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Greenhill v. Her Majesty's Advocate [2005] ScotHC HCJAC_5 (26 January 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Kirkwood

Lord MacLean

[2005HCJAC5]

Appeal No: XC172/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

APPEAL AGAINST CONVICTION

JAMES STEPHEN GREENHILL

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Jackson, QC; Grady & Co.

Respondent: McConnachie, AD; Crown Agent

26 January 2005

Introduction

[1] On 13 July 2000 at Glasgow High Court the appellant was found guilty of the following charge:

"On 3 April 1999 at the Maxwell Arms public house, 4 Maxwell Road, Glasgow, you did assault Greg Daniel Reid ... and strike him on the body with a knife or similar instrument and did murder him ... "

On 4 July 2003 the court refused his appeal so far as it was based on the question of sufficiency of evidence and the related question of an alleged misdirection on the point. The Opinion of the Court delivered by Lord Osborne sets out in detail the essential evidence for both the Crown and the defence.

The remaining grounds of appeal

[2] The grounds of appeal lodged in September 2000 have been amended on four occasions. The three remaining grounds relate to fresh evidence. Ground 1(A) is that Carol Ann Bain, the deceased's girlfriend, who gave evidence that she saw the incident and identified the appellant as the assailant, has given an affidavit to the effect that her evidence was untrue; that on the night of the murder she had consumed a large quantity of drugs and drink; that she could not see the incident from her vantage point; that she does not know who killed the deceased; and that after she identified a stand-in at an identification parade, two of the deceased's friends, whom she declines to name, approached her and threatened her to make her say that the appellant committed the murder.

[3] In support of this last allegation, the appellant's agents have lodged an affidavit of Paul Motherwell, a friend of the deceased. He says inter alia:

"As far as I can recall there was a lapse of time between the murder itself and the case proceeding against James Greenhill. I do recollect clearly that Carol Anne Bain came to my house in Allison Street after she had attended an identification parade which I believe had taken place at Aitkenhead Road police office. Carol Anne Bain was in a terrible state and told me that she had been advised by the CID that she had picked out a stand-in and consequently had failed to pick out the suspect or arrested person. She was very upset at having failed to identify the person whom the police believed was the killer of her boyfriend. She asked me for advice as to what she should do. Both she and I were concerned that the person responsible for Greg's murder should be convicted. This was for our own peace of mind, but also to allow Greg's family to try and put the matter behind them and get on with their lives. I therefore told Carol Anne Bain that when she went to court she must pick out the man sitting in the dock between the two police officers. The conversation which took place immediately preceding this advice was that Carol Anne Bain said to me, 'what's Greg's mother going to think of me?' As I recollect, I said words to the effect 'when you go in to court you pick out the cunt who's in the middle of the coppers. It's the one with the cop at each side of him'.

[4] The appellant incriminated Harry Houston by way of special defence. The defence called Houston as a witness. He refused to answer any question about the incident on the ground that it might incriminate him. In her evidence Carol Ann Bain described the appellant as having worn a cream Lacoste three-quarter length jacket on the night of the murder. Ground 1(B) is that there is now evidence that before the murder Houston had obtained a coat identical to that said by certain witnesses to have been worn by the assailant. This coat is said to have been obtained by the fraudulent use of a credit card that had been stolen from the Post Office sorting office in Helensburgh. The ground of appeal does not describe the coat.

[5] Ground 1(C) is that Houston has since confessed to the murder. The appellant's agents have lodged an affidavit by Alexander Minty in which he speaks of a chance meeting with Houston in a public house in March/April 2004 in the course of which Houston said inter alia:

"It was me that stabbed that guy. I done him with a screwdriver in the pub ... if the polis had traced a white jacket and credit cards to me I'd be in the jail doing life."

There is also an affidavit of Steven Barclay which is entirely hearsay. Barclay says that Minty told him that Houston had admitted his guilt: but there is a discrepancy between their accounts. Barclay says that Minty told him that Houston had referred to a "white tracksuit."

[6] The post-mortem Report by Professor Peter Vanezis and Dr. Basil Purdue identified three relevant injuries; namely, (1) an oval apparent stab entry wound of the abdomen in the pit of the stomach 0.8 cm long, running almost vertically, its upper end 2 cm below the point of the xiphisternum (lower end of the breast bone); (2) an apparent transfer stab slit in the costochondral (gristle-bone) junction of the left eighth rib extending into the muscle of the seventh intercostal space alongside, about 8 cm long overall; and (3) a shallow transverse cutting injury of the inner aspect of the left forearm extending towards the front, finely lacerated or less than cleanly incised, 3 cm long and centred at a point 8.5 cm below the point of the elbow at the junction of the upper and middle thirds of the forearm.

[7] On the basis of these and other findings, conclusion 3 of the Report is:

"The fatal injury is likely to have been inflicted using a knife with a long tapering pointed blade not significantly less than 27cm (about 11 inches) in length, though it could have been more. The tip of the blade may have had two sharp edges or one sharp and one thin but less well sharpened. The impression is of a fairly well pointed weapon but one imperfectly sharpened. It is not possible to give greater detail owing to the lack of distinctiveness of the injuries still visible after surgery."

This conclusion is consistent with the evidence of an eye-witness, Michelle Staig, who saw the assailant strike the deceased with what she thought at the time was a knife.

Submissions for the appellant
[8] Counsel for the appellant submitted that the position of Carol Ann Bain was similar to that of the witness Love in Campbell v HM Adv (1998 SCCR 214). In that case the court accepted that police pressure on Love, if proved, could constitute a reasonable explanation for his not having given the new evidence at the trial. The affidavit of Carol Ann Bain was supported by that of Paul Motherwell in the passage that we have quoted. It showed that his remarks to Carol Ann Bain were such as to make her feel threatened. While Carol Ann Bain was not an essential witness for the Crown, as the court held previously, she was a significant witness, having spoken to seeing the attack and seeing the weapon itself. Her new evidence was all the more significant for the fact that she had identified a stand-in at the identification parade.

[9] Counsel was unable to argue ground 1(B) in the absence of any evidence to support it. He asked us to leave that question open for consideration at a later stage.

[10] On ground 1(C) counsel submitted that Minty's evidence was new evidence that was highly material, especially when read with that of Carol Ann Bain; and that in all the circumstances the evidence contained in the four affidavits was of such significance that a verdict returned in ignorance of it could not be considered safe. He moved us to hear the evidence of all four proposed witnesses.

Submissions for the Crown
[11] The advocate depute submitted that the new evidence of Carol Ann Bain was much less cogent than that of Love in Campbell v HM Adv (supra). Love's affidavit in that case explained in clear, precise and explicit detail why he failed to give the proposed new evidence at the trial. Carol Ann Bain's new evidence contained no such explanation. She made no reference to Paul Motherwell at all. It could not be assumed that he was one of the two friends of the deceased of whom she speaks. His affidavit could not reasonably be read as describing threats to Carol Ann Bain. Her own affidavit did not cast doubt on the other evidence incriminating the appellant to which the court had referred in its earlier Opinion. There was no evidence that Houston had worn a white jacket on the night in question. His alleged confession was inconsistent with the post-mortem Report.

Conclusions
[12] Counsel are agreed as to the tests that are to be applied in an appeal of this kind (Criminal Procedure (Scotland) Act 1995, s 106(3), (3A), (3C); cf Kidd v HM Adv, 2000 SCCR 513; Cameron v HM Adv, 1991 JC 251; Church v HM Adv, 1996 SCCR 29). We need not quote the legislation or discuss the cases. The straightforward question in this case is whether the proposed new evidence satisfies the agreed tests.

Ground 1(A)
[13] In our opinion, this ground is ill-founded. Carol Ann Bain's affidavit, which is in effect a confession to perjury and to an attempt to pervert the course of justice, is not supported on any material point by any independent source. There was no suggestion at the trial that her recollection of the facts was impaired by drink or drugs, and no independent evidence is tendered in support of that suggestion. Furthermore, she has failed to specify the nature of the alleged threats or the circumstances in which they were made; and she refuses to name those who made them. We are not prepared to assume that Paul Motherwell is one of the two men to whom she refers.

[14] In any event, we consider that Paul Motherwell's affidavit fails to disclose any statement or action on his part that could reasonably be construed as a threat, or could otherwise be reasonably thought to explain the giving of perjured evidence by Carol Ann Bain.

[15] In our opinion, the essential feature of Carol Ann Bain's affidavit is that, even if we take it pro veritate, its effect is not to exonerate the appellant, or to incriminate Houston. She merely says that she does not know who committed the murder. Even if the court were to draw its pen through the whole of her evidence at the trial, there would still remain a cogent body of evidence implicating the appellant. In particular, Sabrina Dolan identified him as the person who scuffled with the deceased, following which the deceased collapsed to the floor. Edwin Weldon said that he had bought drink for the appellant earlier in the evening and that the appellant was one of a group of men who ran from the bar, after which the deceased fell down. Ann-Marie Thompson, a barmaid, said that the man for whom Weldon had bought drinks was the man who fought with the deceased. George Dawson identified the appellant as a man whom he had seen leaving the bar immediately after the incident.

Ground 1(B)
[16] This ground is not supported by any relevant evidence and has not been pursued by counsel for the appellant. We are not prepared to continue the appeal on this ground against the unlikely possibility that the appellant's agents will find the evidence which has so far eluded them. In any event, that evidence, in our opinion, would not advance the appellant's allegations against Houston in any way. We reject this ground.

Ground 1(C)
[17] There is no corroboration of Minty's claim that Houston confessed to the murder; and there is no evidence at all that he actually committed it. While we do not exclude the possibility that an uncorroborated account of a confession by a third party might found an appeal under section 106(3)(a) of the 1995 Act, such evidence is in our view insufficient in the circumstances of this case. No witness at the trial suggested that on the night in question Houston had been wearing a coat similar to that worn by the assailant and no witness suggested that at the material time Houston had been at or near that part of the bar where the stabbing took place.

[18] Furthermore, the undisputed evidence of the pathologists is to the effect that the fatal wound and the related wound to the arm were caused by a knife. That is supported by the evidence of the eye-witness, Michelle Staig. In our view, this ground cannot succeed in the absence of any expert evidence that the deceased's injuries were also consistent with having been inflicted with a screwdriver.

[19] Since the new evidence of Carol Ann Bain does not incriminate Houston, we do not accept the submission of counsel for the appellant that the proposed evidence on this ground, if insufficient in itself, is sufficient when considered along with the evidence tendered under ground 1(A).

Decision
[20] We shall therefore refuse all three grounds of appeal and, these being the only remaining grounds, we shall refuse the appeal itself.