Scottish High Court of Justiciary Decisons

ALLAN BRYAN RENNIE v. HER MAJESTY'S ADVOCATE [2001] ScotHC 40 (13th June, 2001)

[1] The appellant in this case originally faced an indictment containing four charges. He pled not guilty and went to trial. At the close of the Crown case, charges (3) and (4) were withdrawn. In due course, on 20 May 1997, the appellant was convicted on charges (1) and (2), subject to the deletions described later. Charge (1) was in the following terms:

Charge (2) was a charge of failure to obtain medical attention for the said child after she was known to have sustained serious life threatening injuries, brought under section 12 of the Children and Young Persons (Scotland) Act 1937.

[2] Following his conviction, there was lodged on his behalf a note of appeal against conviction on a number of grounds, to which reference need not now be made. Leave to appeal was granted on 17 October 1997. However, when the case came before this court on 19 January 1999, it was indicated on behalf of the appellant that those grounds of appeal were not to be insisted in, but that other grounds of appeal were to be developed. Thereafter, on 26 April 2000, certain additional grounds of appeal were lodged. In these additional grounds, reliance was placed upon the existence of fresh evidence, the existence and significance of which was not known at the time of the trial. On 26 October 2000, the court allowed these additional grounds of appeal to be received and directed that the evidence of certain witnesses should be heard by the full court. These were (1) Craig Moverley, (2) Paul David Rance, (3) Mary Ann Elizabeth Moverley, and (4) Marie Terris. Following that, on 10 April 2001, on the motion of the respondent, the court allowed the respondent to call Samantha White and Diane Taylor, listed as witnesses Nos. 3 and 6 respectively on the original indictment, as witnesses at the hearing of fresh evidence, which was to take place on 8 May 2001. In addition, on 1 May 2001 the court, on the application of the respondent at a procedural hearing allowed the respondent to call a further additional witness, Pauline Amanda Georgina White, witness No. 5 on the original indictment. Thereafter, the hearing of the evidence referred to duly took place on 8 May 2001.

[3] Before coming to deal with the nature and significance of the fresh evidence which we have heard, it is appropriate to describe briefly the factual background to the appellant's conviction, as described by the trial judge in his report to us. The victim, Karisha Jane White, was 16 months old at the time of her death. She was the daughter of Samantha Jane White and Craig Moverley. They and she had moved from Shetland to Girvan in the autumn of 1995. The relationship between Samantha White and Craig Moverley had been troubled and they separated in the summer of 1996 when he returned to Shetland. Shortly afterwards, the appellant, despite being then in a relationship with another woman by whom he had two children, formed a relationship with Samantha White. The trial judge indicates that, at the close of the Crown case, the advocate depute was permitted to amend charge (1) by deleting the averments of repeated punching on the body. Furthermore, in his address to the jury, he presented the case on the basis that all that had been done had been done on 28 December 1996 and the jury were accordingly directed that, in the event of their returning a verdict of guilty, they should delete reference to 27 December.

[4] The medical evidence disclosed that Karisha had suffered multiple injuries within the 24 hours before her death, which occurred at a time not precisely established in the late morning of 28 December 1996. The fatal injury was a complex fracture or fractures of the skull, involving the occipital and left parietal bones, with some depression and with springing of the sutures of the skull, which led to brain swelling and death. There was evidence that the fractures were caused within 12 hours of death. The other injuries, suffered within 24 hours of death, were mainly to the head and face. They included injuries which were clearly identified as non-accidental, including a slap mark on the right cheek and a pinch mark on one ear. There were injuries to the mouth, which, while conceivably accidental, were said to be typical of non-accidental injury. The mouth injuries were the only ones which caused external bleeding. The skull fractures were of such severity that one of the pathologist witnesses said that she had only seen the like in a serious road traffic accident. The appellant gave evidence of having fallen down stairs while holding Karisha, but the jury by its verdict rejected that possible accidental explanation of the skull fractures. The trial judge informs us that the jury were well entitled to reject that evidence, there having been no injuries on the appellant or on Karisha's body and limbs of the sort which, on the evidence, would have been likely to have been caused by such a fall. There was ample evidence to entitle the jury to conclude that the skull fractures were not accidentally caused.

[5] Karisha also suffered burning injuries to her face, with spattering onto her shoulders and upper torso. The appellant gave evidence of having wiped her face, after it was found that she had suffered the other injuries, with a cloth dipped in hot water. There was medical evidence that a child's skin would burn very quickly on the application of water of the temperature of the hot water supply in the flat concerned. The jury were directed that the wiping of Karisha's face would not constitute an assault unless they accepted that it was done with the intention of harming her. By their verdict, the jury deleted reference to the burning injuries. They may therefore be taken to have accepted that those injuries were accidental. The jury also, in their verdict, deleted reference to repeated scratching of the body.

[6] The Crown case identifying the appellant as the perpetrator of the fatal assault on Karisha depended essentially on the evidence of Samantha White. Her evidence was subjected to attack on the basis that she too had had an opportunity to inflict the fatal injuries, and reference was made in the evidence and in the defence submissions to (i) episodes of lack of care of Karisha on her part, (ii) episodes of rough handling of Karisha by her, (iii) various entries in her diary showing that she was at times seriously depressed, and (iv) the fact that the appellant was on the verge of terminating his relationship with her against her wishes. The jury was directed that the features of Samantha White's evidence which were essential to the Crown case were (1) that she had put Karisha to bed, unharmed, at about 9.45 p.m. on 27 December, (2) that she did not herself harm Karisha in any way on 28 December, and (3) that the appellant was the only other person who had had the opportunity to harm Karisha, he having been left alone with her on two occasions in the course of the night when Samantha White left the flat. The jury was further directed that, unless they accepted these elements of Samantha White's evidence, there was insufficient evidence to support conviction of the appellant on the charge of murder. It is evident from their verdict that the jury did accept those aspects of Samantha White's evidence. From that evidence, the inference that the appellant was the perpetrator of the fatal assault was drawn by the jury.

[7] The Crown relied, for corroboration of the appellant's guilt, on various chapters of evidence, including evidence relating to bloodstains, the clothing worn by the various participants, and noises that were heard by various witnesses. The main corroborative evidence, however, came from Samantha White's two sisters, who had telephoned her from Shetland in the course of the night of 27 to 28 December. These were Pauline Amanda Georgina White and Diane Louise White Taylor. By accident, the telephone line remained open when the appellant and Samantha White thought that the call had come to an end. As a result, the sisters were able to listen to events in Samantha White's flat for a period of almost an hour. During that period, they heard Samantha White leave the flat, then later heard Karisha scream, then moan, then heard her being brought into the livingroom of the flat. Later Samantha White was heard to return.

[8] When Samantha White returned to the flat after a second period of absence, the quarrel which had been proceeding intermittently between her and the appellant all night continued for a time. The appellant then left the flat and went to his other girlfriend's house for a period between about 6.30 a.m. and 8.30 a.m. Some time after his return to 5 Ballochtoul, he went into Karisha's bedroom, and, on his account, found her injured and informed Samantha White. A considerable period of time then passed when nothing was done to summon medical help. According to the appellant, that was at Samantha White's request, because she was afraid that, if help was sought, the Social Work Department would take Karisha from her. According to Samantha White, the omission to fetch medical help was at the appellant's suggestion. The jury was directed that, if they took the view that Karisha was, at the material time, in the appellant's charge or care, they could, notwithstanding the conflict as to how it came about that help was not sought, convict him of wilful neglect on the basis that he had either made, or acquiesced in, a decision not to fetch medical help. In the event, the jury convicted the appellant of the statutory charge.

[9] When this matter came before us on 8 May 2001, evidence on behalf of the appellant was led firstly from Pauline Amanda Georgina White. She explained that she had indeed telephoned to the flat of her sister Samantha during the night in question. On that occasion she had spoken to the appellant and was given to understand that Samantha would not come to the telephone. At the end of the conversation, the telephone receiver in Samantha's flat was not properly replaced on the telephone instrument, with the result that the line remained open. In these circumstances, the witness had continued to listen and had overhead certain things. An argument had taken place between Samantha and the appellant, following which Samantha had left the house. The witness had heard her say that she was leaving and had heard the door close. Some little time later, she had heard other noises, in particular a child screaming. In all she had listened to occurrences in the flat for a period of about 50 minutes, from around 3 a.m. Later in the day on 28 December, around 11 to 11.30 a.m., the witness had again spoken to Samantha on the telephone and had been informed that the child Karisha was dead. The witness told her sister Diane and also her mother of this information. She had also decided that the father of the child, Craig Moverley, should also be told. The witness stated that she had not known how the death of the child had occurred. In particular, she had not mentioned the possibility that "Tam the rapist" had been involved. She thought that she probably had told Craig Moverley about what she had heard on the telephone during the course of the night. Four years had passed, however, and she could not be sure. She did remember telling her sister Samantha on the telephone, after having been informed of the death, that she should keep the appellant in the house. The witness thought that her sister Diane had not mentioned a "Tam" to Craig Moverley. The witness indicated that, during the early hours of the morning, her mother and sister Diane had also listened to the telephone.

[10] In cross-examination this witness gave more detail concerning the conversations which she had had in the morning on 28 December with a number of people in Lerwick, after hearing from her sister Samantha about the death of the child. She had met Mary Moverley, Craig's mother, in her house, to which the witness had gone in the hope of finding Craig Moverley. Paul David Rance had been there at the time. He was a friend of Mary Moverley. The witness did not think that a "Tam" had been mentioned in Mary Moverley's house, although her recollection was poor. The witness and her sister Diane had been taken by Paul Rance to the house where Craig Moverley was to be found. She had then spent about 15 minutes with him appraising him of the situation. The main concern had been to obtain a flight from Shetland to Glasgow as soon as possible, so that the witness, Diane and Craig Moverley could be with Samantha. All three persons had indeed gone on the same flight from Shetland, but this witness had not discussed the cause of the death with Craig Moverley during the flight. Referring to the telephone conversation with Samantha, in which the news of the death was given, the witness said that Samantha had been hysterical and only just able to converse. The witness had asked Samantha how the death had happened; Samantha had said that the appellant had been in the house at the material time. The witness had advised Samantha to tell the police and not to let the appellant go. In that conversation, nothing had been said of any other person having come into the house. The witness explained that she herself had informed her sister Diane in Lerwick about the death of the child. She lived nearby. Diane had not spoken directly to Samantha on the telephone following the death of the child. Any information that Diane possessed had come from the witness. The witness did not remember Diane having mentioned a "Tam". The witness accepted that there could have been some speculation on her part, or on the part of Diane, as to how the death had occurred, since everyone was reluctant to conclude that a family member was responsible. In answer to a question by the court, this witness said that she thought that she had told Craig Moverley regarding her having overheard certain events on the telephone by the time that she, Diane, and he had arrived at Ayr on 28 December.

[11] Mrs. Diane Louise White Taylor was also led as a witness for the appellant. She had known of her sister Samantha's relationship with the appellant. The witness had met him on one occasion, probably in July 1996. This witness was also aware that another man had pestered her sister Samantha, she thought around May 1996. Samantha had told her that someone had come to her door and had wanted to get into her flat; she had been scared by this occurrence. However, Samantha had later explained to the witness that the appellant had "sorted it", meaning that the problem was at an end. Describing the telephone call in the early hours of 28 December, the witness stated that she had spoken to her sister Samantha on the telephone at the beginning of the call, but not to anyone else. The conversation had not endured for very long. The telephone in Samantha's flat had been thrown down and not hung up properly, with the result that the line remained open. Arguments between Samantha and the appellant were heard. The witness heard Samantha leave the flat, after which a scream from Karisha was heard. The witness did not know where Samantha had gone. The scream was one which the witness would never forget. Later on 28 December the witness had been informed by her sister Pauline that Karisha was dead. She had been due to go to Girvan for the New Year and decided to go there immediately, on receiving this news. The witness had accompanied Pauline in their endeavour to find Craig Moverley to tell him of the death. Craig was not to be found at his mother's house. The witness said that she had told Mary Moverley as much as she knew, that is to say that the child had died, that the police were present and that they did not know who had done it. Paul Rance had been present in Mary Moverley's house. The witness stated that, on that occasion, she had said that she thought that maybe a stranger had got into the house and done the deed, although her first reaction to the news was that the appellant was responsible, but she did not want to believe that. She had not been told by Samantha that someone had broken into the house. Going into detail about the conversation in Mary Moverley's house, the witness said that she had said that maybe a stranger had done it, "perhaps that mad rapist". That was a reference to the man who had pestered Samantha earlier in 1996. Later on the witness had found Craig Moverley, who was in company with Marie Terris. She had told Craig and Marie that Karisha was dead. She had said that neither she nor Pauline knew what had happened. She had not referred to a "Tam". The witness's main concern had been to get to Ayr immediately and then find out what had happened.

[12] Elaborating in cross-examination, the witness explained that Samantha had told her of a problem with a man who had pestered her to whom the witness had referred as "the mad rapist" in the conversation in Marie Terris' house. The witness had not mentioned a "mad rapist" to Mary Moverley; she spoke only of a stranger. At the time she had been very unwilling to believe that the appellant had been responsible for the death. She had been anxious to think that a stranger might have been responsible. However, Pauline had said to the witness that she had thought that the appellant had been responsible. During the course of the journey to Ayr, this witness had sat with her sister Pauline; there had been a certain amount of speculation as to what had happened. The witness had heard from Samantha earlier about the man who had pestered her. Samantha had also received anonymous poems. It appeared that a neighbour of Samantha had told her that the man who had been at her door had allegedly raped a person in Girvan. She had never heard the name of this individual.

[13] Mary Ann Elizabeth Moverley was also led in evidence on behalf of the appellant. She remembered the visit of Diane and Pauline to her house at about midday on 28 December 1996. On that occasion Diane had done most of the talking. Paul Rance had been present. The two sisters had been looking for Craig Moverley. They had explained that the reason for that was that Karisha had been murdered. This witness had asked for an explanation of this event; the reply given was to the effect that someone could have broken into the flat off the street. No mention had been made of the telephone conversation the night before. Paul Rance had then taken Pauline and Diane to the house where Craig Moverley was living with his new girlfriend. This witness accepted in cross-examination that she had been upset and shocked when she heard the news of Karisha's death. Diane and Pauline had themselves been in a state of great concern and were most anxious to obtain a flight out of Shetland, so that they could join Samantha. Later this witness had herself gone to Ayr, where she had been told of the prolonged telephone call during the early hours of the morning of 28 December. In particular, she had spoken to Diane and Pauline in Ayr police office where they had told her of this telephone call and explained that they had heard Karisha scream. As regards the conversation between the witness and Diane and Pauline on 28 December in Lerwick, the witness expressed the opinion that the two sisters had been guessing or speculating as to what might have occurred. At one point Diane and Pauline had said that, if their sister Samantha had done the deed, they would never speak to her again. This witness considered that neither Diane nor Pauline really knew what had happened. They appeared from time to time to say contradictory things. When they had told the witness of the telephone call in the early hours of the morning, she considered that they had then been blaming the appellant for the event.

[14] Paul David Rance was led in evidence on behalf of the appellant. He spoke of the visit of Diane and Pauline to Mary Moverley's house on the morning of 28 December. By way of explanation as to why they wished to see Craig Moverley, they said that Karisha had been murdered. They stated that it could have been someone who had broken into the house from the street; it could have been a "mad rapist". This witness had then transported the two sisters to the house where Craig Moverley was living. At some stage one of the sisters said "It could have been big Tam". At the time in question, it was obvious that Pauline had been crying and was upset; Diane did most of the talking. The background was that there was some hostility between the White family and the Moverley family, on account of the circumstances of the breakdown of the relationship between Craig Moverley and Samantha White.

[15] Marie Terris was led in evidence on behalf of the appellant. Craig Moverley had been in the house of the witness on the morning of 28 December 1996 when Diane and Pauline, in company with Paul Rance, arrived. They had entered the house, where Craig Moverley was still sleeping. In his bedroom it was explained that Karisha had been murdered. Later on, in the livingroom of this witness's house Diane repeated that Karisha had been murdered, possibly, "by some Tam guy". The witness could not remember the precise words that had been used. It was evident to this witness that Diane herself did not really know what had happened. Mention was made of a telephone call, to which Diane and Pauline had been parties during the course of the previous night, to Samantha; the telephone had not been put down properly and, after the conversation had ended, the two sisters had heard certain things occurring in Samantha's flat. The witness could not remember details of what was said about that. This witness did not consider that the mentioning by Pauline of a name in her livingroom was significant at the time, since no one had anything to go on.

[16] Craig Moverley was also led in evidence for the appellant. He explained the background of the relationship which he had had with Samantha White, as a result of which Karisha had been born. He and Samantha had separated in June 1996, after which the witness had moved back to Shetland. This witness had had some concerns regarding the care which Karisha had received at the hands of her mother. After the separation, this witness had had no contact with Karisha, although he had sent money to Samantha for her. In the weeks before Karisha's death, Diane and Pauline White had asked the witness to contact Samantha for an urgent reason. The witness had become aware that Samantha had formed a relationship with the appellant, who, it had been said, treated Karisha as if she were his own child. The witness described the circumstances of his having been informed about Karisha's death when he had been in Marie Terris' house. The witness did not take in at first what Pauline and Diane said to him, since he had been sleeping. However, after waking up, the witness had run down stairs and asked them what had happened. Pauline had said "We don't know. Samantha says someone must have come in and done it." They said that it had been "maybe some Tam guy", who the witness understood to be a down-and-out who had pestered Samantha. No mention had been made of anything overheard by Pauline or Diane on the telephone. After receiving information about the child's death the witness had gone to Ayr on the same flight as Diane and Pauline. No further information had been given to him during the course of the journey, so far as he could recall. This witness had been a witness at the trial of the appellant, but he had not been asked any questions regarding conversations which he had had with Diane or Pauline before going to Ayr following the murder. He had read an account of the appellant's testimony in the trial in a newspaper, to the effect that Samantha had told the appellant that someone had broken into the house where the child was. The witness had become concerned after the trial about what had been said to him on the morning of 28 December. This witness stated that he believed that Samantha had been responsible for his daughter's death. He explained that he had been in a state of shock on the occasion when Diane and Pauline had conveyed to him the news that Karisha was dead. In cross-examination the witness insisted that someone called "Tam" had been mentioned in the conversation. He had understood this person to have been someone who had pestered Samantha. The witness did not remember any reference being made in the conversation to a "mad rapist". In the livingroom of Marie Terris' house Pauline had stated that she and Diane did not know what had happened, but had stated that Samantha thought that someone had come into the house off the street and done it. The witness had realised that those remarks might be significant, after he had read the account of the appellant's evidence at the trial. The witness opined that he had not expected that justice would be done at the original trial, because the White family were manipulators and deceivers. He had expected that the appellant would be wrongly convicted. His own character had been destroyed at the trial. The witness said that he had conveyed his reservations about the trial to the solicitor acting for the appellant. The witness had not said in his evidence in the original trial anything about what Diane and Pauline had said to him in Lerwick, because he did not think that it would do any good. The witness explained that he had mentioned his concerns about the trial to Paul Rance and his mother after the trial. This witness was referred to the terms of an affidavit, production No. 10, which he had given and, in particular, to paragraph 6 thereof. He agreed that Diane and Pauline had expressed the view to him on the way to

[17] Samantha Jane White was the only witness led in evidence on behalf of the respondent at the hearing before us. She explained her involvement in the whole matter. She said that she had received a phone call from her sister Pauline in Shetland some time after 11 a.m. on 28 December 1996. She was hysterical at that time, since she had very recently been informed that Karisha had died as a result of injury. Asked what she had said to Pauline, she said that Karisha was dead. The police and an ambulance had been present at her flat at the time and she had been told to get off the telephone. Pauline had asked whether the appellant was there and, on being told that he was, she had said that Samantha should not let him out of the house. The witness testified that she had not said who might have been responsible for the death. She did not think that she had said that someone could have broken into the house and committed the murder, although she agreed that she had said such a thing to the police at the police station. She had been questioned under tape recorded conditions and had given a detailed statement to the police. She had said that someone might have come in and harmed Karisha. As regards the telephone conversation with Pauline, she said that she had not mentioned a "mad rapist" so far as she could recall. Further, she could not recall mentioning a man's name. She stated that in June 1996 she had met a man at the house of a neighbour and that on two separate occasions she thought that he had rung her doorbell. The neighbour had stated that this man was allegedly a rapist. The witness said that she had told the appellant about this and he had told her that he would "sort it". She had never seen this man after August 1996. She could not say positively that this man had rung her doorbell, although she believed that that was the case. This witness had been given a number of poems between April and June 1996, written by an anonymous author; they were agreeable and not unpleasant. The witness did not know who had written them. Samantha White said that she had told her sister Diane about these matters; she spoke to Diane on the telephone every night. Questioned as to why she had told the police that she thought that someone could have come into the flat and done the deed, she explained that, at the time of her interview with the police, she had not wanted to believe that the appellant was responsible for the murder. She trusted him at that time. She found it difficult to believe what was happening. She could not believe that the appellant was evil and had murdered her child. She wanted to believe that a third party was responsible, although she had no basis for that belief. At a later stage, the witness had reconsidered her position. The witness was pressed in cross-examination as to whether she might have told Pauline that someone had broken into her house. She agreed that she might possibly have said that. She denied that she had been covering up for what she herself had done.

[18] Senior counsel for the appellant addressed us on the evidence which we had heard. He drew our attention to Kidd v. H.M. Advocate 2000 S.C.C.R. 513, where there was to be found the criterion which had to be applied to the evidence which the court had heard. The proper approach to the matter was set forth in paragraphs 23 and 24 of the Opinion of the Court in that case. He pointed out that, at the trial, the main issue depended on the credibility of Samantha Jane White. The Crown had had to look to the evidence of Diane Louise White Taylor and Pauline Amanda Georgina White for corroboration. Accordingly their credibility and reliability were crucial to the success of the Crown case. The position had been that the statement of Samantha made to the appellant regarding a possible break-in had been before the jury. However, what had not been before the jury was the evidence regarding the statements made by Diane and Pauline regarding "Tam". Had the jury been aware of those matters, that would have affected their view of the credibility and reliability of the three witnesses concerned. Samantha had agreed that she might have said something to Diane regarding the alleged break-in by "Tam". These matters all affected the credibility of the account given by Pauline and Diane of the telephone conversation which had occurred in the early hours of 28 December 1996. Had they indeed heard the things which they claimed to have heard, it was to be supposed that they would have mentioned that to the various other interested persons into contact with whom they had come on that day and not have said that someone might have broken into the flat. The circumstances in Girvan tended to militate against the responsibility of the appellant for the murder. The child had been in the sole care of her mother until 1 a.m. on the date in question. There had been quite a lot of evidence regarding the concern over Samantha's care of Karisha. Samantha admitted to having taken controlled drugs around the time in question. She had had an association with the appellant and had relationships with others. The jury had to have been able to exclude Samantha as a perpetrator. Had they known that she had been suggesting a break-in by "Tam" that would have cast doubt over her credibility and reliability. Accordingly a verdict reached in the absence of the evidence now relied upon amounted to a miscarriage of justice. There was a reasonable explanation as to why the evidence now relied upon was not available at the trial, which was that it was not known to the appellant's advisers at the material time. The evidence now available as to what had been said by Pauline and Diane in Shetland on 28 December was based upon the evidence of witnesses who were apparently credible and reliable.

[19] The advocate depute on behalf of the respondent agreed that the test to be applied was clear and was set forth in Kidd v. H.M. Advocate. He agreed that the credibility and reliability of the three sisters were crucial to the Crown's case. The real issue was the impact, if any, of the new evidence which the court had heard. It had been suggested that the evidence which Pauline and Diane had given before the court was in conflict with the evidence which they had given at the trial in relation to the alleged argument between the appellant and Samantha on 28 December. However, that was not so. Pauline and Diane had given purely factual evidence relating to the things overheard on the telephone. They did not attempt to interpret what they had heard. In this connection reference was made to the evidence of Pauline and Diane at the trial, available to the court in transcripts. That was all purely factual evidence. It was important to note that Pauline, in the telephone call to Samantha during the morning of 28 December, had advised her that she should keep the appellant in the house; that was an indication of Pauline's contemporaneous view as to what had happened, based on what she had heard earlier on the telephone. Furthermore, Marie Terris today had stated that Diane had indeed mentioned what she had heard on the telephone during the early hours of the morning, when she and Pauline visited her house to see Craig Moverley. In any event, whatever may have been said by Diane or Pauline to the various persons with whom they had come into contact after hearing of the death of the child, the proper view of that material was that it was speculation. Mary Moverley and Marie Terris accepted that in evidence. It was apparent from the transcript of the speech to the jury by counsel for the defence at the trial that elaborate criticism of the evidence of Pauline and Diane had been addressed to the jury. In the face of that, the jury had nevertheless come to the conclusion that their evidence could be accepted.

[20] It was a matter of agreement before us that the criterion which is to be applied in relation to the fresh evidence which we have heard is to be found in Kidd v. H.M. Advocate. As was said by the Lord Justice Clerk in paragraph [23] of the Opinion of the Court:

In paragraph [24] of the Opinion his Lordship continued:

[21] In considering the question which we require to address in this appeal, it is inevitable that we form a view as to the quality of the fresh evidence which we have heard. That is one of the factors which we require to consider. While there were certain inconsistencies between the evidence of the witnesses who provided fresh evidence before us, our general conclusion was that they were endeavouring to give the court an honest account of their recollection of the matters in question, albeit with difficulty more than four years after the events concerned. Having said that, we feel bound to observe that the evidence of Craig Moverley appeared to us to possess certain evident shortcomings. He seemed to be confused in regard to certain matters and parts of his evidence appeared to conflict with other parts. Furthermore, he appeared to be unable to explain why he had signed an affidavit containing material with which he claimed that he did not completely agree. Nevertheless on the basis of the fresh evidence which we have heard about what occurred in Lerwick on the morning of 28 December, we consider that, in all probability, Diane and Pauline did make mention of the possibility that some third party might have broken into Samantha's flat and been responsible for the murder. However, it appears to us that that material must be seen in context. It was evident to Mary Moverley and to Craig Moverley that the sisters appeared to be speculating. Mary Moverley said so in terms and Craig Moverley stated that Pauline had said in his presence that she did not know what had happened. We consider that account also requires to be taken of the fact that, on the morning of 28 December 1996, both Diane and Pauline were quite naturally in a state of shock and confusion as to what had occurred. Furthermore, Marie Terris, while stating that she thought the name "Tam" had been mentioned, did not think that was significant at the time because there was nothing to go on.

[22] In the course of his submissions to us, senior counsel for the appellant emphasised the importance of the issue of the credibility of Samantha White at the trial. He made the point that, had the jury known that Samantha had been suggesting that there had been a break in to the flat by some third party, possibly "Tam", that would have cast doubt over her credibility and reliability. However, we do not consider that there is force in the point made, since the fact that Samantha White did make such a suggestion was actually before the jury. At page 110 of the transcript of evidence at the trial, she was asked what, first of all, she thought had happened to Karisha. Her answer was that somebody had come in and done this, a reference to the murder. In the face of that material, plainly the jury considered that they could accept her evidence as credible and reliable.

[23] As appears from the passages which we have quoted from Kidd v. H.M. Advocate, the cogency of the additional evidence is of critical importance. It requires to be 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. In our opinion, the additional evidence tendered in this appeal is not of such significance. We consider that the evidence relied upon showed that there had been no more than somewhat wild and unguarded speculation on the part of Pauline and Diane as to the events in Girvan, which is not of sufficient cogency for the purposes relied upon.

[24] It was suggested on behalf of the appellant that had the sisters Diane and Pauline heard the things which they claimed to have heard on the telephone in the early hours of 28 December, it would have been obvious to them that they had heard things occurring at the moment of the infliction of fatal injuries on Karisha. In these circumstances it was extraordinary that they had not mentioned those matters to those into contact with whom they subsequently came. However, the evidence which we heard, in particular the evidence of Marie Terris, suggested that that was in fact what they did. She stated that, when they met her on the morning of the day in question, mention was made of a telephone call during the night to Samantha's flat. The telephone had not been put down properly at the end of that call and the sisters had heard things occurring in the flat at that time. While Marie Terris did not remember details of what was said to her about what had been heard, it appears to us to be highly significant that she did remember mention being made of the telephone call in question. To our mind that plainly indicates that Diane and Pauline had mentioned things which they had heard to her. Furthermore, Mary Moverley, in giving evidence about a conversation between herself and Diane and Pauline in Ayr police office, said that mention had been made of the telephone call in question, during the course of which they had said that they had heard Karisha's scream. It appears to us that the material to which we have just referred undermines the suggestion that the fresh evidence would have been likely to damage the credibility of Diane and Pauline in the eyes of the jury, had it been before them.

[25] For all these reasons, we consider that this appeal must be refused.