APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: C408/96
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION and SENTENCE
STEWART ANDERSON KIDD
HER MAJESTY'S ADVOCATE
Appellant: Boag-Thompson, Q.C., W.D. Small; Drummond Miller
Respondent: G.C. Bell, Q.C., A.D.; Crown Agent
18 April 2000
 On 3 July 1996 the appellant, along with a co-accused Jamie Alan Green, to whom we will refer as "Green", was found guilty of the culpable homicide of Thomas Andrew Blair on 2 March 1996 at the Drumgeith Bar, Drumgeith Road, Dundee. According to the terms of the charge, which originally was one of murder, it was alleged that the accused had punched and kicked the deceased on the head and body, and had stabbed him repeatedly on the body with a knife.
 The deceased was attending a wedding reception and party at the public house after the wedding of his sister Pamela to Richard Carlyle. That day a young man, Craig Stuart, was assaulted in the public house by other youths, and certain of his possessions were taken from him. When news of this reached some of his friends and relations, a number of young men set out for the public house. Thereafter fighting ensued in the public house and, shortly afterwards, outside. In the course of the incident which took place outside the premises the deceased was fatally stabbed. He died as a result of sustaining three deep stab wounds in his back. The most serious of these wounds was on the right side of the upper back. The other two were on the right flank, and on the lower back above the left buttock. The latter two wounds would not have caused death in the absence of the first. According to evidence given by a pathologist, all of the wounds could have been caused by a knife which was Crown production label 107, but any of them could also have been caused by a similar knife. Label 107 was a gutting knife with a thin blade about 8 inches long.
 There was abundant evidence at the trial that Green had stabbed the deceased twice, if not three times. This evidence consisted of the eye-witness accounts given by Pamela and Richard Carlyle, together with evidence that Green had blood on his hands and clothing, that he was seen looking in undergrowth near where label 107 was found, and that he had made certain admissions. Green had given notice of his intention to exculpate himself by incriminating the appellant, and had lodged a special defence of incrimination against Craig Stuart, his older brother Barry Stuart and another young man, David Low. Green did not give evidence.
 The principal sources of evidence which were relied on by the Crown as incriminatory of the appellant were as follows.
 Two young women, Lisa Scott and Claire Weir, gave evidence as to seeing the two accused, along with Craig Stuart and Barry Stuart, running towards the public house. Lisa Scott gave evidence that at the time the appellant was carrying a stick which was about 1 foot long. She was sure that she could not be mistaken about that.
 Pamela Carlyle gave evidence that as the deceased was holding back people from the public house, the two accused ran up behind him.
"One ran to Tommy's back. It happened in a matter of seconds. One got to Tommy's back, the blond one got Tommy's back, run up with the knife and I didn't see him. It was like a punch, and then the other one - just a matter of second, stabbed Tommy twice on the left-hand side".
In referring to the "blond one" she indicated the appellant. In regard to him she also said: "Yes it was like he punched Tommy...so I just seen his arm you know, like punch". She said that the two men had knives in their hands when they came running up. The appellant definitely had a knife in his hand. "I seen him like a punch to my brother's back, and I seen the dark haired one (Green) stab my brother". She agreed, however, that she could not tell whether the "punch" had landed. Green could have stuck his knife into her brother three times. Green struck him within seconds of the appellant's "punch". He stabbed him just as the appellant went to move from him. She had picked out the appellant at an identification parade.
 Richard Carlyle said in evidence that it was "just like a mad battlefield" with people fighting outside the premises. He came out when the deceased was standing on his own. He went on:
"Two boys came running from behind Tommy's back and I seen them plunge him twice or thrice...I seen one of them with a knife in their hand and one with something else in their hand that I couldn't see quite clearly...I seen the first one (indicating the appellant) on his right-hand side go for a plunge and he took off a matter of seconds and the other one (indicating Green) to Tommy's left hand side twice, maybe three times and Tommy fell towards him".
He also said that the appellant was in front since he ran first. The appellant had turned away before Green did anything. What the appellant had in his hand was "something shiny". It could have been a metal pole. "He plunged Tommy first and took off". However, he conceded that it could have been a punch and that the appellant could have missed the deceased's back or merely made a "gesture". He said that he had identified the appellant at an identification parade. He would never forget his face. The lighting was such that he had no difficulty in seeing the two accused. He added that the appellant came back towards the scene with a stick. At this point he told a police officer to arrest the appellant because he had seen him at the deceased's back stabbing him.
 Norman Blair, the father of the deceased, said that he saw the two accused outside the premises. Green was screaming: "I have done Tommy" repeatedly with his hands above his head. The appellant, who was standing slightly behind him, was also making the same gesture.
 Audrey Rice stated that the deceased put the two accused out of the function suite in the public house. Thereafter she saw three or four around the deceased. The two accused were on his left-hand side just punching and kicking him. She did not see anything in their hands. She stated that the appellant was trying to go away, so she went after him. She took hold of him and then hit him on the head with a shoe. She agreed that at the time she was under the influence of alcohol. She was placed in a police car. About 20-30 minutes later she pointed out the appellant to the police.
 It may be noted that there was no forensic evidence linking the appellant with the deceased and that no knife other than label 107 was recovered at or near the scene.
 The appellant gave evidence that he and Craig Stuart had returned to the public house, followed by a group of young people who had not included Green. He (the appellant) was carrying a wooden mop handle about 2 feet long. He and Craig Stuart were going to recover some chains which had been taken from Craig Stuart. However, as they entered the front door of the public house, a crowd came bursting out of the lounge and he was punched and knocked down in the process. He then ran away. He had earlier thrown away the stick which he had been carrying. However, he then picked up a pick-axe handle, which he found propped against a wall, but threw it away also when police cars arrived. At one point someone came running towards him and tried to punch him. At that stage he ran back towards the bridge. He had never seen the knife, label 107, or joined in any fight. At no point had a woman taken hold of him or hit him with a shoe. He himself had not hit anybody. He told the police that blood on his clothes had come from Craig Stuart. He had not seen the accused at all that night. In cross-examination by counsel for Green, he denied having thrown away a knife which he had used. He was sure that Green had not been in front of him as he returned to the public house with Craig Stuart. In cross-examination by the Advocate depute he said that witnesses who had identified him in the course of the trial, and in particular those who identified him as being associated with Green, were simply mistaken.
 In the course of his charge the trial judge directed the jury that, if they were to bring in a verdict of guilty on the basis of concert, the verdict could not be one of murder but could at worst only be a verdict of culpable homicide. He gave that direction on the ground that there was no evidence from which the jury could properly infer that either accused knew, or must have known, that the other was going to assault the deceased in a murderous way. The verdict which the jury delivered appears to indicate that they considered that the appellant had been acting in concert with Green.
 This court has already rejected a ground of appeal that the trial judge misdirected the jury. For this reference should be made to the Opinion of the Court, delivered by Lord McCluskey, dated 12 November 1999. Earlier in the proceedings in this appeal the court gave authority, in the light of an affidavit sworn by him, that the evidence of Green should be heard in support of a ground of appeal based on section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995. Having regard to affidavits sworn by Craig Stuart and Barry Stuart the court also gave authority for their evidence to be heard in order to provide a context for the additional evidence which was to be given by Green. In due course the evidence of these three persons was heard by a court composed of the Lord Justice Clerk, Lord McCluskey and Lord Allanbridge. The appeal in regard to this ground of appeal was heard before the present bench along with that of John McIntosh McLay v. H.M. Advocate which was concerned with the use of evidence of statements made by a former co-accused who had died since the trial at which he was acquitted.
 Before turning to the arguments which were presented in respect of this ground of appeal it is convenient that we set out a short summary of the evidence given by each of them.
 Green gave evidence that he was in the house of Paul Stuart, a cousin of Craig and Barry Stuart, with some friends when it was reported that Craig Stuart had been assaulted in the public house. He then set off for the public house along with Barry Stuart. Two other young men were with them or close behind. On the way he obtained and began to carry a pick-axe handle, which he left outside the public house. He then went into the public house with Barry Stuart and another young man. They went first of all into the bar area and then into the function suite where they found a "get together" of 50-60 persons. He became involved in a fight with another young man. When he punched him "all hell broke loose". The crowd pushed him out of the function suite and out of the front door of the public house, with the result that he fell down outside. A male, evidently the deceased, who had pushed him outside, came out of the front door and stopped. Green stood up and took a couple of steps backwards. The deceased said to him: "Come on then, if you think you're a hard man". Green ran towards him and head-butted him on the left-hand side. A split second before he did so he saw, out of the corner of his eye, someone hitting the deceased on the right-hand side of his head and shoulder with a pick-axe handle. This was not the appellant: and ultimately, with what appeared to be reluctance, he said that he thought it was Craig Stuart. Having hit the deceased once only, Craig Stuart ran away and was "nowhere". Meanwhile Green had put his left arm under the deceased's right arm, and his right arm round his back and stabbed the deceased in the back with a knife three times. At first the deceased remained upright, but then he went down with each blow from the knife. He had taken out the knife in the function suite and had concealed it up his sleeve. It was a gutting knife with a black handle and was about 1 foot long. It was thin and came to a point. There was no one else outside at that stage. Craig Stuart was "nowhere to be seen". So far as he knew, no one else knew that he was in possession of a knife before he struck the deceased with it. After stabbing the deceased Green left the scene. The police arrived and a policeman tried to strike him with a baton. He ran up towards the bridge and threw his knife over it. He met Lisa Scott and Claire Weir. He told them that someone had been stabbed. He gave his jacket to Lisa Scott because two policemen were coming in his direction. Thereafter he got into a car driven by Darren Jackson. His jacket was put inside the car. At first he wanted to go back to the public house in order to make sure that Barry Stuart was all right and to pick him up. There were still 30 people outside it. On the way the car stopped near the bridge. He went about half way across the bridge and came back without retrieving his knife. He shouted to Barry Stuart to get into the car. Barry asked him what had happened. He told him that he had stabbed "the cunt". He thought that he also told Barry that he had thrown the knife over the bridge and could not get it back. When the car returned to the house of Paul Stuart, Green realised that there was blood on his clothing. Craig Stuart arrived and asked him what had happened. He told him that he had "fucking stabbed that guy". The police thereafter arrived and he left the house with them. He did not see the appellant at all that night.
 Craig Stuart gave evidence as to how he had been assaulted in the public house earlier that day. He was "battered" again on his way back from the public house. The appellant had been in the public house, but he did not see him from the time when he went into the function suite where the trouble occurred. Another young man helped him to go to the top of the road. He was going to phone for an ambulance for him. After he went away to do so the appellant came up the road from the public house and helped him. He (the witness) was wearing a dark blue top over a black and white checked shirt, and denim jeans. He decided to go back down the road to the public house because of what had happened to him. He ran ahead leaving the appellant and another young man to the rear. When he was approaching the public house he saw that his brother Barry was involved in a fight. He also saw that there were two persons standing round Green. They looked as if they were going to attack him with their hands. He ran at them with a stick and hit one of them, once only, on the head or body. At that point Green was "backing off". He dropped the stick and ran into the crowd where he saw Barry his brother. He had obtained the stick from outside a shop or in a garden. As he put it, it was "anything to get those who had battered him". He knew that Barry Stuart had gone down to the public house because of what had happened to him. He did not see Green strike the person whom he had struck. He did not see a knife in Green's hand and did not know that he was about to use one. He reckoned that he had hit the deceased. This was in order to help Green. There were 25 or 30 persons fighting outside the public house. He had been reluctant to say too much about Green as he was frightened of him. He had also been scared to admit that he had hit the deceased, lest his family take reprisal against him. He was punched and fell to the ground. He was put in a police car, but let himself out of it and went up the road on his own, eventually coming back to the house of Paul Stuart where he got cleaned up. In the house people were discussing how to stab someone, and saying that it kept on getting harder each time the knife was put in. He had wanted to avoid giving evidence. He had not told Barry or anyone else that he had struck someone till a couple of months before he gave evidence, i.e. some time in 1998.
 Barry Stuart gave evidence that when he was at Paul Stuart's house news came that his brother Craig had been beaten up at the public house and was "half dead". He agreed to go over and get Craig. He went to the public house with Green and another young man. On the way a number of other youths started to follow. These did not include the appellant. The witness went into the lounge of the public house. Immediately there was a "riot". All of the company stood up and the witness and his companions were pushed out. He ended up some 10-15 feet from the public house on his own. People were running about. He had been punched in the function suite and in the hallway of the public house. Outside he was involved in a fight with someone else. He saw the appellant running about, being chased by someone who was wearing a shell suit. The appellant was "taking the mickey" out of him for wearing it. He also saw a woman hitting someone with a shoe. He was directed to a car and sat in the front passenger seat. Green was in the back of the car. He was covered with blood, and said that he had "done" or "stabbed" someone. A young woman was also in the back of the car. The car was driven to the house of Paul Stuart. At the house Green said that he had grabbed a guy, held him down and stabbed him three times. He had bent the knife in the course of doing so. He had gripped him with his left arm. He "twisted back up and did it again". He had hidden the knife near the burn. The witness thought that Craig Stuart came to the house later on before the police arrived. Craig told him that he had hit somebody with a stick. This was when the appellant's appeal was coming up.
 For the appellant Mr. Boag-Thompson submitted that the additional evidence, and in particular that of Green, strengthened the proposition that Green was acting on his own and hence this tended to exclude concert. He founded on evidence that the actions of Green and the other assailant of the deceased took place within a very short space of time of each other. Next, and more importantly, the additional evidence should be regarded as significant evidence as to the identity of the other assailant. Neither Green nor Craig Stuart were related to the appellant. Green had demonstrated that at the time of the trial he was merely interested in looking after himself, with callous disregard for whether the appellant was convicted and sentenced for a crime which he did not commit. However, having achieved his object of getting off as lightly as he could, the position was different. Craig Stuart had come to admit that he had struck the deceased with a stick. On the evidence now given by him and Green, it was plain that what he had in his hand was not a knife, nor even a shiny object. Mr. Boag-Thompson also founded on the evidence given by Craig Stuart that he was wearing a black and white checked shirt. At the trial Detective Constable Rae gave evidence that he had taken possession of the appellant's clothing, namely a beige sweatshirt and a denim jacket. The appellant had given evidence at the trial that he had not been wearing a checked shirt. The importance of this was that Richard Carlyle had given evidence that the assailant, whom he identified as the appellant, was wearing a checked shirt. In these circumstances Mr. Boag-Thompson submitted that the evidence as to concert might be subject to attack, and that the evidence bearing on identification was bound to be of such a nature as to be significant, being capable of being held both credible and reliable.
 The approach to additional evidence as a ground of appeal has been discussed in a number of recent decisions. We take as our starting point the well-known passage in the Opinion of the Court, delivered by Lord Justice General Emslie, in Cameron v. H.M. Advocate 1987 S.C.C.R. 608. At page 618 he stated that, since the introduction in 1980 of the power to authorise a fresh prosecution, the success of an appeal based on additional evidence no longer depended on whether the significance of that evidence was such that the jury would have been bound to acquit. Even when that could not be said, there must nevertheless be circumstances in which a court would be entitled to be satisfied that a miscarriage of justice had occurred. He continued:
"What then are the circumstances? In our opinion they must be such that the court is persuaded that a verdict returned in ignorance of that additional evidence must be regarded as a miscarriage of justice. Plainly, the court will require to be satisfied not merely that the additional evidence was relevant for consideration by the trial jury. Setting aside the verdict of a jury is no light matter, and before the court can hold that there has been a miscarriage of justice it will, under reference to the language of section 228(2), require to be satisfied that the additional evidence is not merely evidence which it would have been relevant to lead at the trial but that it is relevant evidence of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice. The decision on the issue of the significance of additional evidence is for the appeal court, and before the court will be in a position to decide that the verdict of the jury represents a miscarriage of justice, it will require to be satisfied that the additional evidence is important evidence, of such a kind and quality that it was likely to have been found by a reasonable jury under proper directions of material assistance in their consideration of a critical issue which emerged at the trial.
This, in our opinion, will require the appeal court to be persuaded in the first place that the witnesses who have given the additional evidence were credible and that the evidence given was plainly reliable or was at least capable of being so regarded by a reasonable jury. It will also, however, require the appeal court to be satisfied that the additional evidence would have been likely to have had a material bearing upon, or a material part to play in, a reasonable jury's determination of a critical issue at the trial".
 Although the provisions of the Criminal Procedure (Scotland) Act 1975, to which that Opinion was directed, have been replaced by the provisions of the 1995 Act, subject to the amendments effected by the Crime and Punishment (Scotland) Act 1997, there is no essential difference in the language with which we are concerned. We leave to one side for the moment the question whether there is a reasonable explanation why the additional evidence was not heard at the original trial since that raises a separate issue.
 In the present appeal, and in the appeal of McLay, there was discussion as to the import of the approach described by Lord Justice General Emslie. In the passage which we have quoted above he stated that the appeal court would require to be persuaded that the witnesses who had given the additional evidence "were credible and that the evidence given was plainly reliable or was at least capable of being so regarded by a reasonable jury". It was pointed out that in Church v. H.M. Advocate 1996 S.C.C.R. 29, Lord Justice General Hope, in giving the Opinion of the Court sought, at pages 32-33, to "clarify the approach which must be taken to the examination of additional evidence at this stage in the appeal". At page 33 he said:
"The question which remains to be considered therefore is the reliability of this additional evidence. Now, when questions are raised about the credibility and reliability of witnesses, these must of course be considered by the appeal court. But there is a difference between the way in which these questions are dealt with in the trial court and the way in which they must be dealt with at the stage of an appeal. It is the function of the trial court, that is to say, of the jury under the solemn procedure, to decide issues of fact. For this purpose it will be necessary for that court to decide whether a witness is credible and whether the evidence which has been given by a credible witness is reliable. But the function of the appeal court is to act as a court of review. This is made clear by the opening words of section 228(2). It may reject evidence which in its opinion no reasonable jury would regard as credible or reliable. Evidence which is of that character cannot be held to be significant evidence, the absence of which from the trial was a miscarriage of justice. But if it finds that the evidence was capable of being found by a reasonable jury, properly directed, to be both credible and reliable, that will be sufficient for the purposes of the appeal. Questions of fine detail, which might have led the trial court, after careful analysis, to reject the evidence, must be distinguished from questions of general impression about its quality. The appeal court must recognise that there are questions of fact which bear on this matter which, had they been before the trial court, that could would have had to decide in the light of all the evidence".
In Mitchell v. H.M. Advocate 1996 S.C.C.R. 477 Lord Justice General Hope, in delivering the Opinion of the Court, observed at page 484 that the way in which the test which the test was described in Cameron might cause some difficulty, especially where it was said at page 619 that the appeal court itself must be persuaded that the witnesses who had given the additional evidence were credible. The court preferred the analysis which was set out in Church.
 Mr. Boag-Thompson submitted that this court should follow the formulation set out by Lord Justice General Hope in Church. It represented a correct interpretation of what had been said by the court in Cameron. He adopted the submission which had been made by counsel for the appellant in McLay that what was said in Church was a true clarification. The Advocate depute submitted, on the other hand, that there was a conflict between the two statements, and that the one made by Lord Justice General Emslie was the correct one. It was undesirable that in any new trial the jury should hear evidence which the appeal court regarded as lying. In the event that the court took the view that there was a conflict between the two cases it would be appropriate for the matter to be referred to a larger court.
 In approaching this question, it is important, in our view, that a number of matters should be borne in mind. First, the governing question in any appeal based on additional evidence is whether the fact that it was not heard at the trial represents a miscarriage of justice. It is not a matter of whether the additional evidence is significant - as if that represented some absolute quality - but whether it is of such significance as to lead to the conclusion that a verdict returned in ignorance of it must be regarded as a miscarriage of justice. Secondly, while it is convenient to describe the judicial approach to determining whether evidence is of that significance as a "test", it should not be forgotten that the sole test which is laid down by section 106(3)(a) is that of miscarriage of justice. It is clear, as a matter of commonsense, that the "significance" of evidence includes considerations as to its relevance, materiality and importance. It also is plain, as was pointed out by Lord Justice General Emslie, that it includes its quality in point of credibility and reliability. None of these factors is determinative. What matters is the overall impression which is created. Thirdly, we are in full agreement with the distinction which Lord Justice General Hope drew between the trial court and the appeal court. The latter is not only different in function from the former but it does not enjoy the advantages which the former has of hearing and seeing the original witnesses. Further there are inherent limitations in an appeal court determining what the former would have made of the additional evidence when considered in the context of the original evidence.
 For these reasons we consider that, for the purposes of this aspect of the significance of additional evidence, it is sufficient that the appeal court is satisfied that it is capable of being regarded by a reasonable jury as both credible and reliable. However, in saying that, we must emphasise the importance of the quality of the additional evidence. As we have pointed out above, the cogency of the additional evidence is of critical importance. It requires to be of such significance, in the words of Lord President Emslie, "that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice".
 A distinction can be drawn between the language used by the court in Cameron and that used in Church. However, in Cameron, as the court pointed out at page 619, there was no reason to doubt that the additional witness honestly believed in the truth of her evidence, and accordingly it was not necessary for the court to give close consideration to what a jury might have concluded as to her credibility. If the court intended that there should be a difference between the approach to credibility and that to reliability, one would have expected that the reasons for observing such a difference would have been spelled out. For these reasons, and in the light of the considerations which we have discussed earlier in this Opinion, we do not consider that there was any essential difference of approach between that in Cameron and that more fully spelled out in Church.
 We turn then to consider the significance of the evidence which has been given by Green, Craig Stuart and Barry Stuart.
 The evidence of Green provides, on the face of it, strong confirmation of his own guilt. However, for the purposes of the appeal, it is necessary to concentrate on evidence which points to the exculpation of the appellant. So far as that is concerned we have no difficulty in seeing the relevance and materiality of his evidence. What is in issue is the credibility and reliability of that evidence.
 It was plain that Green had lied to the police. He told them that he had not been at the public house but had been at the house of Paul Stuart. It is evident that at least at some stage he had expected that Craig Stuart and Barry Stuart would back up such an alibi. It was also plain that his evidence was in certain respects not in accordance with the affidavit which he had sworn on 24 February 1997, despite the fact that he had read it over and it had been altered at his request in certain respects. Thus, he gave evidence that, contrary to what was stated in the affidavit, Craig Stuart did not come out of the public house while he was lying on the ground; the other assailant did not smack the deceased on his face with his fist; and he did not tell Lisa Scott and Claire Weir to take his jacket because it had blood on it.
 Further, there were more fundamental problems presented by his evidence. He stated clearly that the appellant was not an assailant of the deceased, and that if this had not been the truth he would not have come to give evidence. He also claimed that he could not believe that the appellant had been detained after the fatal incident. However, this flatly contradicts his position at the trial. Not only did he lodge a notice of intention to exculpate himself by incriminating the appellant but, as we have already stated, he caused the appellant to be cross-examined by his counsel to the effect that he had used a knife on the deceased and later thrown it away. That line of cross-examination asserted not only that the appellant had attacked the deceased but also, by implication, that he had done so in concert with Green. In evidence Green stated that he had been prepared to plead guilty to murder, but the prosecutor was not willing to accept this plea but sought to have both accused convicted. The fact that Green sought in these circumstances to reduce his own culpability at the expense of the appellant casts grave doubt on the honesty of the evidence which he has now given.
 It is also the case that in certain important respects the evidence given by Green was in conflict with that given by the principal witnesses on whom the Crown founded in their case against the appellant. Not only that, but Green adopted the position that these witnesses had been lying. He said that Lisa Scott and Claire Weir were lying when they identified the appellant as forming part of the same group as himself when he ran down to the public house. He also denied admitting to Claire Weir, when he handed over his jacket, that he had stabbed someone. According to him, Norman Blair was lying when he gave evidence that Green gesticulated in the manner we have already narrated, apparently after the deceased had been fatally stabbed. Pamela Carlyle and Richard Carlyle were lying when they made a positive identification of both him and the appellant coming from the roadside and attacking the deceased. Pamela Carlyle, in particular, was lying when she said that the two accused ran up to her brother and one of them, the appellant, who was carrying a knife, "punched" him. Green also insisted that he was facing the deceased; that the other assailant must have been to his side and behind him; and that at the time when he himself stabbed the deceased there was nobody else there. He claimed that no one witnessed the incident between him and the deceased. By contrast, Richard Carlyle described the scene as a "mad battlefield". In addition Green denied saying to Lisa Scott that he had stabbed the deceased three times and had remarked how deep the knife had gone in. His position was that she would not have been allowed into Paul Stuart's house.
 Green's evidence about the involvement of Craig Stuart was evasive. He was apparently reluctant to name the other assailant, although he was emphatic that it was not the appellant. He stated that he recognised the other assailant as someone known to him, and later said that he did not know, but only thought, that it was Craig Stuart. He appeared to be surprised that his unambiguous statement in his affidavit that it was Craig Stuart had been made for any purpose other than the information of those representing the appellant.
 In all these circumstances we have come to the clear conclusion that no reasonable jury could have confidence that the account given by Green as to the non-involvement of the appellant or as to his acting independently of the other assailant was evidence which he gave honestly believing it to be the truth. In any event we do not consider that the jury could regard his evidence as reliable.
 The evidence given by Barry Stuart can be dealt with shortly. It lends no material support to the appellant's appeal. As regards his brother, Craig Stuart, his statement in evidence that he hit someone whom he believed to be the deceased did not appear in either of his affidavits dated 26 June 1997 and 27 November 1998. In the latter affidavit he stated at para. 6:
"We saw a crowd of people coming out of the Drumgeith. I would say there were about 10 or 15 people outside the Drumgeith. We ran down with me in the front. Stewart Kidd and David Low were somewhere behind me. It is not far from the Circle to the Drumgeith. As I got to the Drumgeith I remember seeing my brother fighting. Barry was the first person outside the pub fighting. There was a wee rammy round about him. I would say this happened about 15 feet or so to the side of the Drumgeith door on the Drumgeith Road side. I ran into the crowd with a stick or a bottle. I was waiving the stick about trying to hit people, trying to get them off my brother. I think it was a stick rather than a bottle and I think it was about 2, to about 21/2 feet long".
Craig Stuart stated in evidence that he had told his brother he had hit someone when the appellant's appeal came up. This was a couple of months before he gave evidence on 17 February 1999. He claimed that he had withheld this up to that stage since he was concerned lest he "got the jail". He did not believe that he had struck the deceased until he became aware of the contents of a letter which Green had written from prison to his cousin Paul Stuart. He then decided to tell his brother Barry. Craig Stuart also accepted that at the time when he was seen by the police after the fatal incident he told them a pack of lies, as he did not want to be involved. He denied being on the scene. He claimed that he was concerned about being blamed for what happened. It is impossible to understand that explanation standing the fact that until comparatively recently he was, so he claimed, unaware that it was the deceased whom he had struck. Craig Stuart also endeavoured, in a totalling unconvincing way, to suggest that he had a resemblance to the appellant. He was unable to explain why, when he was principally concerned with going to the rescue of his brother, he decided to strike the deceased first. He too described Green as standing in front of the deceased in contradiction to the principal eye witnesses of the incident. On his account he did not fit into the position occupied by the appellant, according to the Crown evidence. He denied standing with his hands in the air as Norman Blair had described. No woman had tried to hit him with a shoe. In view of all these features it is highly dubious whether the evidence given by Craig Stuart that he was an assailant of the deceased was an honest account. In any event, having regard to the fact that it appeared to be derived from information provided by Green, and the incident which he described was not otherwise identified with the fatal incident, we are quite unable to regard his evidence as to his involvement as evidence which a reasonable jury could regard as reliable.
 We should add that on any view we do not consider that the evidence of Craig Stuart as to his wearing a black and white checked shirt is material. As the Advocate depute pointed out, it was for the jury to decide what significance to attach to the fact that Richard Carlyle gave evidence that the other assailant wore such a shirt. He also pointed out that there had been evidence that at about 1240 a.m., i.e. about one hour and ten minutes after the incident outside the public house, police went to Craig Stuart's house and there took possession of the clothing which he was wearing on the upper part of his body, which consisted of a bloodstained jacket and a T-shirt. They were labelled productions at the trial. It also had to be borne in mind that the additional evidence given by Craig Stuart was that he was wearing a checked shirt under a jacket.
 In view of our conclusions we are not satisfied that the evidence tendered on behalf of the appellant was of such significance as to lead to the conclusion that a miscarriage of justice must have occurred.
 We have not so far entered into any discussion of whether, in the circumstances of the present case, the appellant would have demonstrated that there was a reasonable explanation why the evidence founded on was not heard at the trial. In the course of his submissions the Advocate depute accepted that it might be going too far to assert that those representing the appellant should have attempted to secure a separation of trials (so that Green could be called as a witness for the appellant), or that in any event they should have sought, even if unsuccessfully, to have Green called in the trial which took place. However, it was, he submitted, important that special consideration should be given to the position of a co-accused. If he had given any evidence, it would have been incumbent on the appellant to demonstrate a "reasonable explanation" for the purposes of subsection (3C) of section 106, supported by independent evidence in accordance with subsection (3D). Although these provisions did not strictly apply in the circumstances of the present case, since Green did not give evidence, the court should adopt an analogous approach in considering whether a reasonable explanation had been given for the purposes of subsection (3A). Standing the conclusion which we have already reached, we do not find it necessary to reach a concluded view on this argument, and accordingly reserve our opinion as to its soundness.
 We will accordingly refuse the appeal against conviction.