APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: XC489/03
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION
FRANCIS MARTIN THOMAS O'DONNELL
HER MAJESTY'S ADVOCATE
Appellant: Burns QC, McCluskey; Balfour & Manson
Respondent:Anthony QC, AD; Crown Agent
18 February 2004
Introduction The appellant was tried at Glasgow High Court along with Patrick Francis Devine and Mary Ryan on three charges, of murder, theft and an attempt to defeat the ends of justice. The charges related to the murder on 19/20 November 1998 of Manus O'Donnell, the appropriation of a hired motor car used in the murder for the purpose of destroying it, and the burning of the car to destroy evidence of the murder. On 3 September 1999 Ryan was convicted of all three charges, Devine was convicted of the attempt to defeat the ends of justice and the appellant was convicted of murder.  The appellant had lodged a special defence of alibi to the effect that he was in Dublin at the time of the murder. The Crown did not charge conspiracy in this case, and counsel for the appellant did not submit that the appellant could not be convicted of murder art and part if, having taken part in the planning of the murder in Scotland, he was in Ireland when it was carried out.
The background to the murder The deceased and Ryan were associated in a number of construction businesses operating at the margins of the law. They met regularly. Ryan had accompanied the deceased on a holiday to Spain in October 1998, when there had been talk of his taking part in the trade in illicit drugs. She had also accompanied him on a visit to Ireland. The deceased trusted her. By all accounts he was a private and careful man who avoided direct contact with many of the businesses in which he had an interest.  Until the summer of 1998 the appellant worked as a ganger on roadworks, latterly with Ashbourne Communications, a business with premises near Stirling. There was no evidence that the deceased was directly involved in Ashbourne Communications, but he was in the background of the business in some way. In about June 1998 the deceased gave the appellant a suit and a car and employed him as his driver. He also gave him work with one of the businesses that apparently fronted for the deceased. The appellant and the deceased were in frequent contact.  From 1998 onwards the appellant and Ryan ran an escort agency called "Pretty Woman." The appellant put the idea of the agency to his friend William McKinnon and introduced him to Ryan. The appellant told McKinnon that there was a man behind the business, to whom the appellant referred as "the man" and to whom McKinnon referred as "Mr Big." This was the deceased. After that, McKinnon was a front for the Pretty Woman business.  Soon after the murder, McKinnon gave a statement to the police that incriminated the appellant. A few months later, he retracted the statement. In particular, he retracted an allegation that the appellant had confessed to the murder in December 1998, when he and the appellant were in Blackpool. We shall refer to the alleged confession later. At first McKinnon too was accused on these charges; but after the charges against him were dropped, he became a Crown witness. McKinnon was an important witness against the appellant. There were obvious questions as to his credibility.
The events before the murder In the week beginning Monday 16 November numerous telephone calls were made between Ryan, Devine, the appellant and other associates including McKinnon and Paul McGeogh.  On Thursday 19 November 1998 there were 28 calls between Ryan and McGeogh. McGeogh telephoned Ryan at 4.15 pm. At about 4.30-4.45 pm, Ryan had a meeting with the deceased at an office at Meadowpark Street, Glasgow. For privacy, they left the office and continued their discussions in the deceased's car, which was parked outside. They arranged to meet again at 9 pm that evening at the Tinto Firs Hotel, Glasgow. At 4.45 pm, immediately after that meeting, there were telephone calls to the appellant's mobile and to Devine's mobile.  At 5.30 pm Ryan, accompanied by McGeogh, hired a Renault Megane for a period of 24 hours. Between then and 8 pm there was heavy telephone traffic. McGeogh telephoned Ryan at 8.40 pm. She telephoned the appellant at 8.46 pm. McGeogh telephoned Ryan at 8.51 pm. Devine telephoned Ryan at 8.52 pm.  At about 9 pm Ryan met the deceased at the Tinto Firs Hotel. They left a few minutes later. On the pretext that she needed fuel, Ryan persuaded the deceased that they should leave in the Megane.  Between then and 2.25 am on the following morning, the deceased was killed.
The murder The deceased was shot once in the chest from close range. The shotgun pellets entered at the middle of the chest, tracking to the right across the body. He was then shot in the back of the head, again at close range. This shot destroyed his brain and inflicted gross damage to the bone structure of the face and skull. He died instantly at that point. Two different types of cartridge were used in the murder. Thereafter the deceased was stabbed in the back, the neck and the head 22 times with considerable force, some of the blows penetrating the bone. Then his throat was cut. The body was dumped in woods near Thorntonhall wrapped in a tarpaulin supplied by Devine.  At 2.25 am the Megane was found burning in a car park. Petrol had been used to accelerate the fire.
The evidence against the appellant
(i) The telephone calls on and after Monday 16 November The analysis of the billing records for these calls was capable of supporting the inference that the individuals concerned were engaged in planning the murder. It was clear that the appellant had taken part in the flurry of calls that were made during Thursday 19 November up till 9 pm when Ryan met the deceased at the Tinto Firs Hotel. The analysis of the records of these phone calls was capable of supporting the inference that those concerned were making the arrangements to lure the deceased to his death.
The 20 November conversation McKinnnon said that he was in contact with the appellant in the week of the murder and that the appellant told him at some point that he was going "across the water." On Friday 20 November McKinnon spoke to the appellant on the telephone, believing that the appellant was in Ireland at the time. McKinnon mentioned that Ryan had been asking after the deceased. The appellant replied "Don't worry about him, he'll no' be back." At that stage the body of the deceased had not yet been found.
The production of the knife and shotgun cartridges On Saturday 21 November the appellant telephoned McKinnon at home and arranged to take him to the premises of Sovereign Cars. At Sovereign Cars, the appellant produced a lock-back knife and two shotgun cartridges from his car. The cartridges appeared to be empty and were of different colours. McKinnon asked the appellant what was going on. The appellant shook his head and said "Ah cannae ... Ah cannae ... " McKinnon said that the appellant broke up the knife and that he was with the appellant when he threw the pieces into the Clyde. At this time the body had still to be found.
The 23 November conversation On the evening of Monday 23 November McKinnon heard that the deceased's body had been found. He spoke to the appellant on the telephone. The appellant told him "Keep the heid doon, the shit's going to hit the fan."
The Blackpool confession McKinnon said that he and the appellant went to Blackpool for the first weekend in December. On 4 December, after a night out when the appellant was drunk, they returned to their bed and breakfast lodgings. McKinnon brought up the subject of the murder. The appellant began to talk about Manny (the deceased) being shot. He said "Ah done it ... Ah done it wi' thae two bams" or words to that effect. He gave details of the killing. He described how the deceased was shot across the chest. He indicated that the direction of the shot was across the chest to the right. He gesticulated about the face and neck. He said the deceased was done in the head as well. Counsel for the appellant accepts that this confession, if made, was a special knowledge confession.
The 26 November conversation
The meeting at Larbert in December 1998 Sometime in December, the appellant met Stewart Richford in Larbert. The appellant told Richford that he had put a pistol and a shotgun in the Clyde. Richford did not ask him any questions about that because, as he said, he did not want to know.
Telephone calls with Richford in January 1999 Sometime after New Year 1999 the appellant telephoned Richford. He asked him if the police had been to see him. He told Richford that McKinnon had "turned Queen's against us. I don't want you to do the same." He told Richford not to say anything to the police about the pick-up.  Later in January the appellant had another telephone conversation with Richford about the arrests that had been made in connection with the death. In the course of it, the appellant told Richford that he, the appellant, would soon be beside Patrick Devine in the jail.
The alibi The alibi was to the effect that in the evening of Wednesday 18 November the appellant drove in a hired car to Prestwick and took a flight to Dublin and that he returned to Scotland on the Stranraer ferry on the afternoon of Saturday 21 November. Near the end of the Crown case, the advocate depute and counsel for the accused signed a joint minute. In the joint minute they agreed inter alia that a person by the name of Frank O'Donnell, 14 Maxwell Drive, Glasgow, checked into the Parnell West Hotel, Dublin on 18 November at 7.23 pm and checked out on the morning of 19 November; that a person by the name of Frank O'Donnell, 14 Maxwell Drive, Glasgow, checked into the Aston Hotel, Dublin on 19 November and checked out on 20 November; that on 19 November four telephone calls were made from the Aston Hotel to the Glasgow landline number subscribed to by the appellant; that between 18 November at 7.19 pm and 20 November at 9.27 am the mobile telephone number subscribed to by John Joseph O'Donnell, the father of the appellant, was used in Eire and in particular that calls were made on this mobile to the Glasgow landline number subscribed to by the appellant between 8 and 8.30 pm on 19 November and at 9.16 am on 20 November; and that on 20 November between 11.17 am and 12.49 pm the mobile telephone number subscribed to by John Joseph O'Donnell was used in Northern Ireland.  None of the accused gave evidence and no evidence was led in support of the appellant's alibi. There was therefore no direct evidence of the appellant's presence in Ireland at any relevant time.
The state of the Crown case at the end of the evidence At the conclusion of the Crown case, counsel for the appellant did not make a submission of no case to answer. In our view, there was sufficient evidence to entitle the jury to convict the appellant on the basis that he took part in the killing. Equally, in our view, there was sufficient evidence to entitle them to convict him on an art and part basis on the view that, if he did not participate in the killing, he was involved in planning it. Counsel for the appellant was therefore right, in our view, in not making a submission. It would have been open to the advocate depute to present both cases to the jury in the alternative. At that stage, so far as we can see, her options were still open. But with the Crown speech, the trial took a significant turn.
The speeches to the jury The advocate depute said that the Crown accepted that the appellant had been in Ireland on the night of the murder, but that the Crown case was that he had gone there in order to fix himself up with an alibi. The advocate depute therefore could seek a conviction against the appellant on an art and part basis only. It is surprising therefore that she went on to remind the jury, by reference to McKinnon's evidence of the Blackpool confession, of the possibility that the appellant had participated directly in the murder. This is what she said.
"And so, ladies and gentlemen, to Blackpool the next day, the 4th of December, where there is evidence that Frank O'Donnell in a drunken state and while eating a fish supper, lying on his side in a bed, admitted to William McKinnon being involved in the murder of Manus O'Donnell. 'He was murmuring, mumbling. He was cursing. He was not always easy to make out but he said "I done it. I done it with they two bams" or it might have been "they two other bams."' [Counsel for the appellant] referred him to his statement of the 23rd December, you'll remember, where the police had noted that what Mr O'Donnell had said was 'We done it. It was us wi' that other bam.' Whatever the exact words used by Francis O'Donnell, the clear meaning is surely that he, along with others, making three in all, and he refers to himself and the two other bams, or at least three when he said 'We done it. It was us wi' that other bam,' that surely is the clear meaning that he and others were involved in the murder of Manus O'Donnell ...
Mr McKinnon thought that in his drunken state in Blackpool he may also have been indicating that he was the one who shot Manus O'Donnell or that Manus O'Donnell had been shot, but he couldn't make it out where, and Mr McKinnon told you that it was not entirely clear what Francis O'Donnell was saying about his own actings, though Mr McKinnon did think that he meant that he had been there at the time of the murder. Francis O'Donnell did, however, communicate that Manus O'Donnell had been shot in the chest and had also in his prone position gesticulated with his hands and fingers at the neck and face area when saying that Manus O'Donnell was a messed up or a mushed up bastard, and there was also mention at that time by Francis O'Donnell of the dead man having been done in the head or perhaps gunned in the head, shot in the chest, shot in the head on one view, injured in the head and neck area - three references to what you know pathologically Manus O'Donnell's injuries were and what you have seen from the photographs - and after the Blackpool trip and before his arrest there is evidence of Stewart Richford ... from Stewart Richford again as to what Francis O'Donnell was saying then."
The advocate depute did not explain in detail what she alleged to have been the appellant's role; nor, in our view, did she make it clear that she was relying on McKinnon's evidence as evidence of art and part involvement only. Counsel for the appellant addressed the jury on the basis that the appellant's alibi was not in dispute. He relied on this to attack McKinnon's credibility by saying that since the appellant had been in Ireland at the material time, McKinnon's evidence of the Blackpool confession showed that he was not a credible witness.
The judge's charge If the advocate depute had sought a conviction against the appellant on alternative bases, it would have been incumbent on the trial judge to give the jury appropriate directions on both alternatives and to direct the jury as to the evidence that was relevant to each. But after the advocate depute had addressed the jury, the possibility of the appellant's being convicted as an actor in the murder was no longer open.  It occurs to us that the advocate depute's acceptance that the appellant was in Ireland on the night of the murder may have come as a surprise to the trial judge. That approach to the case meant that he had to charge the jury on the basis that the only case against the appellant was that he was guilty art and part. On the other hand, notwithstanding the advocate depute's approach, there remained McKinnon's evidence about the Blackpool confession. This evidence raised a difficulty because the advocate depute had specifically reminded the jury of it.  In the result, the trial judge made the judgment that if he went into the evidence against the appellant in detail, there was a risk that the jury might be persuaded, notwithstanding the Crown speech, that the appellant had been directly involved in the murder. His decision not to go into the facts was therefore made from considerations of fairness to the appellant. In the result, he gave the jury detailed directions on the law of concert. These directions were clear and accurate and they have not been challenged in this appeal. But he did not direct the jury in so many words that they could convict the appellant only on an art and part basis.  He said the following.
"The proper approach is to consider, against each accused, whether it has been proved that there was a common purpose and, whether she or he was party to it. If any of the accused has not been shown to have been involved in that sense in a common plan, then that person can be found guilty only of what he or she is proved personally to have done and, some may be found to have been involved in the common purpose and some not. Any two or more people who are found to have been involved in the common purpose are liable for all that has been proved to have been done by the group in pursuance of the plan or purpose but, if any conduct has gone beyond the scope of the plan then, only the person or persons, who carried that out can be found guilty of that matter.
Now, ladies and gentlemen, in this case, the Crown invite you to find it proved that there was a common purpose, by inference from a wide range of circumstantial details which the advocate depute has drawn together for you. And, the defence submissions have sought to persuade you that the inferences the Crown seeks are not possible but, once again, it is not part of my function at this trial to assist you in unravelling the material and reaching a conclusion; that is your function and, I don't intend to rehearse what has been said to you already or, indeed, to do much in the way of analysis of the evidence at all in this area."
What the trial judge did not do, for the reason that we have explained, was to direct the jury that the evidence of the Blackpool confession could be interpreted in two ways, as a confession of actual participation in the killing or as a confession only of involvement in the plot, and that only the latter could properly be taken into account. The trial judge had also to deal with the difficult question regarding the destruction of evidence after the murder, a question that applied to both the appellant and Devine. Counsel for Devine had made a particular point of this in his speech to the jury. He said that there was no such thing as accession after the fact and therefore that the fact of Devine's involvement in the burning of the Megane did not mean that he had been involved in the murder. On the other hand, the evidence of the appellant's involvement in the disposal of the weapons could, when taken with the other body of circumstantial evidence against him, be relevant to the question of his guilt on an art and part basis.  On the question of the destruction of evidence the trial judge said the following.
"Well, ladies and gentlemen, proof of the existence and scope of a common purpose can be found in a number of ways but, there are some approaches that would not be legitimate at all; some of them have been mentioned already. [Counsel for Devine], in particular, raised some of them; [counsel for the appellant] followed on. Participation in the destruction of evidence after the crime, what [counsel for Devine] called being an accessory after the fact, is not evidence in itself of participation in the crime, it's a separate crime and, indeed, the third charge in this case you will see actually alleges an attempt to defeat the ends of justice by the destruction of evidence and that does tend to make it easier for you to see that it is a separate criminal offence."
It is significant that this direction was expressed in general terms and therefore could be taken by the jury to apply to the appellant as well as to Devine.
The issues in this appeal There are two issues in this appeal; first, whether there was a misdirection in respect of either (a) the failure of the trial judge to direct the jury expressly, in connection with the Blackpool confession, that they could not convict on the basis that the appellant took part in the killing, or (b) the direction regarding the destruction of evidence, or both; and second, whether, if there was a misdirection in either respect, it was such as to cause a miscarriage of justice.
Misdirection In our opinion, the technically correct course for the trial judge was to give the jury a specific direction that it was not open to them, if they believed the evidence about the Blackpool confession, to interpret it in the first of the two senses to which we have referred. The advocate depute's acceptance that the appellant was in Ireland at the material time, when taken together with her unexplained reference to the Blackpool confession, required the trial judge to direct the jury that that confession was available to them only in support of the conclusion that the appellant was involved art and part. In our opinion, the failure of the trial judge to deal specifically with the point was a misdirection in the unusual circumstances of the case.  We are further of the opinion that the trial judge's direction on the question of destruction of evidence was inaccurate. While it is true that the destruction of real evidence does not by itself imply liability for the murder, the evidence of the appellant's disposal of the knives and his admission that he disposed of the pistol and the shotgun was plainly relevant to the circumstantial case against him on an art and part basis. The observation of the trial judge that the destruction of evidence was a separate crime may have been apposite in the case of Devine; but in the case of the appellant, the more appropriate comment would have been that, in the context of the whole evidence against the appellant, the disposal of the weapons was relevant evidence of his antecedent involvement in the murder. On that view, we consider that there was technically a misdirection on the point.
Miscarriage of justice We have carefully considered what, if any, were the prejudicial effects of these misdirections. The starting point for our consideration is that even on the restricted basis on which the advocate depute sought a conviction, there was ample evidence to entitle the jury to convict. Even if the jury had disregarded the evidence of the disposal of the weapons, as they were in effect directed to do, there remained, for example, the highly incriminating evidence of his possession of the two types of shotgun cartridge. In our opinion, this misdirection did not result in any prejudice to the appellant. On the contrary, it was favourable to his position.  The trial judge's failure expressly to direct the jury as to the significance of the Blackpool confession was not, in our view, of any materiality in the unusual circumstances of this case. By that point in the trial, the jury had heard the speeches for the Crown and for the appellant both of which were presented on the same basis, namely that the appellant was in Ireland at the material time and that the only case that the appellant had to meet was a case of involvement art and part. In consequence of those speeches, the question of his having taken part in the killing was no longer an issue.  Reading the charge in its context, as an appeal court ought to do, we consider that it would be unreasonable to imagine that the failure of the trial judge to give the direction contended for could have caused the jury to convict on the basis that the appellant took part in the killing (cp. Gemmill v HM Adv, 1980 JC 16).  In scrutinising the charge given in this complex and difficult trial, we should not overlook the compelling circumstantial case against the appellant. We conclude therefore that there was no miscarriage of justice.
Disposal The appellant has tabled an additional ground of appeal based upon the delay in the hearing of this appeal. Counsel for the appellant has formally abandoned that ground. We shall therefore refuse the appeal.