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APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
Lord OsborneLord Abernethy Lord Carloway |
[2006] HCJAC 10Appeal No: XC760/04OPINION OF THE COURT delivered by LORD ABERNETHY in APPEAL AGAINST CONVICTION by NEIL DANIEL MURRAY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Respondent: Ms. A. Grahame, A.D.; Crown Agent
1
February 2006
[1] The
appellant is Neil Daniel Murray. On 15
September 2004, after a six-day trial at the High Court in Glasgow, he was
convicted by majority verdict of murdering Duncan Stirrat Harrison on 3 April
2004 in a motor vehicle then parked in Greenend Place, Springboig, Glasgow by
discharging a shotgun at him and shooting him in the head and neck. On the same date he was sentenced to life
imprisonment, backdated to
[2] The
appellant has appealed only against his conviction. The Note of Appeal contains four grounds of
appeal as follows:
"(1) That the learned
Trial Judge erred in repelling a submission under
Section 97 of the Criminal Procedure (
(2) That the learned Trial Judge erred in
his assessment of the
aforementioned submission in that he failed to properly examine the
quality of the various adminicles of evidence which formed the strands in what
was an entirely circumstantial Crown case.
(3) That the learned Trial Judge misdirected
the Jury in so far as he failed
to give the Jury a specific direction that the evidence of
Crown Witness Michelle McCreery had to be accepted as credible and reliable
before a conviction could follow.
(4) That the learned Trial Judge misdirected
the Jury by failing to give
adequate directions as to the nature of circumstantial
evidence and the approach to be taken to such evidence in order to find
corroboration in the Crown case."
[3] At
the close of the Crown case Mr. Finnieston, solicitor advocate for the appellant,
made a submission of no case to answer in terms of section 97 of the Criminal
Procedure (
[4] In
his submissions to this Court Mr. Finnieston took these two grounds
together. He reminded us that at the
trial there was no dispute that the deceased had been murdered as alleged in
the charge. The issue was whether the
Crown had proved that the appellant was the culprit. In regard to that issue the Crown case was a
purely circumstantial one;
there was no evidence directly implicating the appellant. Mr. Finnieston then reminded us of the
various pieces of evidence by reference to the trial judge's Report. They are fully set out in the Report and are
as follows:
" On
Between 7.15 and
Mrs Ronald could not say from
her angle of view whether it was a man or a woman since the figure was coming
out of the car backwards. The two
witnesses agreed about what the figure was wearing, namely, a blue top with a
hood. Both said that the person ran away
down the road.
The car remained where it had come
to a stop. About
The deceased's partner, Michelle
McCreery, who was the mother of three of his children, said that in recent
weeks before his death, Duncan Harrison had feared for his life. He made reference to receiving a bullet in
the back of his head for something it was said he had done. He would, she said, never have driven into a
cul-de-sac like
The deceased was shot in the left
side of the neck. The police firearms
expert, David Mitchell, was of opinion it was by the discharge of one shot from
a twelve bore single-barrelled shotgun, the barrel of which had been shortened.
The pathologist, Dr McAdam,
confirmed that when the weapon was discharged, the barrel was very close to the
skin of the neck. She and the police
firearms expert were of opinion that the person who fired the shot was in the
front passenger seat or perhaps was leaning over that seat from outside the
car. It was very unlikely that the shot
was fired from either of the rear seats of the car. The trajectory of the shot was backwards and
downwards. The person
who fired the shot, if he was sitting in the front passenger seat or leaning
over it from outside the car, would have received a spray of blood from the
shotgun wound.
The forensic scientist, Marie
Campbell, took tapings from within the car.
Tapings from the front passenger seat and the upright back of that seat
were taken and disclosed skin and dandruff material. On further scientific examination they
revealed the appellant's DNA. In the
front passenger seat area the only other traces of DNA came from John Blair,
the registered owner of the car, and the deceased. The skin and dandruff would have been
deposited fairly recently, according to Ms Campbell, by which she meant,
within hours or perhaps a day or two, depending upon how much use had been made
of the front passenger seat. The car had
four doors.
On the inside of the front passenger
metal door handle was a fingerprint. It
could clearly be seen with the naked eye in the light of a torch. Subsequently, it was found to be identical
(in respect of a minimum number of sixteen ridge characteristics) with the left
middle finger of the appellant. It was
not established in evidence how recently the fingerprint had been deposited on
that surface.
On
John Broadfoot - a cousin of the appellant
- said that he had helped the appellant to move some of his possessions on
On
By
Mr. Finnieston submitted that
taking all that evidence together it amounted to no more than suspicion that
the appellant was the culprit. It was
not sufficient to justify the appellant being convicted of the murder. The trial judge should therefore have
withdrawn the charge from the jury and acquitted the appellant.
[5] In
our opinion there was quite sufficient evidence in law to justify the appellant
being convicted of the murder and the trial judge was therefore correct to
repel the submission of no case to answer.
[6] The
third ground of appeal focuses on the evidence of Michelle McCreery. She was the deceased's partner. Her evidence covered a number of matters, as
recorded above. This ground of appeal,
however, is concerned with her evidence in its entirety. As the trial judge explains in his Report,
her evidence could not be viewed as a whole.
Both the Crown and the defence relied on passages in her evidence. The trial judge's view was that it was
therefore unnecessary and would have been inappropriate for him to have given
the direction set out in the ground of appeal.
Mr. Finnieston appeared to have accepted those comments because, before this
Court, he restricted himself to submitting that the trial judge should have
directed the jury that if they did not accept the evidence which Michelle
McCreery gave as to what was said by the appellant in their conversation on 6
April 2004, then there was not sufficient in the rest of the evidence to
entitle them to convict. Mr. Finnieston
said that that piece of evidence was so important and significant that it was
really at the centre of the case. If it
was not accepted, the rest of the case was so weak that there was not enough in
it to justify the accused being convicted.
[7] We
do not accept that submission. As Mr.
Finnieston acknowledged, such a direction would not have been normal in a
circumstantial case. In a case such as
this where there was evidence of a considerable number of relevant
circumstances it is not realistic or helpful for a trial judge in his charge to
go through all the many possible permutations of circumstances that the jury
might or might not accept. Moreover,
while we are prepared to accept that this particular piece of Michelle
McCreery's evidence was important, we do not accept that it was of such
importance that if it was not accepted, there was not sufficient in the rest of
the evidence to justify the appellant being convicted.
[8] The
fourth ground of appeal is a more general criticism. Taking us through the trial judge's charge
Mr. Finnieston said that there were no specific directions as to how the jury
should approach the evidence in a circumstantial case such as this when
deciding whether the Crown had proved their case. There should have been such directions. Moreover, the trial judge might have assisted
the jury in their assessment of the evidence.
He might have said, for example, that the jury might think that some of
the circumstances might not be of much significance unless they could be linked
to the appellant.
[9] In
response the Advocate-Depute pointed out that closing speeches to the jury by
both the Crown and Mr. Finnieston had been made on the same morning as the
trial judge gave his charge. In the
Crown speech the Advocate-Depute had detailed the circumstances which she
relied on and the inferences to be drawn from them. Mr. Finnieston, on behalf of the appellant,
had in his speech detailed the circumstances that he relied on, he criticised
the Crown approach and he put forward the inferences or non-inferences which he
submitted the jury should draw. For the
trial judge then to go into all the circumstances again was unnecessary. If he had tried to assess the circumstances
in any way, that might have been dangerous.
The charge was adequate and did not amount to a
misdirection.
[10] In his
general directions as to how to assess the evidence the trial judge said this
to the jury:
"It is for you to decide what value
should be attached to particular pieces of evidence. So it is for you to decide the relative
importance of different pieces of evidence and it is for you to decide what
inferences and conclusions you are prepared reasonably to draw from such
evidence as you accept."
In the context of his directions on corroboration he said
this:
"It (corroborated evidence) may take
the form of only circumstantial evidence given by various witnesses where the
several circumstances when taken together support the inference that the
accused is guilty of committing the crime.
I shall return to that aspect of corroboration later in my charge."
Later in his charge, when dealing with the Crown case, the
trial judge said this:
"Now, the evidence led by the Crown
and indeed the only evidence in the trial is wholly circumstantial and in that
respect this case is somewhat unusual but not exceptional and circumstantial
evidence, about which I have given you directions in relation to corroboration,
is to be contrasted with direct witness evidence."
Then, after reminding the jury that the question for them was
whether the Crown had satisfied them that it was the appellant who was the
culprit, he continued:
"The advocate depute has referred to
a range of circumstantial evidence; the question for you is whether you
can infer from that evidence that the accused was Duncan Harrison's assailant."
[11] In our opinion apart from what might be called the standard
directions which a trial judge would normally give to the jury in every case,
the directions which should be given will depend on the particular
circumstances of the case. In the
particular circumstances of this case we are unable to say that the trial
judge's directions on the matter in question were inadequate such as to amount
to a misdirection.
No doubt some judges might have said more as to the approach to be taken
by the jury in dealing with the circumstantial evidence but we are not
persuaded that it was necessary to do so here.
We have only to add that we agree with the Advocate-Depute that it might
have been dangerous if the trial judge had suggested to the jury that some
parts of the evidence might seem of more significance to them than others.
[12] For these reasons each of the grounds of appeal fails. The appeal is refused.