidence should be regarded as wrong, except that it is contradictory of the Crown evidence. In that situation, as in any other, a reasonable jury would require to consider all the relevant evidence in reaching their verdict. Having done so, however, the reasonable jury would be entitled to accept the evidence pointing to the guilt of the accused and to reject the other evidence precisely because it could not be correct if, as the Crown evidence showed, the appellant killed the deceased early on Saturday morning. In reaching their decision that, despite the four witnesses, they were satisfied beyond a reasonable doubt that the appellant was guilty, the reasonable jury would, of course, have regard to the strength of the Crown case. As we have explained, in this case the evidence pointing to the guilt of the accused was very powerful. Moreover, the expert medical evidence showed that, with the fatal injuries, the deceased could not have gone downstairs, into the street and back up the stairs. Therefore, if he had been seen outside on the Saturday, he would have had to have been assaulted again after that. But the evidence of the neighbours indicated that they had heard and seen nothing suggesting that there had been a later assault. That being so, a reasonable jury would have been entitled to conclude that the only assault was in the early hours of Saturday and that the evidence of the deceased being seen outside later that day was inconsistent with the scientific evidence in the case. On this basis they would have been entitled to reject the evidence that the deceased was seen outside on the Saturday.
For these reasons we are satisfied that, on the evidence led at the trial, a reasonable jury would have been entitled to conclude beyond a reasonable doubt that the appellant murdered the deceased. We cannot therefore hold that no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant murdered the deceased. We accordingly reject the ground of appeal based on Section 106(3)(b) of the 1995 Act.
The Judge's Directions on Assault
Mr. Targowski advanced one other argument. He submitted that the trial judge had erred in not giving the jury adequate directions to the effect that, if they accepted that the appellant had assaulted the deceased, but that the assault by him had not been the cause of the deceased's death, then they should convict the appellant of simple assault. He argued, somewhat faintly, that by omitting to give this direction the trial judge might have left the jury with the impression that in that situation they should convict the deceased of murder or culpable homicide. We reject the submission. In his charge the judge gave the jury the usual direction on assault and, when mentioning the verdicts which would be open to them, he said that one verdict was "even technically assault". In this particular case nothing more was required. At the trial the true issue between the parties was whether the appellant should be acquitted or found guilty of murder or culpable homicide. In his closing words to the jury defence counsel asked them "to return a verdict which, in my submission, you are perfectly entitled to do in this case, of not guilty or of not proven against the accused." That was consistent with his whole approach in his speech in which he had argued that the jury should reject the Crown case on the basis of the four witnesses. Equally, of course, in his speech the Advocate Depute referred to the body of evidence on which the Crown relied to prove that the appellant had killed the deceased and submitted that the jury should accept that evidence and reject the evidence of the four witnesses. Where the case was fought out on that basis we are satisfied that it was unnecessary for the trial judge to say more than he did about assault and we are equally satisfied that his directions could not possibly have misled the jury. By their verdict the jury showed that they were satisfied beyond reasonable doubt that the appellant had not merely assaulted but had murdered the deceased. We therefore reject this ground also.
For the reasons which we have given the appeal must be refused.