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Harper v. Her Majesty's Advocate [2005] ScotHC HCJAC_23 (15 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Macfadyen

[2005HCJAC23]

Appeal No: XC307/03

OPINION OF THE COURT

delivered by LORD OSBORNE

in referral by

THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the case of

JASON HARPER

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Murray, Q.C., Hood; Ketchen & Stevens, W.S. (for Guarino & Thompson, East Kilbride)

Respondent: Clancy Q.C., A.D.; Crown Agent

15 March 2005

The background circumstances
[1] In this Referral by the Scottish Criminal Cases Review Commission the applicant to the Commission is Jason Harper, who, on 27 January 1993, was convicted on the following charge:

"On 25 January 1992 at the house at 29 Chalmers Crescent, Murray, East Kilbride you did assault John Harris, residing there, struggle with him, push him to the floor, punch and kick him repeatedly on the head and body, repeatedly stamp on his head and body, drag him about the floor, cause him to strike a radiator, a door surround, a door and a table or similar objects and surfaces, rob him of a video recorder, a camera bag and a clock and did murder him".

On the same date the applicant was sentenced to life imprisonment. On 24 June 2002, his punishment part was set at 16 years, in terms of the Convention Rights (Compliance) (Scotland) Act 2001.

[2] By a Note of Appeal, lodged on 3 February 1993, the applicant appealed against his conviction on the grounds set forth therein. In summary, these were, first, that the trial judge had erred in refusing a request for a direction to the effect that there was insufficient evidence to entitle the jury to convict the applicant of murder; and, second, that there was insufficient evidence to entitle the jury to convict him. Following a hearing, this court refused the applicant's appeal on 1 March 1994 for the reasons given in the Opinion of the Court delivered on that date.

[3] The factual background to the applicant's conviction, as described in the Report by the trial judge to this court, was this. The deceased, who was 66 years of age at the time of his death, had lived alone in a small first-floor flat at 29 Chalmers Crescent, Murray, East Kilbride, for over 10 years. He had suffered a stroke some years before his death, was frail and walked with a shuffling gait, using a stick. He was visited by his sister and those who provided him with support services, in particular, a nursing auxiliary and a home help. On the morning of Monday 27 January 1992, the nursing auxiliary, who had come to give the deceased his bath, got no reply when she called at the flat at 10.15 a.m. When she returned at 12.15 p.m. and entered the flat, she found the deceased lying dead in his living room. He was lying on his back beside his bed and was naked, apart from wearing socks and a bandage around his right leg beneath the knee. Examination of the deceased's body where it was found showed that blood was issuing from his nose. There were smears of blood on his hands and on the front of his trunk. A post-mortem examination of his body was carried out, commencing at 6.30 p.m. on the same day. It was then found that he had suffered multiple comminuted fractures of the upper facial skeleton, which had resulted in its complete detachment from the base of the skull. There were fractures of the maxilla, the zygomatic arch and the orbit on the left and right sides of the skull. There were also bruises on the right and left temples. The pathologists found that death had been caused by severe blunt force injury to the face resulting in multiple facial fractures and the accumulation of a large quantity of blood in the pharynx. They had stated in evidence that the deceased had obviously received multiple blows, which could have been caused by kicking, stamping or striking with a large solid object. One of the examining pathologists expressed the opinion that there was no way of distinguishing the order in which or the time at which the various injuries had been inflicted, but he expressed the opinion that they had probably occurred at the same time. It could have taken several minutes for the deceased's airway to become blocked, after which death would occur within a further three to five minutes. In the light of the stage which rigor mortis had reached, the ambient temperature in the flat and the musculature of the deceased, he estimated that death had occurred approximately between 24 and 72 hours before the post mortem examination. He had had a slight preference for the Saturday rather than the Friday, as the day on which the deceased had died. Nothing had been found to contradict the view that the deceased had been still alive on the Saturday at 5 p.m. During the examination a number of bruises and abrasions on the upper and lower limbs were found. The other examining pathologist had stated that the deceased would not necessarily have been rendered unconscious immediately after having sustained the most serious injuries. The fact that the deceased had lain on his back would have allowed blood to collect in the pharynx. Death would have occurred within a few minutes of the infliction of the facial injuries. At the time of the post mortem examination, rigor mortis had been beginning to pass off. She had considered that the deceased had died between 36 and 72 hours prior to the examination.

[4] In the course of the trial, evidence was led as to when the deceased had been last seen alive. Archibald Hannah gave evidence that, on the Saturday at about 11 a.m., he had seen the deceased coming out of the main door which gave access to the close of the building in which his flat was situated. Altaf Hussain, who worked in a newsagents shop at 61 Chalmers Crescent and who knew the deceased as a regular customer, stated that he had seen him in the shop on the Saturday afternoon, when he bought some envelopes. He was 90% sure that it was on the Saturday rather than the Friday. Bernadette McCabe, who worked in a hairdresser's shop at 59 Chalmers Crescent, said that she had seen the deceased on the Saturday at about 3.45 p.m. when her father had been going to pick her up. The deceased had stopped outside her shop in order to catch his breath. Mrs. Helen Docherty, who lived at 31 Chalmers Crescent in a flat next to that of the deceased, gave evidence that she had last seen the deceased on the Saturday "at the back of 3 p.m.". They had talked in the close about loud music which had been coming from further up the stairs. They had also talked about door security. The deceased had mentioned to her that he was going to get a chain for his door. She had told him that her father could fit it for him. This conversation had taken place outside the door of the deceased's flat. She also invited him into her flat in order to see dampness there. He had looked as he usually did. He had not mentioned that anything had happened to his property. She had gone to her flat after this conversation about 4.50 p.m. At that stage the deceased had gone into his flat and his door had been locked.

[6] Following the discovery of the deceased's body, it was found that certain articles were missing from his flat: these were the video cassette recorder already mentioned, a clock and a camera bag. The video cassette recorder, without its fascia, was recovered by police officers from the house of a Mr. and Mrs. William Scott, at 71 Kelvin Drive, East Kilbride on 1 February 1992; the remaining articles were recovered from a wooded area in Hamilton on the following day. On scientific examination of those articles, a fingerprint impression corresponding to that of the applicant was found on the underside of the video cassette recorder near its front; there was a small area of blood staining on the camera bag on one side near a strap attachment point. Further examination of part of this blood stain showed that it was human blood containing the group EAP B, a group which is found in 35.6% of the population. This could have come from the deceased but could not have come from the applicant.

[7] Gary Harper, a brother of the applicant, gave evidence at the trial that, following the applicant's arrest, he took the clock and the camera bag from the house of a Mr. and Mrs. David McSherry at 14 Livingstone Drive, East Kilbride on 31 January 1992. This was a house in which his brother George then stayed. He had taken these items to Hamilton, where his girlfriend had disposed of them in the wooded area in which they were subsequently found. He stated that he had done so because he had been panicking after the applicant had been charged. Mr. and Mrs. McSherry had given evidence that, in the early evening of Friday 24 January 1992, they had gone together to the house of the Scotts, carrying drink with them. At about 6.45 p.m. they had seen the applicant "dancing round a pole" outside one of the shops situated in Chalmers Crescent. He was apparently drunk and was carrying a white carrier bag. Mrs. McSherry had gone over to speak to him. According to her evidence, he told her that he had "left the house" and she had given him £4. The McSherrys had taken the carrier bag from the applicant, apparently because he was drunk. They had taken it with them to the Scotts' house. The carrier bag contained the video cassette recorder, the clock and the camera bag. Mr. Scott had said that he could perhaps fix the video cassette recorder, accordingly they left it there. They took home the clock and the camera bag and put them in the room used by George Harper. These items remained there until they were taken away by his brother, Gary. Mr. McSherry had said that he and his wife had stayed with the Scotts on the Friday and Saturday nights. However, he had himself visited his own home to let out the dogs. His wife had also stayed with the Scotts on the Sunday night after he had gone home for good. He had claimed that he was not wrong in saying that he had seen the applicant on the Friday night, as he recalled watching a television programme entitled "Take the High Road" before he had set off with his wife. It was definitely not Saturday night. Mrs. McSherry had said that both she and her husband had stayed with the Scotts until the Monday. She did not think that her husband had gone home to feed the dog on the Friday, but he did so on the Saturday and had returned in about 45 minutes. She had said that, as her husband drew his benefit on a Tuesday, they would have gone home on the Monday. They were "skint" by then. Although she was "not sure on dates" she had said that it was definitely the Friday night when she had seen the applicant. She remembered her husband having watched television before they left their house. She agreed that she and her husband had been drinking fairly constantly during the weekend.

[8] William Scott had testified that the McSherrys had arrived on the Friday night with a carry-out and a bag containing the video cassette recorder. It needed to be fixed and had been left with him. He had explained that, every two to three months, the McSherrys would come down to have a drink with the Scotts and stay overnight. They had stayed the whole of this weekend, although both of them had gone home several times during its course. He thought that Mr. McSherry had come for his wife on the Monday. He had said that it was on the Friday evening that they had come, as they had been watching television between 6.30 and 7 p.m. He also related these events to a Friday because of arrangements made for taking out his grandchildren. The McSherrys used their spare bedroom on the Friday night but on the Saturday night they had fallen asleep in the living room. The witness had agreed that he had drunk fairly constantly over the weekend. His wife, Mrs. Katherine Scott, had said that she was very sure it was the Friday night when the McSherrys had arrived, since she had been looking out for her grand-daughters that evening.

[9] The trial judge recorded certain other tracts of evidence given at the trial which he considered were material. Patrick Harkins had given evidence that he had met the applicant and his brother George in the town centre of East Kilbride on the Thursday following the discovery of the body of the deceased. The applicant had asked him if he had heard about someone getting killed in one of the flats. The witness was unsure if the applicant had said anything about his whereabouts the previous weekend. The applicant had asked him if he had heard that "an old man got killed and was found dead up Chalmers way". The witness had said that he was not bothered and replied "Is that right?". The witness had narrated that the applicant had then said that he was "pished that night and could have done it". The witness had said that he had not taken this remark seriously. George Harper had then hit the applicant and said to him "Don't be so stupid". The witness had said that he did not know which particular night of the week the applicant had been talking about.

[10] Elaine Stevenson, who lived on the other side of Chalmers Crescent from the deceased, had said that she had seen the applicant coming out of the main door of the deceased's close about midday on Saturday, 25 January 1992. She knew him by sight. He was incoherent and apparently drunk. He had had trouble opening the door and had kicked it. He has asked her to help him open it. When he came out he was "stotting about".

[11] The trial judge summarised the defence evidence. Mr. and Mrs. George Harper senior, the parents of the applicant, had given evidence in support of the applicant's special defence of alibi. According to them, he had been away from home from midday to midnight on the Friday and had been drinking that day. On the following day, he had got up by about midday. Thereafter he had been absent from the house only three times, first about 12.30 p.m. to go to a shop when he was absent for five to six minutes; secondly, about 7.30 - 8 p.m., when he was out for seven to eight minutes in order to buy beer for his father; and thirdly, when he was out with some friends for no more than 15 minutes, after which he was back by 8.30 to 8.45 p.m. It would have taken some 20 minutes to reach Chalmers Crescent from the Harpers' house at 31 Carnegie Hill, East Kilbride. The trial judge narrates that the applicant himself did not give evidence at his own trial.

[12] It should be recorded that, at the conclusion of the evidence in the trial, a motion was made on behalf of the applicant for a direction that there was insufficient evidence to entitle the jury to convict him of murder. That motion was opposed. It was indicated in support of the opposition to the motion that the Crown's position was that the deceased died after 5 p.m. on the Saturday. The video cassette recorder, the clock and the camera bag had been stolen by the applicant from the flat. The Crown was to argue that the theft and the serious assault on the deceased had been carried out in the course of one incident; hence the applicant was responsible for both. Reliance had been placed on the evidence given in regard to the state of the blue polythene bag and what it contained; also on the blood stain on the camera bag. It was pointed out that the fingerprints of the applicant had been found on a number of places in the flat, including inside the kitchen sink. Theft was advanced as a possible motive for assault. The Crown also relied on the remark which the applicant had made about being "pished that night". The Crown's position was that the McSherrys and the Scotts had been mistaken as to the day of the week on which the carrier bag containing the stolen articles had been taken by the McSherrys to the Scotts' house. The Crown intended to argue that, if those articles had been taken from the flat and one of them broken there on the Friday, the deceased would have been likely to have said something about that event when talking to Mrs. Docherty on the Saturday afternoon. The trial judge had taken the view that there had been sufficient evidence in law to entitle the jury, if so advised, to find the applicant guilty on the basis advanced by the Crown.

The referral by the Commission
[13] In its Statement of Reasons under section 194D(4) of the Criminal Procedure (Scotland) Act 1995, the Commission indicates that the impetus for its investigations has been the applicant's application and subsequent submissions, his position being that he maintains his innocence of the crimes of which he was convicted. In paragraph 53 of the Statement of Reasons the Commission outlines the applicant's contentions to it. However, prominent among the factors which, it appears, have caused the Commission to make this Referral are the circumstances relating to one Joyce McMillan. She gave a statement to the police on 29 January 1992, which is one of the documents in the Commission's Schedule of Documents. She herself had lived in Chalmers Crescent for a time and had known the deceased for about seven years, as he had worked for the same employer as Joyce McMillan's father. In her statement she had given a picture of the deceased's life at Chalmers Crescent in the period prior to his death. She described his apprehensions regarding his own safety and the integrity of his flat, apparently based upon the behaviour of youths in the area. She had mentioned an incident which occurred about three and a half weeks prior to the death of the deceased in his flat and involved violence towards both her and the deceased. She had gone on to describe a considerable number of individuals who, from time to time, visited the house of the deceased, with the purpose of consuming their carry-outs there, or obtaining a loan of money from the deceased. It should be explained that Joyce McMillan was an alcoholic who died on 6 May 1999 aged 39. Attempts had been made by both the procurator fiscal and solicitors acting for the applicant to precognosce her prior to the trial. However, for reasons related to her abuse of alcohol, no precognitions had been taken from her by the former. The latter had obtained a precognition. It should be recorded that Joyce McMillan's name had not appeared on the list of witnesses in the indictment, nor had she been called as a witness by either the Crown or the defence. It is evident from paragraphs 61 to 76 of the Commission's Statement of Reasons that it considers her evidence to be of significance. It considers that it tends to undermine the Crown's position that the Scotts and the McSherrys were mistaken when they had suggested that the applicant had been in possession of the stolen property on the Friday night. Furthermore, in paragraph 77 of the Statement of Reasons, the Commission has noted that only two of the individuals named by Joyce McMillan as having been present, on occasion, in the deceased's flat were called as witnesses at the applicant's trial. Having appreciated that position, the Commission has gone on to investigate what those who had not given evidence as witnesses might have been able to say. In addition, the contents of Joyce McMillan's statement have caused the Commission to review the evidence of a number of witnesses who had given evidence at the trial concerning the movements of the deceased and the applicant on the Friday and Saturday. Among such witnesses were the McSherrys and the Scotts. The Commission has taken steps to acquaint itself with the evidence given by these witnesses at the trial by the only means now available in the form of summaries of their evidence prepared by the trial judge.

[14] In paragraph 108 of its Statement of Reasons, the Commission sets out its conclusion in relation to this area of the case, in this way:

"As a consequence of the foregoing information, the Commission accepts that the Crown position as regards the movements of the deceased on Saturday, 25 January 1992 was justified, the last apparent sighting of the deceased being at approximately 4.15 p.m. that evening. However, the Commission does have some concerns regarding the Crown's suggestion that the evidence of the Scotts and the McSherrys was inaccurate as regards the day upon which Mr. and Mrs. McSherry arrived at the Scotts' house in possession of the video recorder, later identified as having come from the deceased's flat, which they had received from the applicant. It is noted that all four witnesses consistently stated that the day in question was the Friday. This evidence is of course very relevant to the Crown's suggestion that the applicant had carried out the robbery of the video recorder on the Saturday night, at the same time as the murder of the deceased, as opposed to the Friday night. The Commission notes that any suggestion that Mr. and Mrs. McSherry were in possession of the video recorder on the night of Friday 24 January 1992, having received it from the applicant that evening, if considered in association with the overwhelming evidence pointing to the deceased being alive and well the following day, undermines the Crown position that the murder and the robbery took place at the same time."

[15] It is stated at paragraph 109 of the Commission's Statement of Reasons that it considered it important to investigate further aspects of Joyce McMillan's evidence, in particular the allegation that the deceased had been assaulted in his flat several weeks prior to his death. This was considered important as the Crown had suggested that the blood stain found upon the video recorder stolen from the deceased's flat, which could have come from the deceased but not from the applicant, supported its proposition that the assault on the deceased which led to his death, must have occurred prior to the video recorder being removed from the deceased's flat. However, the Commission found no confirmation of that particular allegation.

[16] The Commission has also made enquiries to establish why Joyce McMillan was not called as a witness at the trial. As already noted, no precognition was secured from her by the procurator fiscal. However, the applicant's solicitor confirmed that a statement had been secured from her prior to the trial on behalf of the applicant. That statement is in significantly different terms from the statement given by her to the police. It was recorded by the precognoscer that Joyce McMillan was drunk during the interview. Discussions had taken place between the applicant's solicitors and representatives of the Crown prior to the trial concerning the position of Joyce McMillan, which included the communication from the procurator fiscal to the applicant's solicitor that Crown counsel had been of the view that Joyce McMillan was an unreliable witness and had not intended to pursue further lines of enquiry concerning her. It should be recorded that on 30 June 1992, an adjournment of the trial to allow the defence the opportunity of conducting investigations in connection with Joyce McMillan's evidence and fingerprint evidence was granted. However, no conclusive result emerged from those investigations. The applicant was eventually re-indicted for trial on 18 January 1993. Joyce McMillan was not cited as a witness for the Crown; neither Joyce McMillan nor the evidence which she might have given was a material issue in connection with defence preparations for the rearranged trial. The Commission has been informed by the solicitor who acted for the applicant that he had believed that, in view of her apparent unreliability and the fact that she was not being called as a witness for the Crown, a decision had been taken that further lines of enquiry were not required in respect of her. That position was generally confirmed by senior counsel who acted for the applicant at the trial, so far as his imperfect recollection of the matter enabled him to comment.

[17] In paragraph 125 of the Statement of Reasons, the Commission explains its reasons for making the present Referral. It draws attention to the provisions of section 194B and 194C of the 1995 Act and continues:

"The Commission's view is that there may have been a miscarriage of justice in respect of the applicant's conviction and that it is in the interests of justice that his conviction is considered again by the High Court. However the basis for the Commission's Referral is not perhaps based on one of the specific grounds which the court has previous recognised as being capable of leading to the conclusion that there has been a miscarriage of justice, such as 'fresh evidence', 'defective representation' or 'unreasonable jury verdict'. Rather the Commission's referral in this case is based upon its view, in the light of the information available, some of which was not heard at the trial, that there is a reasonable doubt as to the applicant's guilt in respect of the murder of John Harris."

In amplification of that view, the Commission has analysed the Crown's position as regards the sufficiency of evidence against the applicant. At paragraph 140 of its Statement of Reasons, the Commission states that it

"believes that had the evidence of Ms. McMillan been explored further (sic) at trial, the jury might not have been satisfied beyond reasonable doubt that the applicant stole the property on the Saturday night and in the course of this crime, assaulted and murdered the deceased."

As regards the circumstances surrounding why Joyce McMillan was not called as a witness, the Commission states, in paragraph 141, that it

"is willing to accept that the opinion of both Crown and defence counsel, which led to Ms. McMillan's evidence being led by neither the Crown nor the defence, was not unreasonable in the circumstances of the case at the time of trial, in particular in view of Ms. McMillan's alcohol problem."

Nevertheless, the Commission state in paragraph 144 of the Statement of Reasons:

"Consequently, while the Commission recognises that aspects of Ms. McMillan's evidence are inconsistent with other evidence, which may indicate a lack of credibility, there are clearly aspects of her evidence which are capable of being believed."

[18] A further subject for the Commission's enquiries was the content of a tape recorded police interview with the applicant, conducted on 31 January 1992, in which the applicant had made certain admissions, including that he had been in the deceased's flat and stolen his video recorder on the Friday night. While in the flat he had pushed the deceased to the ground and kicked him once. At the end of that interview, the applicant had been cautioned and charged with the deceased's murder. The transcript and original tapes of that interview had been lodged as productions at the trial, but neither the Crown nor the defence had referred to them in evidence. Advice available to the defence concerning the level of intellectual functioning of the applicant at the time indicated that he was vulnerable to making false confessions. In paragraph 147 of the Commission's Statement of Reasons, it states that it is

"also of the view that the apparent confession which the applicant made during the taped police interview, may have some significance in the case. ... The Commission notes that it was on the basis of this confession that the applicant was charged with the deceased's murder."

In paragraph 148 of the Statement of Reasons the Commission observes:

"These admissions were quite obviously initially considered by the police to be of some significance in the case against the applicant. However, the relevance of the admissions diminished significantly when it became apparent that the deceased was alive and well until at least the Saturday afternoon. The confession evidence was clearly at odds with the Crown's eventual view of the evidence at trial and may even have undermined it. Consequently, when the case came to trial, while the tape recording of the police interview and a transcript of it were listed as productions, the Crown did not refer to this evidence in the course of the proceedings. The Commission is uneasy about the fact that while the applicant was charged on the basis of this confession the police and the Crown were subsequently prepared to readily accept that this confession was false and to put forward an alternative scenario."

In paragraph 149, the Commission continues:

"The Commission also notes that the applicant's confession, if true, was consistent with the evidence of Mr. and Mrs. McSherry and Mr. and Mrs. Scott that the applicant was in possession of the stolen property on the night of Friday 24 January 1992. However the existence of the confession evidence posed a dilemma for the applicant's defence counsel. While the confession pointed to peculiarities in the Crown's position, it would, in the circumstances of the case have been extremely likely to be prejudicial to the applicant. It is reasonable to believe that a jury might not have been expected to appreciate the difficulties that a confession to having assaulted the deceased on the Friday night posed for the Crown, whose eventual position was that the murder had taken place on the Saturday night, and the applicant's counsel would certainly have been concerned that the very existence of the confession would have had some impact on the jury, regardless of the inconsistencies involved."

In paragraph 150 the Commission continues:

" ... the Commission is of the view that the confession, and the manner in which it was given, are material to the case. The Commission notes that the confession suggests a scenario for the applicant's involvement in this case, which is more consistent with the evidence in the case, than the scenario put forward by the Crown."

The grounds of appeal
[19] In accordance with Rule 19B.1 of the Act of Adjournal (Criminal Procedure Rules) 1996, the applicant has lodged a Note of Appeal containing four grounds of appeal, to which we refer for their contents. In ground 1, reference is made to circumstances which, it is said, lead to the conclusion that a miscarriage of justice has occurred. It is claimed that the trial judge erred in law in rejecting the submission of defence counsel that there was insufficient evidence to entitle the jury to convict the appellant or murder. Further, it is averred that there was not sufficient cogent evidence before the jury to entitle them to convict the appellant of murder. In any event, it is said that no reasonable jury, properly directed, could have returned the verdict of guilty of murder which they did. In ground 2, related to the contents of the police statement from Joyce McMillan, it is claimed that, in the circumstances existing at the time of the trial, proper consideration could not be given to the calling of Ms. McMillan as a defence witness. The Crown did not lead her evidence. In the absence of that evidence it is said that a miscarriage of justice has occurred. If evidence in conformity with her police statement had been led from Ms. McMillan at the trial, it is claimed that it might have raised a reasonable doubt as to the appellant's guilt in the minds of a properly directed jury. In ground 3 it is contended that a miscarriage of justice has occurred in consequence of the situation relating to the tape recorded police interview with the applicant. It is averred that the Crown persisted before the jury in a position which was contradicted by statements made by the applicant in the police interview, without placing before the jury the statements made by him to the police in the course of that interview. In ground 4 the applicant adopts the factual content of the Commission's Statement of Reasons.

Submissions for the applicant
[20] Senior counsel for the applicant, in explaining his position, referred to the grounds of appeal. He recognised that there were certain difficulties for him in relation to these. As regards each of the substantive grounds, there might be insufficient material to enable the court to conclude that a miscarriage of justice had occurred. However, he founded upon the effect of the combination of factors referred to in them. Dealing with the appeal which had followed in ordinary course after the conviction, it was submitted that its limitations had to be recognised. It was bound to have been concerned with evidence which was available at the trial, rather than evidence which was not, such as that of Joyce McMillan.

[21] The applicant's contentions in these proceedings were essentially based upon developments subsequent to the original appeal hearing. In that connection attention had to be focused upon the evidence of Joyce McMillan. In particular, two questions arose: (1) should that evidence now be considered?; and (2) what effect would it have had? As regards the first of these questions, it was recognised that certain difficulties existed. Both the Crown and the defence knew of her existence at the time of the trial. The police statement in the hands of the Crown had been made available to the defence. Defence enquiries relating to her significance as a potential witness were never brought to a conclusion. It was open to the court to hold that a miscarriage of justice might be based upon "the existence and significance of evidence which was not heard at the original proceedings", subject, of course, to the statutory constraints, as provided by section 106(3)(a) of the 1995 Act. One of these was that such evidence could found an appeal "only where there is a reasonable explanation of why it was not so heard", as provided by section 106(3A) of that Act. In this connection reference was made to the elucidation of the provisions of section 106(3A) of the 1995 Act in Campbell and Steele v. H.M. Advocate 1998 S.C.C.R. 214 at pages 242 and 270. If what had occurred here could be categorised as a "tactical decision" not to lead evidence from Joyce McMillan, that would constitute an obstacle to its consideration now. Further, such a decision could not be said to be of a kind which would give rise to an Anderson ground of appeal. Plainly if there was no "reasonable explanation" for the evidence not having been heard, it was not necessary to consider its content or significance.

[22] An alternative approach was that it might be concluded that a miscarriage of justice of the kind referred to in section 106(3)(b) of the 1995 Act had occurred, that is to say, that the verdict was one which "no reasonable jury, properly directed, could have returned." The court had given consideration to this kind of ground of appeal in King v. H.M. Advocate 1999 S.C.C.R. 330, where it considered the approach to irreconcilable bodies of evidence. It was affirmed that a jury, having considered all the evidence, could reasonably reject a body of evidence precisely because it was inconsistent with another body of evidence which they had decided to accept. However, it had to be recognised that the evidence pointing to the guilt of the accused in King v. H.M. Advocate was described by the court as "very powerful". That could not be said here. Smith v. H.M. Advocate (unreported) (19 January 2005) was a similar case. Reference was made to paragraphs [20]-[23] of the Opinion of the Court. It was recognised there that there might be cases in which the evidence against the Crown case was so overwhelming in comparison to the evidence relied on by the Crown that no reasonable jury could convict.

[23] Senior counsel for the applicant went on to consider the terms of ground of appeal 3. The results of the tape recorded interview were important, since it was upon the basis of them that the police had decided to charge the applicant with murder. The difficulty which emerged from the content of the interview was that the admissions made related to a limited assault on the Friday evening. That was, of course, consistent with the evidence of the McSherrys and the Scotts in relation to the applicant's possession of stolen goods. However, it was also consistent with the evidence led in support of the alibi put forward before the jury on the applicant's behalf. The Crown had not put the interview before the jury in evidence. The applicant's advisers had been in possession of a psychological report which concluded that the applicant was vulnerable to the making of false confessions and would have been likely to change his story, if subjected to the pressure of police questioning. In these circumstances the applicant's advisers had felt unable to place the evidence of the interview before the jury, being mindful of the possible prejudice to him of such a course. Yet the Crown had persisted before the jury in a criticism of the evidence of the four witnesses mentioned, which evidence was in fact consistent with statements made by the applicant in the police interview. That was done without the contents of the interview being put before the jury. In all these circumstances, a miscarriage of justice had occurred.

[24] Senior counsel recognised that the concept of "miscarriage of justice", enshrined in section 106(3) of the 1995 Act, was a general concept, examples of which were given in subparagraphs (a) and (b) of that subsection. The position of the applicant here was essentially that a miscarriage of justice had occurred, which was based on a combination of factors.

Submissions of the Crown
[25] The Advocate depute indicated that the Crown sought to support the conviction. The various strands relied upon by the applicant were independently so weak that a miscarriage of justice had not been demonstrated. The background was that the original appeal court had affirmed that there had been sufficient evidence to justify the conviction. Nothing that had happened or been said subsequently could alter that situation. There remained sufficient evidence to justify the conviction, a state of affairs recognised by counsel for the applicant. There was compelling evidence suggesting that the applicant had been in the deceased's flat where he had dishonestly acquired property of the deceased, in association with a serious assault. That was evident from the blood stain on the camera bag and the contents of the plastic bag in the flat. It could properly be concluded that the applicant had been responsible for that. The state of the plastic bag indicated that it had been distorted in a struggle. The presence in that bag of the fascia and parts of the video cassette recorder confirmed that violence had occurred. There was also evidence that blood had been smeared on that bag before it got on to the floor. That pointed to the deceased being involved in the struggle and bleeding. Subsequently, of course, the applicant had been in possession of the video cassette recorder, with the exception of the fascia and broken fragments. The forensic evidence available at the trial indicated a fit between the broken video cassette recorder and the parts found in the bag and elsewhere in the flat. Furthermore, the stretch marks on that bag coincided with the dimensions of the video. None of these pieces of evidence had been called in question by anything in the statement of Joyce McMillan. The camera bag with the presence of blood on it also linked the applicant with the infliction of violence on the deceased. Admittedly, the blood type involved was possessed by 36% of the population, but could have come from the deceased. Joyce McMillan spoke of a previous assault on the deceased about a month before his demise. That circumstance might detract from the significance of the blood on the camera bag, but, even if it were taken out of the equation, there was a powerful case against the applicant.

[26] It was necessary also to take into account the evidence of Patrick Harkins relating to the conversation with the applicant on the Thursday following the discovery of the body of the deceased. Certain points regarding that required to be emphasised. First, the applicant had raised the topic of conversation; secondly, to the extent that the applicant's words were self-incriminatory, they did not relate to action on any particular day; thirdly, the fact that that witness had not taken the remarks seriously did not matter. In all the circumstances there was ample evidence to support the applicant's conviction.

[27] Under reference to King v. H.M. Advocate (supra) and Smith v. H.M. Advocate (supra) it had been argued that the existence of a very strong Crown case was necessary before a jury's decision to reject irreconcilably different evidence could be supported. It had been submitted that the Crown case here was not of that character. With that contention the Advocate depute disagreed. The Crown case here had been a strong one. In any event, in the cases mentioned the exculpatory evidence had been substantially stronger than that founded upon in the present case. In the case of Smith v. H.M. Advocate there had been a fairly good Crown case, but no fewer than 27 defence witnesses claimed to have seen the deceased alive after the Crown said that he had been killed. That was quite a different situation from that involved here. There would be difficulty in endeavouring to reinvestigate the matter at this stage, since of the four relevant witnesses who had given evidence at the trial, two were now dead and one was in such a medical condition as to be incapable of being questioned. Only Mrs. Scott remained as a potential witness. However, on any view their evidence was not so overwhelming as to render conviction in the present case impossible by a reasonable jury.

[28] The Crown position had been that the Scotts and the McSherrys were mistaken about the day on which the relevant events had occurred. It had to be recognised that all were heavy drinkers. They had started drinking on the Friday. A factor of importance was that the trial judge had left the jury in no doubt as to the importance of the issues relating to the evidence of the McSherrys and the Scotts, as appeared from pages 26A-27A of his charge. That was a powerful direction. A factor of importance in the evidence was that Mrs. Docherty, who had seen the deceased alive late on the Saturday afternoon, indicated that he had not mentioned to her any theft or robbery. Had such a thing occurred, he would have been likely to have done so.

[29] Turning to the subject-matter of ground of appeal 2, the advocate depute characterised it as a weak feature of the applicant's case. Before the police statement of Joyce McMillan could be introduced, there would require to be a "reasonable explanation", within the meaning of section 106(3A) of the 1995 Act, as to why the material was not heard at the trial. The reality was that decisions had been deliberately taken, which were sound and responsible, not to call her. In this connection reference was made to Campbell and Steele v. H.M. Advocate (supra). Plainly a "tactical decision" had been made not to call her in evidence; that could not now be transmuted into a reasonable explanation.

[30] Even if the hurdle constituted by section 106(3A) of the 1995 Act could be overcome, it was necessary to consider the potential significance of the evidence in question. In this connection reference was made to Al Megrahi v. H.M. Advocate 2002 SCCR 509 at pages 584 to 585. It would have to be shown that the evidence was

"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."

An appeal court in assessing the significance of additional evidence would require to be satisfied that the additional evidence was

"(a) capable of being regarded as credible and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial."

Judged by these standards, the evidence of Joyce McMillan was not of the requisite character and significance. There were good reasons why a reasonable jury would have rejected evidence based upon Joyce McMillan's police statement as unreliable or incredible. In the first place, it was submitted that she was inherently unreliable. She had given the police statement in the week after the discovery of the body of the deceased. However, she subsequently failed to attend for Crown precognition on two occasions on account of excessive drinking. Further, she subsequently failed to keep an appointment with the applicant's advisers. She had been drunk when she gave a precognition to them on 12 March 1992. In the second place, the contents of the police statement were directly contradicted by the contents of the precognition obtained by the applicant's advisers, as appeared from paragraph 118 of the Commission's reasons. The position described in the precognition as to the now deceased's practice as regards opening the door of his flat was confirmed by the deceased's sister, the district nurse and the health visitor. In the third place, Joyce McMillan, in her police statement, had given a long list of allegedly frequent visitors to the deceased's flat. The Commission had looked into that aspect of the matter. There were 18 names on the list. The police had been able to say that ten of them had given statements to the police on enquiry. They all denied having been in the deceased's flat. In all these circumstances, there were strong reasons to doubt whether the contents of Joyce McMillan's police statement could be described as credible or reliable. In any event, there remained the question of whether the contents of her police statement could be said to be likely to have had a material bearing on or play a material part in the determination by the jury of a critical issue at the trial. The position was that at best for the defence her evidence might have called into question the significance of the blood on the camera bag. However, it would have done nothing to undermine the force of the evidence linking the applicant to the blood-stained plastic bag.

[31] Turning to ground of appeal 3, the Advocate depute confirmed that the Crown had been in possession of the tape recorded interview between the applicant and the police. They also had a psychologist's evidence to the effect that the applicant was not a person of high intelligence and was likely to make incriminating statements, without realising the consequences, and to be suggestible. However, whatever might or might not have been the value of the contents of the interview, it had been open to the applicant's advisers to lead evidence of it. There had been no obligation on the Crown to lead the evidence, which was available to the defence. In all the circumstances, the fact that the jury did not hear that evidence did not amount to a miscarriage of justice. One other aspect of the case had to be mentioned. The applicant had lodged an alibi in the trial, which had been spoken to by members of his family. The jury had rejected that material, suggesting that the applicant had been at home almost all day on the Saturday. There were good reasons why that evidence had been rejected.

Decision
[32] At the outset, in dealing with this referral by the Commission, it is important to recognise that section 194B(1) of the 1995 Act provides that, following a referral,

"The case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under Part VIII ... of this Act."

That entails that the provisions of inter alia section 106 of the 1995 Act apply in this context. Section 106(3) provides:

"By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on -

(a) subject to subsections (3A) to (3D) below, the existence and

significance of evidence which was not heard at the original proceedings; and

(b) the jury's having returned a verdict which no reasonable jury, properly

directed, could have returned."

Section 106(3A) provides:

"Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard."

[33] It is a consequence of these provisions that, before this court can disturb a conviction in referral proceedings such as these, it is necessary for us to identify the existence of a miscarriage of justice. The statutory provisions do not, of course, elaborate what may constitute a miscarriage of justice, except in so far as subsection (3)(a) and (b) furnishes examples of what may constitute a miscarriage. No doubt, it would be difficult or impossible and unwise to attempt a comprehensive definition of the concept of miscarriage of justice; it is sufficient to say that it may cover a wide variety of situations in which, for one reason or another, the court concludes that justice has not been done, in the particular circumstances of a case. However, having said that, it has never been recognised by the court that some general concern, or unease, in relation to a particular conviction, with no further specification, could be a basis upon which a conviction could be disturbed.

[34] In the course of the discussion before us, attention came to be focused on three aspects of this case, which, broadly speaking, are reflected in grounds of appeal 1 to 3 inclusive stated on behalf of the applicant. As regards the content of ground of appeal 1, senior counsel for the applicant made clear to us that he was not suggesting that there had been insufficient evidence in law to entitle the jury to convict the applicant of murder. A submission to that effect was made to the trial judge and to the appeal court in the original appeal but, in our view, rightly rejected. The contention which was advanced in relation to this part of the case was to the effect that there was concern over the rejection of the evidence of the McSherrys and the Scotts relating to the date on which they came to be in possession, obtained from the applicant, of items taken from the deceased's flat. Their position was that that had occurred on the Friday evening. If that were correct and proceeding upon the view that the deceased was last seen alive in the late afternoon of Saturday, the Crown's contention that the property was taken from the deceased and violence inflicted upon him in the same incident would be undermined. The case as put to the jury by the Crown was that there was a single incident in which these things happened together, which the jury had accepted. The submission on behalf of the applicant was not that the verdict was one which no reasonable jury properly directed could have returned; rather it was that this aspect of the case, in association with others, gave such cause for concern that the existence of these several factors founded upon amounted to a miscarriage of justice.

[35] In King v. H.M. Advocate this court was concerned with the application of section 106(3)(b) of the 1995 Act. Of that provision it was said at page 334:

"It follows from what we have said about the approach which this court should adopt that, although we require to examine the evidence which was before the jury, it is not for us simply to substitute our view of that evidence for the view which the jury took. In particular, a miscarriage of justice is not identified simply because, in any given case, the members of this court might have entertained a reasonable doubt on the evidence. If that were all that was required, Parliament would have gone far towards replacing trial by jury with trial by the judges of this court. The words in the provision were clearly chosen to avoid any risk of that. Applying the words which Parliament has enacted, we can quash the verdict of a jury only if we are satisfied that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant was guilty."

Following that approach, the question has to be asked of whether the verdict in this case, on the evidence before the jury, could have had a rational basis. In that connection, it is to be noted that, in a case where there was a body of evidence which was quite inconsistent with the accused's guilt, for example that supporting an alibi, a jury could reasonably reject such evidence precisely because it was inconsistent with Crown evidence which they had decided to accept. No more elaborate explanation for rejection need be sought. In Smith v. H.M. Advocate, at paragraph 23, it was indicated that there might be cases in which the evidence against the Crown case might be so overwhelming in comparison with the evidence relied upon by the Crown that no reasonable jury could convict. In these circumstances it becomes necessary to assess the evidence in the present case with a view to identifying whether the jury had a rational basis for their rejection of the evidence of the Scotts and the McSherrys relating to the controversial date. We have come to think that there did exist in this case such a basis. The evidence relating to the plastic bag, on which blood was smeared, found in the deceased's flat, which contained the fascia of the video cassette recorder, in association with the subsequent possession by the applicant of the recorder without its fascia and broken parts itself could constitute such a basis. In addition to that, there was the evidence relating to the possession by the applicant of the camera case with blood on it, although we recognise that the significance of that piece of evidence may be more debatable. Furthermore, account must be taken of the evidence relating to the state, as regards alcohol, of the Scotts and the McSherrys during the weekend in question. As was submitted by the Advocate depute, they became involved in heavy drinking during the course of that weekend. All of these circumstances, in our view, would have entitled a reasonable jury to accept the Crown contention that the Scotts and the McSherrys were simply mistaken about the date when the crucial events occurred.

[36] Ground of appeal 2 is focused on the possession by the Crown of the police statement from Joyce McMillan, now deceased. In relation to that material, which was of course also available to the applicant's advisers, the question arises of whether it could form the basis of a conclusion that there had been a miscarriage of justice, that material not having been introduced in evidence in the original proceedings. Having regard to the provisions of section 106(3A), it is necessary to consider whether a "reasonable explanation", within the meaning of that provision, exists as to why it was not so heard. The picture which emerges from the Commission's enquiries into this matter, set forth in paragraphs 117 to 124 of its Statement of Reasons, is that neither the Crown nor the applicant's advisers considered that it would be appropriate for Ms. McMillan to give evidence. At the time of the trial, she was plainly suffering from an addiction to alcohol. Furthermore, she had given a precognition statement to the applicant's solicitor which was in serious conflict with the contents of the police statement. We conclude on the facts available to us that both the Crown and the applicant's advisers simply made what can properly be called a tactical decision not to lead the evidence of Joyce McMillan. That being the case, in our opinion, there is no "reasonable explanation", within the meaning of subsection (3A) of section 106 of the 1995 Act, why the evidence was not heard at the trial. In this connection we refer to what was said in Campbell and Steele v. H.M. Advocate at pages 242 by the Lord Justice Clerk and 270 by Lord Sutherland. We refer particularly to Lord Sutherland's observations in relation to the word "reasonable" in the context:

"Plainly the word must have some significance as a qualification of the explanation. I do not consider that 'reasonable' in this context can be equiparated with 'rational'. An explanation that it was decided not to lead evidence, the existence of which was known to the appellant's advisers, for tactical reasons, would undoubtedly be perfectly rational but it would be contrary to the interests of justice to permit the defence to keep some evidence up its sleeve only to be produced to the appeal court in the event of the verdict of the jury being unfavourable."

In these circumstances we conclude that it would not be open to this court now to allow evidence concerning the contents of Joyce McMillan's police statement to be considered in connection with these proceedings. In these circumstances questions as to the quality and significance of that evidence and as to the effect which it might have had had it been led at the trial do not arise for consideration. Suffice it to say, in relation to that matter, that, following the approach to fresh evidence desiderated in Al Megrahi v. H.M. Advocate at pages 584-585, for the reasons submitted by the Advocate depute, we would have been unable to conclude that the evidence concerned would have been found to be of material assistance to the jury in considering the critical issues at the trial.

[37] We turn now to consider the subject-matter of ground of appeal 3. The tape recording of the interview and a transcript of it were produced as productions at the trial. Neither the Crown nor the applicant's advisers thought fit to make use of that material at that time. Having regard to the contents of the interview, to which reference has already been made, we regard that position as quite understandable. For different reasons, no doubt, the Crown and the defence considered that it would not be appropriate for the material to be put before the jury. Once again, it appears to us that that approach to the contents of the interview can be categorised as a tactical decision on the part both of the Crown and of the defence. That being so, for reasons which have already been explained, there could not be a "reasonable explanation" of why evidence relating to it was not heard, within the meaning of section 106(3A) of the 1995 Act. We consider that the mere existence of that material, albeit in association with the advancement of a Crown case which was, in part, inconsistent with the contents of the interview, cannot be characterised as a miscarriage of justice. We say that in full knowledge of the fact that the applicant's admission in the interview related to events on the Friday night, to that extent being consistent with the evidence of the Scotts and the McSherrys.

[38] Our conclusion then on the specific aspects of the case which were debated before us is that none of them can be seen as demonstrating the occurrence of an identifiable miscarriage of justice. It appears that our view relating to these matters coincides with that of the Commission expressed in paragraph 125 of its Statement of Reasons, already quoted. That being the approach of the Commission, we are bound to say that, even if we had been persuaded, like it, that there was a reasonable doubt as to the applicant's guilt, it would not have been open to us to substitute our view for that of the jury, by disturbing the applicant's conviction. As is apparent from the statutory provisions to be found in section 106 of the 1995 Act, the function of this court is not to conduct a general review of jury decisions and, in the event of its being persuaded that they are mistaken, substituting its own view in place of the jury's verdict. The terms of section 106(3)(b) provide the sole criterion for the assessment of a jury verdict in the light of the evidence. If we were to decide on some general basis that the verdict in this case was unsatisfactory in the light of the evidence, and quash the conviction, we would be engaging in an activity which Parliament has not authorised. In all these circumstances, we conclude that a miscarriage of justice has not been demonstrated. It follows that the jury's verdict in this case cannot be disturbed.