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Cite as: [2004] ScotHC 45

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Murray & Anor v. Her Majesty's Advocate [2004] ScotHC 45 (30 June 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Hamilton

Lady Cosgrove

Appeal Nos: XC327/02

XC402/02

OPINION OF THE COURT

delivered by LADY COSGROVE

APPEAL AGAINST CONVICTION

ROBERT WILSON MURRAY and PAUL JAMES RYAN

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Ms. J. Farquharson (Murray); McClure Collins:

W.G. Jackson, Q.C., McKenzie (Ryan); McClure Collins

Respondent: R. Anthony, Q.C., A.D.; Crown Agent

30 June 2004

[1] These appellants were convicted by a jury at Hamilton Sheriff Court of a charge of wilfully setting fire to the door of the Islamic Cultural Centre/Mosque at Carfin on 14 October 2001. They have now appealed against conviction. The sole ground of appeal advanced at the hearing before us was that the sheriff erred in law in rejecting the submission made at the close of the Crown case on behalf of each appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 that the evidence led by the prosecution was insufficient in law to justify their conviction of the offence of wilful fireraising.

The Crown case against the appellants
[2] Evidence was led at the trial to the effect that, in the early hours of 14 October 2001, a silver-coloured Ford KA motorcar, registration number S91 JGB, entered a petrol station in Motherwell. There were two people in the vehicle and the driver, who was a young male wearing denim trousers and a light-coloured baseball cap, removed petrol from a pump. The driver got back into the car and drove off without paying for the petrol taken. According to the automatically generated till receipt, the amount of petrol taken was 4.74 litres with a value of £3.50; and the time at which it was taken was 3.04 a.m.

[3] At 3.11 a.m. on the same date a call was received at the control room of the local fire brigade reporting a fire at the Mosque, which is the locus of the charge. The distance between the service station in Motherwell and the Mosque is about a mile and a half. A witness, Carol Higgins, who was at home in a house that looked on to the Mosque, made the call to the emergency services. She did so immediately after hearing an explosion and seeing flames coming from the building. She also had a brief view of a young man running away from the direction of the Mosque towards a Ford KA car that was parked at the end of the street. She described him as being tall and skinny and wearing denim trousers and a light-coloured baseball cap. He entered the passenger seat of the vehicle. The vehicle then drove off in the direction of Cleland.

[4] Fire officers attended at the locus and found flames and smoke around a doorway. The seat of the fire was a plastic item burning on the top step of a flight of steps leading to the doorway. That item was identified by the word 'Tetracan' visible on it as being the remains of a plastic petrol can. There was a smell of petrol within the building. According to the evidence of an experienced fire officer, the can of petrol could have been set alight by removing the cap and applying a light to the vapour.

[5] Police officers arrived at the locus at about 3.15 a.m. and took a description from Ms. Higgins of the vehicle seen by her. As they were doing so, a silver Ford KA passed the scene and the witness indicated to them that that was the vehicle she had seen earlier. The vehicle had two occupants at that time, and the person sitting in the passenger seat was wearing a light-coloured baseball cap.

[6] The police officers followed the vehicle, which had the registration number S91 JGB. When they stopped it in Wishaw the person sitting in the passenger seat was the appellant Robert Murray, and the driver was the appellant Paul Ryan. Police officers carried out a search of the vehicle and found a plastic nozzle or attachment for a petrol can within the boot.

[7] The appellants were detained at 3.25 a.m. They were taken to the police office where they were searched and items of their property were put into sealed property bags. Two cigarette lighters were subsequently taken from the property bag marked Robert Murray and one lighter from that marked Paul Ryan.

[8] The Ford KA vehicle in question belonged at the time to Lisa Murray. That witness was the girlfriend of Paul Ryan, and the sister of Robert Murray. Her evidence was that Paul Ryan was allowed to drive her car and that he had it from about 10 o'clock on the evening of 13 October. She was shown the plastic nozzle recovered from the boot of her vehicle and said that she had never seen it before. She also gave evidence to the effect that neither her boyfriend nor her brother was a smoker.

The submissions on behalf of the appellants
[9] On behalf of the appellant Ryan, Mr. Jackson, Q.C. submitted that there was no sufficient conjunction of testimony from which an inference of the appellant's guilt could be drawn. The witness Higgins was not able to identify anyone in the car and the only time the appellant was positively identified was when the police officers stopped the Ford KA vehicle and found him sitting in the driver's seat. Ms. Higgins described the man she saw running from the Mosque as being tall and skinny. She agreed, however, that the appellant Murray, who was in the passenger seat when the car was subsequently stopped, did not match that description. So far as the petrol stolen from the petrol station was concerned, there was no evidence that that was not put into the vehicle, the garage attendant not having been able to see what the driver did with it.

[10] Mr. Jackson further submitted that there was an absence of direct evidence as to the cigarette lighter having been taken from the property of the appellant. None of the police officers who gave evidence was able to speak to having removed it from him. The evidence led, taken as a whole, was not capable of supporting the inference of the appellant's involvement in the fireraising.

[11] Ms. Farquharson for the appellant Murray adopted Mr. Jackson's submissions. She submitted further that that appellant's position fell to be distinguished on the ground that there was no evidence connecting him in any way with the vehicle in question at any point prior to it being stopped by the police officers. The Crown case was that this appellant was the passenger in the vehicle but Ms. Higgins, who had known him for years, did not notice that he was the man she saw running from the area of the Mosque towards the passenger seat of the parked vehicle. However, we observe in this connection that it appears from the transcript of Ms. Higgins' evidence that her view of the man was brief and she did not see his face. It also appears that she did not recognise this appellant as the passenger in the car that she later pointed out to the police officers; and this appellant was in the passenger seat when that vehicle was subsequently stopped.

[12] Ms. Farquharson further submitted that not only was there no evidence led as to the actual seizing of the cigarette lighters from the appellant but there was also no evidence as to when the property bags from which they were eventually removed were sealed. The car was going towards Cleland when it was followed by the police officers, and that was the same direction in which the car seen by Ms. Higgins left the locus at the time of the fire.

The decision
[13] The Crown case against these appellants was based entirely on circumstantial evidence. The proper approach in such a case is for the evidence to be considered as a whole. What matters is the concurrence of testimony. It is not necessary that each piece of evidence, of whatever kind, should be incriminating in itself. Whether a number of pieces of evidence are incriminating or not is a matter which can only be judged in the whole circumstances taking all the evidence together (Fox v. H.M. Advocate 1998 J.C. 94; Megrahi v. H.M. Advocate 2002 JC 99). The sheriff, in considering whether the evidence as a whole was capable in law of supporting the inference of the guilt of each appellant, was entitled, in our view, to have regard to the following. The silver Ford KA belonging to Lisa Murray, the sister of Robert Murray and the girlfriend of Paul Ryan, was in the custody of Paul Ryan from 10 o'clock on the evening of 13 October 2001. That vehicle had two occupants when it was at the service station at Motherwell at 3.04 a.m. on 14 October and when it was seen passing the locus before it was stopped by police officers at 3.25 a.m. A vehicle of the same make, model and colour was seen driving away from the locus immediately after the explosion; and that vehicle had two male occupants. The seat of the fire was a plastic petrol can. A plastic petrol can nozzle recovered from the boot of the vehicle did not belong to the owner of the vehicle. The amount of fuel stolen from the service station by the occupants of the silver Ford KA belonging to Ms. Murray was 4.74 litres, that is to say an amount consistent with it having been taken to fill a petrol can, there being evidence before the trial court that such plastic petrol cans hold 5 litres. The small amount of fuel taken from the pump was strongly suggestive of its use for a purpose other than as fuel for the vehicle. The cogency of the link between the vehicle seen leaving the locus at the time of the fire and the one subsequently stopped by the police was demonstrated by the evidence from the police officers as to Ms. Higgins' spontaneous reaction on seeing that car as it drove past the locus. They spoke to her saying "That's it. That's him". Her own evidence on this was "I thought to myself automatically that's them". Further, the proximity in time between the theft of the petrol (3.04 a.m.) and the setting of the fire by the use of petrol as an accelerant (the first call to the fire brigade was made at 3.11 a.m.) was capable of supporting the inference of the involvement in the fireraising of the occupants of the car at the service station. So far as the evidence about the lighters is concerned, we note that the evidence to the effect that these were removed from their prisoner property bags was led without any objection being taken on behalf of either appellant. That evidence was accordingly part of the evidence to which the sheriff was entitled to have regard in his assessment of the sufficiency of the case against the appellants. It was, in our view, a significant incriminatory adminicle in the particular circumstances of this case.

[14] We consider that, taking these circumstances as a whole, the sheriff was entitled to conclude that there was sufficient concurrence of testimony to support the inference of guilt and to entitle him to repel the no case to answer submission in respect of each appellant. These appeals are accordingly refused.