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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Penrose
Lady Cosgrove
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[2005HCJAC104]
Appeal No: XC305/03
OPINION OF THE COURT
delivered by THE LORD
JUSTICE CLERK
in
THE REFERRAL BY THE
SCOTTISH CRIMINAL CASES REVIEW COMMISSION
in the case
WILLIAM GRAY
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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For the Appellant: Jackson,
QC, Shead;
For the Crown: Mitchell,
AD; Crown Agent
8 February 2006
Introduction
[1] On 2 October 1992, at
Glasgow High Court, the appellant was convicted of a charge of murder. On 28 January 1994 this court refused the appellant's
appeal against conviction. In February
2003 the Scottish Criminal Cases Review Commission referred the appellant's
case to this court on three matters relating to certain irregularities that
were alleged to have occurred at the
trial. When the referral was
lodged, the appellant took the opportunity to lodge a Note of Appeal based on
new evidence.
[2] On
23 December 2004 the court,
having considered the matters referred to it by the Commission, refused to
disturb the conviction (cf. Gray and
O'Rourke v HM Adv., 2005 SCCR
106). We have now heard the appeal so
far as it is based on the Note of Appeal.
The trial
[3] The
appellant was tried with five others on an indictment containing 31
charges. Among the co-accused were James
O'Rourke and Stephen Donohoe. O'Rourke
was found guilty of the murder charge, Donohoe was convicted of culpable
homicide on the same charge. Neither
O'Rourke nor Donohoe gave evidence.
[4] The
case arose from a vendetta between two factions in Craigneuk. One was led by Neil Cairney (the
deceased). The other, according to the
Crown case, was led by the appellant.
They had been involved in numerous fights and disturbances. In one incident, on 16 May 1992, the appellant had presented a
shotgun at the deceased and threatened to shoot him.
[5] On
24 May 1992 the
deceased, accompanied by his friend Brian Tarditti and two women, went to the
appellant's house armed with a baseball bat and a chain. The deceased broke the windows of two cars
parked in the driveway. The appellant
and four others came out of the house, along with the appellant's cohabitant
who removed the baseball bat from the deceased.
The deceased then stood outside the garden gate swinging the chain at
the five men, who were by then standing in the garden. The deceased retreated from the gate and the
five men chased after him. The deceased
landed on the ground and was battered to death with blows to the head and
abdomen. Among the weapons used in the
attack were pieces of paving stone, a plank of wood and the trunk of a small
tree.
[6] The
appellant gave evidence that when the deceased swung the chain it struck
Stephen Donohoe and that Donohoe was then taken to a car by his brother
Terence, one of the co-accused, and removed from the scene.
The Note of Appeal and supporting documents
[7] The Note of Appeal is
as follows:
"Evidence is now available which was not heard at
the trial which had it been so heard would have had a material bearing on the
jury's deliberations. Neither James
O'Rourke nor Stephen Donohoe gave evidence at the trial. Both former co-accused have since sworn
affidavits to the effect that the appellant was not in involved (sic) in the attack which led to the
deceased's death".
It is not the case that O'Rourke
and Donohoe have sworn affidavits. All
that the appellant has produced are two statements that were appended to the
SCCRC Referral (Appendix, Nos. 21 and 22).
The first is a brief statement, one and a half pages long, purportedly
by James O'Rourke. The following is the
relevant part of it:
"We all then made our way to Big Wull's house. Just after we arrived back at wull's Tarditti
and Cairney and a crowd of other people came round looking for trouble.
In the fight that followed I picked up a paving slab
which was lying against Big Wull's house.
I smashed it in four or five pieces on the ground and picked up one of
the pieces and threw it at Cairney. The
slab struck him on the head and I saw him going down. Prior to me hitting him with this slab,
Cairney was trying to assault me with a Big chain.
As he went down Big Wull shouted to me 'that's
enough'. I ran back towards Wull's house. As I did so the two Donahoes and Armstrong
set about Cairney who was lying on the ground.
They were joined by the fifth man I have mentioned. I saw Stephen Donahoe ripping a tree out of
Big Wull's garden and rushing back at Cairney with it.
At the trial I was desperate to give evidence to
clear Big Wull but I was instructed to say nothing by my solicitor."
This statement is undated. It is not signed by O'Rourke or otherwise
authenticated, and there is no note of the person who took it.
[8] The
second document purports to be a transcript of a statement given by Stephen
Donohoe on 14 March
1994. The following is the
relevant part of it.
"Wull Gray was in the living room watching TV he had
no shoes or socks on. His wife Marie was
also in the house. We were not long in
the house when we heard a noise outside.
It was Tarditti, Neil Cairney, Kevin McGrath, Allan Watt and a few other
people. They were smashing up my
brothers car which was parked outside.
Marie ran out and started to wrestle with Neil Cairney who was armed
with a pick shaft and a chain. I ran out
towards Cairney and he started to back out the gate of Grays house on to the
road. At this point Cairney caught me
with the chain. I fell to the
ground. I got back up fuming mad and went
for Cairney. At this point I was joined
by my brother Terry and another person.
I do not know who the other person was but it was definitely not William
Gray. By this time I had lost my temper
completely. I ran back in to Grays
garden and uprooted a small tree. I ran
back towards Cairney who was on the ground fighting with several other
people. I beat him continually with the
tree and inflicted severe injury to him.
Looking back I SUPPOSE I WENT TOO FAR AND KILLED HIM.
There were a few other men attacking Cairney but,
WILLIAM GRAY WAS NOT ONE OF THEM. I
realised that I may have gone too far and decided to run for it before the
police came. Before I ran away I shouted
to big Wull Gray if he was coming. He
was still at his front door with his shoes and socks off. He was very calm he told me that he was not
going to run away as he had not been involved."
This statement too is unsigned and
unauthenticated, and there is no note of the person who took it.
[9] The
Commission considered the import of these documents (Referral,
paras 43-47) and came to the following conclusion:
"44. Stephen
Donohoe and Mr O'Rourke were co-accused along with the applicant on charge 30
on the indictment, the murder of Neil Cairney.
Both men have provided statements, forwarded to the Commission, which
state that the applicant was not involved in the incident which led to the
death of Mr Cairney. Copies of these
statements are numbers 21 and 22 in the appendix annexed hereto.
45. The
Commission is not of the view that the explanations from both men as to why
they did not provide the evidence contained in their respective statements at
trial are reasonable in all the circumstances of this case.
46. The
Commission has also considered the content of these statements. The Commission is of the view that given the
evidence from other persons involved in the assault upon Mr Cairney which
indicate the applicant's active involvement in the assault, and given that
evidence from witnesses who were independent of the assault also confirmed that
the applicant was actively involved in the assault, the statements from Stephen
Donohoe and Mr O'Rourke are not of such a nature and quality that they would
have had a significant bearing on the jury's consideration of the material
issue of the applicant's involvement in the death of Mr Cairney.
47. For
the above mentioned reasons, the Commission is not of the view that the
statements provided by Stephen Donohoe and Mr O'Rourke lead to a conclusion
that a miscarriage of justice may have occurred in this case. In reaching this decision the Commission has
had regard to the case of Campbell and
Steele v HMA 1998 SCCR 214; Kidd v HMA 2000 SCCR 513; McLay v HMA 2000 SCCR 579 and Lyon v HMA 2002 GWD 34-1138."
Submissions
[10] Counsel for the appellant submitted that the proposed new
evidence was evidence that qualified under section 106, which is familiar and
which we need not quote. It was
significant evidence. The court should
appoint a hearing at which O'Rourke and Donohoe could give evidence. The fact that the evidence came from two
former co-accused was not a bar to its being considered (Mills v HM Adv, 1999 SCCR
202). Since the co-accused did not give
evidence and were not compellable by the appellant at the trial, there was a
reasonable explanation why their evidence was not heard.
[11] The advocate depute submitted that the proposed evidence was
not in a satisfactory form. It did not
consist of affidavits. Both statements
were unsigned (Binnie v HM Adv, 2002 SCCR 738). It was not certain whether O'Rourke or
Donohoe was prepared to give evidence on oath (Neeson v HM Adv, 2005
HCJAC 64, at para [12]). If the proposed
witnesses had wished to exonerate the appellant at the trial, they had the
opportunity to do so. Instead, they
preferred not to give evidence (Brodie v
HM Adv, 1993 SCCR 371, at p
380). This was not fresh evidence. It was simply a change of position. The concession made by the Crown in Mills v HM Adv (supra) in relation to the proposed evidence of the former
co-accused (R) was formally withheld in the present appeal. The evidence against the appellant was
powerful. A neighbour, Miss Hutton, saw
all five men attacking the deceased in the middle of the road (Charge, pp
37-38). Brian Tarditti said that the
appellant was one of the five men who left the garden and that he lifted a
brick (Charge, p 43). Mary McGrath, one of the women who accompanied the
deceased to the locus, said that all five of the men who had been in the garden
charged out of the gate and attacked the deceased. The appellant had backed off from the attack
and said to O'Rourke "That's enough, Porky."
There had been evidence of hostile activity from the five men even when
they were within the garden. A brick had
been thrown from there. There was also the
appellant's earlier threat to shoot the deceased. Much of what was said in the statements of
O'Rourke and Donohoe was contradicted by the evidence at the trial. Donohoe's statement that Gray merely stood at
the front door with his shoes and socks off was contradicted by the appellant's
own evidence.
Decision
[12] In our opinion, there is no merit in this appeal. It fails in
limine because the appellant has failed to tender evidence in any proper
form. The purported statements are
unauthenticated. We would not be
justified in concluding from them that either of the purported witnesses would
be prepared to speak to them on oath.
The Note of Appeal was lodged in April 2003. For over two years the appellant's advisers
have had the means at hand to lodge the alleged new evidence in the form of
formal affidavits. Counsel for the
appellant appeared to suggest that if we were not satisfied with the present
form of the evidence, we could continue the appeal to enable affidavits to be
produced. We are not prepared to grant
such indulgence to the appellant. This
appeal has been in dependence long enough.
It was for the appellant's advisers to present the evidence in the form
that the court considers to be appropriate (Binnie
v HM Adv, supra). For this reason
alone the appeal fails.
[13] In addition, we do not consider that the proposed evidence,
taken at its best, is cogent evidence that could justify us in applying the
section. We agree entirely with the
Commission's conclusion that the proposed new evidence did not constitute a fit
ground of referral. The accounts given
by the proposed witnesses are completely lacking in detail in relation to the
actions of appellant at the locus. The
statement of O'Rourke does not entirely exclude the appellant's own involvement
in the attack. The circumstantial detail
given by Donohoe that the appellant did not have his shoes and socks on at the
locus is contradicted by the appellant's own evidence at the trial (Transcript,
vol 4, p 103). For these reasons too we consider
that the appeal fails.
[14] On the view that we have reached, it is unnecessary for us to
consider the wider question whether new evidence from a former co-accused who
did not give evidence at the trial is evidence falling within the purview of the
section. That issue was raised in Mills v HM Adv, (supra) in
consequence of a concession then made by the Crown. That concession has been withheld in this
appeal. The issue has not been discussed
in detail. It can be considered at
greater length if and when it is necessary to decide it.
[15] We should add that senior counsel for the appellant informed us
that within the last two days the appellant had received information about
possible additional evidence emanating from a woman who lived across the road
from the appellant. According to senior
counsel, this woman had given a statement to the police soon after the incident
to the effect that the appellant did not leave the garden and took no part in
the attack. Her statement was not
intimated by the Crown to the defence.
This woman was not called as a witness at the trial. Since senior counsel did not tender any
documentation of any kind in relation to this new evidence and since he did not
move us to continue the appeal so that it might be considered, this is not a
matter that we can properly take into account.
