Scottish High Court of Justiciary Decisons

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Cite as: 2006 SCCR 419, [2006] HCJAC 52, [2006] ScotHC HCJAC_52

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Abernethy

Lord Kingarth

Lord Sutherland

[2006] HCJAC 52

Appeal No. XC613/05

OPINION OF THE COURT

delivered by LORD ABERNETHY

REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the cause

STUART MITCHELL GAIR

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: W.G. Jackson, Q.C., Ms. S. Livingston; John Macauley & Co., Glasgow

Alt: M. Stewart, Q.C., A.D., Ms. Gianni; Crown Agent

11 July 2006

Introduction and background

[1] On 30 August 1989, after a five day trial in the High Court at Glasgow, the appellant was convicted of a charge of murder. The charge was in the following terms:-

"On 11 April 1989, in North Court Lane, Glasgow ... you STUART MITCHELL GAIR and WILLIAM McLEOD did assault Peter Dewar Smith, 3 West Plean Cottages, West Plean, Stirling and did strike him on the chest with a knife or similar instrument whereby he sustained injuries from which he died in Glasgow Royal Infirmary on 29 April 1989 and did murder him."

The verdict was a majority one.

[2 ] The appellant was sentenced to imprisonment for life.

[3 ] On the morning the trial was due to start the Crown withdrew the libel against the co-accused, William McLeod. He was later led in evidence by the Crown.

[4 ] The appellant did not appeal against his conviction. He did, however, petition the Secretary of State on more than one occasion and, following the creation of the Scottish Criminal Cases Review Commission in 1999, made an application to the Commission for review of his conviction. On 11 November 1999 the Commission referred the case to the High Court of Justiciary in the exercise of its powers under Part XA of the Criminal Procedure (Scotland) Act 1995. The Commission gave a number of reasons for the referral.

[5 ] Thereafter a number of grounds of appeal were lodged on behalf of the appellant. These were later substituted by amended grounds of appeal and on two occasions thereafter what were described as additional grounds of appeal were allowed to be received. The appellant was liberated on bail on 29 September 2000.

[6 ] Although the grounds of appeal are elaborately framed, they are only four in number. The first of these was to the effect that four witnesses whose evidence the Crown relied on at the trial had now admitted to having given perjured evidence at the trial in their identification of the appellant as being at the locus of the crime. These witnesses were William McLeod (the former co-accused), Brian Morrison, David George Cairney Smith and Alan John Gillon.

[7 ] The question of identification was the principal issue. The case for the Crown was that the appellant was in the centre of Glasgow on the night of 11 April in the company of McLeod. Although McLeod changed his evidence a number of times, his ultimate position was that, after meeting the deceased in Buchanan Street Bus Station, he and the appellant had gone with him to the lane which is the locus of the crime charged. He spoke to seeing a knife in the appellant's hand. When he saw that he ran away. He said that he heard a moan behind him. The Crown invited the jury to accept that this was due to the deceased being stabbed by the appellant. The witnesses Morrison and Smith, both teenagers, who were in the company of another boy Andrew Learmonth, gave evidence as to seeing in the lane men who had earlier been in the bus station, and gave descriptions of them. They also gave evidence that shortly afterwards two of the men they had seen ran from the toilets in St. Vincent Place. Neither of them identified either the appellant or McLeod at their respective identification parades. At the trial Morrison identified both McLeod and the appellant as being the two men, and Smith identified the appellant as one of the men in the lane. Learmonth identified McLeod as one of those men but did not identify the appellant. The witness Gillon gave evidence that he was sitting in his car and saw two men, whom he later described, in the lane standing by what he described as a bundle on the ground and then running off. He identified one of them as the appellant. Two police officers, Constables Shirley Marnock and Lewis Fulton, gave evidence identifying the appellant as being in Gordon Street, not far from the locus, shortly after the alleged attack took place. He was with another man whom P.C. Marnock identified as McLeod. The body of the deceased was found near the toilets in St. Vincent Place at about 11.20 p.m.

[8 ] The appellant's defence was one of alibi. He said that at the time of the murder he was at an address in another part of Glasgow and in the company of others.

[9 ] On 28 January 2003 the Court heard submissions from counsel. Senior counsel for the appellant invited the Court to hear further evidence from the four witnesses referred to at paragraph [6] above. He also invited the Court to hear the evidence of Hector McLeod Wood, who did not give evidence at the trial but whose evidence would be relied on to support the explanation why these witnesses did not give the evidence at the trial that they now wished to give. Having heard the Advocate depute in reply the Court decided that, sitting as a bench of three judges, it would hear the evidence proposed to be given by the four witnesses, together with the evidence proposed to be led from Wood. The Crown would be afforded the opportunity to lead relevant evidence in response.

[10 ] That evidence was heard by the Court on various dates in 2004 and 2005. By interlocutor dated 7 June 2005 the Court refused this ground of appeal. The appeal was continued for a hearing on the remaining grounds of appeal, which are numbered 2, 3 and 4.

[11 ] These are to the following effect:-

(2) That the Crown had failed to disclose material information to the defence prior to or at the trial. This information consisted of (i) previous statements to the police given by the witnesses Alan John Gillon, Brian Morrison and P.C. Shirley Marnock, which were at variance with the evidence that they gave at the trial relating to their identification of the appellant; and (ii) information of a personal nature in relation to Brian Morrison. This information was of paramount importance to the defence given that identification of the assailant was the critical issue at the trial. All three witnesses had identified the appellant in court. Furthermore, Brian Morrison was the only civilian witness to identify both the appellant and the former co-accused, McLeod.

(3) The conduct of the Crown in arresting the former co-accused McLeod on the instructions of the Advocate depute and having him charged with perjury in respect of evidence he had given earlier in the day exculpating the appellant and thereafter, following his recall to the witness-box the next day and giving evidence incriminating the appellant, liberating him and taking no further proceedings against him amounted to an inducement to him to change his evidence.

(4) The appellant's representation was defective in two respects, namely:-

(i) the appellant's special defence of alibi was not properly presented in

court in that a crucial witness, Hector McLeod Wood, was not called; and

(ii) there was a failure to examine properly the medical and scientific

evidence.

[12 ] It was these grounds of appeal that were argued before us. We take ground (2) first.

Submissions of counsel

[13 ] Senior counsel for the appellant started by submitting that this case was very much on all fours with the case of Kidd v H.M. Advocate S.C.C.R. 200. In that case the appellant and another man were charged with murder by stabbing. The Crown case depended entirely on eye-witness evidence. There was evidence from various witnesses as to which of the accused had actually stabbed the deceased, but only two of them spoke to the appellant having done so. In particular, one witness, P, who gave evidence that the appellant had stabbed the deceased, had previously given a number of inconsistent and contradictory statements to the police as to whether or not she had seen the appellant stab the deceased. Both accused were convicted of culpable homicide, and the appellant's appeal against conviction was refused. The case was subsequently referred to the High Court by the Scottish Criminal Cases Review Commission on the ground that the failure by the Crown to disclose the police statements of P and other witnesses may have led to a miscarriage of justice. In the appeal the Crown conceded that P's statements should have been disclosed but submitted that the failure to disclose them had not led to a miscarriage of justice, there being evidence of another eye-witness incriminating the appellant, and the principal statement by P exculpating the appellant having been made when she appeared to be under the influence of medication or a drug. It was held by the Court that it was clear that there were material contradictions and inconsistencies between P's evidence and the statements she had made to the police, that bearing in mind that the Crown relied on the evidence of P, one of the two essential eye-witnesses, as being credible and reliable, disclosure of her police statements would have been likely to have been of real importance to the defence by tending to undermine the credibility and reliability of her evidence and thereby casting reasonable doubt on the Crown case, and that the failure to disclose her statements resulted in a miscarriage of justice. The appeal was allowed and the conviction quashed.

[14 ] Counsel submitted that it was therefore enough if the prior statement or statements of just one witness would have tended to undermine the credibility and reliability of that witness's evidence and thereby cast reasonable doubt on the Crown case. The structure of this case was as follows. The Crown case could not succeed if the jury did not accept McLeod's evidence incriminating the appellant. He was, however, as the trial judge put it in his report to the appeal court, an appalling witness. He changed his evidence a number of times. It was therefore crucially important to test McLeod's evidence incriminating the appellant by reference to the evidence of other witnesses who placed the appellant at the scene of the crime in the face of his alibi defence. In this context the evidence identifying the appellant as being at or near the scene at the material time was critical. The Advocate depute made that clear in his closing speech to the jury. He had there described the question of identification as what the jury might feel was "the main, if not the only, issue in this case" (page 490E of the transcript). The Crown therefore needed at least one of these other witnesses to corroborate McLeod's evidence that the appellant was at the locus at the material time. As the trial judge said in his report, this was not only important in relation to the identification of the appellant as having been there at that time but was crucial in relation to the question of the reliability and credibility of McLeod's evidence. The credibility and reliability of the evidence of the witnesses who identified the appellant as having been at the locus at the material time was therefore equally crucial. There were five witnesses who identified the appellant as having been in the centre of Glasgow at various times on the evening in question. Of these David Smith had disappeared and could not be traced. It was probable that he had given one or more police statements but these had never been made available. P.C. Lewis Fulton was now deceased. P.C. Shirley Marnock's evidence was not available because the relevant tape had been lost. That left Alan Gillon and Brian Morrison. In his evidence in chief Gillon, a 25 year old trainee funeral director, said that he was sitting in his parked car in a lane opposite the locus (North Court Lane, which runs south off St. Vincent Place in the centre of Glasgow). He said he saw what he described as a bundle on the pavement (apparently the deceased) and two people near it. One of them was a person with black hair, wearing a black leather jacket, denims and very white training shoes. Shortly thereafter he said he saw this person run out of North Court Lane into St. Vincent Place, turn left and head (in a westerly direction) along St. Vincent Place towards Buchanan Street. He then lost sight of him. He identified the appellant as that person. He had previously (about a week after the incident) identified him at an identification parade. He was cross-examined as to the reliability of that identification having regard to where he was in relation to what he said he saw, the state of the street lighting at the time (it was about 10.45 p.m., he said), the nature and quality of the view he had of the person's face and the degree of attention he was paying but insisted he was not mistaken in his identification of the appellant. He had accepted in his examination in chief that he had on 15 April given the police a statement as to what he had seen on the night in question but that statement was not a production and he was not cross-examined on its contents.

[15 ] Brian Morrison was 19 at the time. He said he was a male nurse. He said he was in the vicinity of the locus between 11 and 11.30 p.m. on the evening in question. As he was walking along St. Vincent Place (in a westerly direction) from George Square towards Buchanan Street he looked down the lane (apparently North Court Lane) and saw what he described as "an old guy ... about 50" and "two young boys ... between 20 and 25". He thought that the last two were the same height, about 5 feet 10 inches. He thought that they both had dark leather jackets on. He thought they were wearing training shoes but could not remember anything about the colour of them. He said that about 5 or 10 minutes later he saw two males run from the direction of the lane to the public toilets about 100 metres or so to the west in St. Vincent Place. He thought it was the same two young men he had seen earlier. He then saw them come out of the toilets and go back quite fast in the direction of North Court Lane. He identified them as the appellant and McLeod, who by this time was sitting in the public benches in the court. His identification was challenged in cross-examination generally in the same way as Gillon's identification of the appellant had been. He said he got a good look at the two young men. He studied their faces carefully, so that if he had seen them at any time between the incident and the trial he would have been able to recognise them without difficulty. It was then pointed out to him that at the identification parade a week after the incident he had not picked out the appellant, although he was there. He had picked out a stand-in instead. He gave no explanation for this. That passage in his cross-examination marks the end of the transcript of Morrison's evidence but it is not certain that that was the end of it. There is no note to that effect in the transcript and the court minutes do not assist, but it is stated in the transcript that the notebook containing the evidence of the succeeding witnesses, including P.Cs Lewis Fulton and Shirley Marnock, is missing. It may be, therefore, that that notebook also contained the last part of Morrison's evidence.

[16 ] Against this background counsel turned to the police statements of these witnesses that are now available. There were two statements from Gillon, the first dated 14 April 1989 and the second 9 May 1989. In the first statement, in describing the person said to be the appellant Gillon said his height was 5 feet 6 inches or 5 feet 7 inches, later corrected to 5 feet 8 inches or so. In the report of the identification parade held on 18 April 1989, however, the appellant is described as 6 feet 0 inches - 6 feet 1 inch tall. In his second statement Gillon referred to his previous statement and continued:-

"However, there are a number of things which I did not tell you about in my earlier statement because I was terrified. I would now like to tell the truth, not that I have lied to you previously, I just didn't tell you everything but it has been playing on my mind especially when the guy died."

He then went on to give an account of events not very different from what he said in evidence.

[17 ] Morrison had given four police statements. The first was given early on 12 April 1989, just an hour or so after the event which is the subject of the charge. Counsel said that it was common ground that much of what was in the statement was some kind of fantasy. Morrison had said in evidence that he was in occupation as a male nurse. Now he said he was homeless. He said that one of the two young men who ran out of the lane had shouted at him: "Morrison ... if anything happens or if you see anything going on don't open your mouth or else you're gonna die.". He said that they then pushed him to the ground and told him to go away and they ran back into the lane. He described the two men as being 5 feet 10 inches tall. He definitely knew the one who had mentioned his name but he couldn't remember where from. He then remembered that he might have been called Ian and he went on to say certain things he claimed to know about him. He said he would definitely be able to identify the two men again.

[18 ] Later on 12 April, at 3 p.m., he gave the police a second statement. In that statement he gave an account of how he knew the man he called Ian and of his dealings with him and he stated that Ian was one of the two young men involved in the incident at the locus the previous evening. His account of what Ian did at that time was the same that he had given earlier.

[19 ] On 21 April 1989 he gave the police another statement. In that statement he said:

"I have come up here to sort out the matter and I have to tell you that a lot of what I have already told the police is not the truth and I made up some of it to attract attention to myself. I'm sorry for all the trouble I've caused. I know I've done wrong but I cannot go on like this pretending I saw things which didn't happen. I have done things like this before to attract attention to myself, and once I started it I carried on because I thought I would go to jail and I don't want that. I did come into the town that night and I did hear the shout in the lane. I did see the old guy and the two men I described before but I made up the bit that one of them threatened me and said my name. Once the police started to interview me I had to come up with a name and I said it was the guy Ian who I later picked out by photograph. I said it was him because of all the trouble he has caused me and I knew he always did the poofs up at the toilets. I kept up the pretence to avoid getting into trouble with the police. I did see two people going into the toilet but I don't know if it was the same two men in the lane. The person I picked out at the parade I thought I knew him but I'm not sure. I really am sorry for telling lies and wasting your time. I cannot tell you any more."

[20 ] Counsel submitted that with this information counsel at the trial could have cross-examined Morrison in such a way as to show that the jury could not trust a word he said. He had been so unsatisfactory that on 2 June 1989 the police had interviewed him on tape under caution. That was his fourth statement. The picture of him presented by the Crown in evidence was dramatically different in the light of what was in these statements. Counsel also reminded us of Morrison's demeanour when he gave evidence in this Court in May 2004 in connection with the first ground of appeal. Faced with any difficult question he had burst into tears.

[21 ] Counsel also pointed out that attached to his Crown precognition for the trial was a note in the following terms:

"When Morrison was first cited to attend for precognition he phoned to say he had signed himself into Leverndale Hospital but that he still intended to attend. However before the date for precognition the Hospital staff phoned to tell me that Morrison had signed himself out and needless to say he didn't turn up for precognition. As a result I had to ask the police to trace him. I warned him about failure to attend to (sic) Court.

The medical staff at Leverndale Hospital are unable to give a full psychiatric report on Morrison as he was not fully examined by them. However they state that he is basically inadequate, has personality problems and has attempted suicide on a number of occasions in the past. Morrison and his vivid imagination certainly set the police off on the trail of a red herring initially."

[22 ] Counsel said that while the Crown had all this information, the defence at the trial had none of it. Morrison had been a key witness at the trial.

[23 ] In relation to P.C. Shirley Marnock, the transcript of her evidence was not available because the tape had been lost. In his closing speech to the jury, however, the Advocate depute had reminded the jury that the account given by her and P.C. Fulton was that they passed two youths in Gordon Street who were heading west (away from Buchanan Street) about 150-200 yards from the corner of St. Vincent Place and Buchanan Street shortly after the incident in question took place. P.C. Marnock said they looked uneasy. She attended an identification parade on 28 April, when she picked out the appellant. Counsel accepted that even if her (undated) police statement had been available to the defence at the trial she would not have retracted her identification of the appellant but she did give a wrong estimate of the height of the two men she said she saw - 5 feet 10 inches/11 inches for one (apparently the appellant) and 5 feet 8 inches for the other. She also thought that the second suspect was possibly another person with whom she had had dealings rather than McLeod. These were matters that could have been taken up in cross-examination.

[24 ] Counsel submitted that it could not be said that the above-mentioned material was not material which should have been made available by the Crown to the defence as tending to undermine the credibility and reliability of the identification evidence of the appellant.

[25 ] In reply the Advocate depute accepted that the Crown was under a duty to disclose information which supported any known stateable defence or undermined the Crown case. The duty of disclosure existed prior to the trial in relation to an indicated line of defence and also to such evidence as might exculpate the accused or in the mind of the jury cast a reasonable doubt on the Crown case. Further, the duty of disclosure was a continuing one which existed pre-trial and throughout the leading of evidence by the Crown. If, in the course of leading evidence, it became apparent that the Crown had information which might exculpate the accused or undermine the Crown case, then the Crown had a duty to disclose that to the defence. See Kidd v H.M. Advocate, supra, at paragraph 15.

[26 ] In relation to the three witnesses whose police statements the defence said should have been disclosed the Advocate depute submitted that there was no duty on the Crown to disclose the statements of Gillon and P.C. Marnock. That was because, viewed objectively as matters now stood, in neither case would disclosure of the statements have been material to the defence case. No miscarriage of justice had therefore resulted from the failure to disclose their statements. In relation to Gillon the defence had highlighted the discrepancy between the estimated height of the person said to be the appellant in the statement given on 14 April 1989 and the appellant's actual height as being of importance in the question of identification. But in his statement Gillon said that the person who was the appellant was in the vicinity of the locus at the material time, he saw what he described as the bundle on the pavement, which by inference was the deceased, and described two people beside the bundle, one of whom, the appellant, he identified a week later at an identification parade. In his second statement, dated 9 May 1989, he described in greater detail what he saw but it was not essentially different from the first statement and Gillon was positive that the person he had identified at the parade (the appellant) was the one of the two assailants who was wearing white shoes. The scope for cross-examination of Gillon on the basis of this statement was therefore limited. In the course of his evidence in the trial he was robustly challenged in relation to his identification of the appellant as the man with the white shoes standing beside the bundle. The height of the appellant played no part in his identification of him. According to his first statement he had also identified him from a photograph and at the identification parade he had identified the appellant at the first time of asking. There was therefore nothing lost to the defence, and in particular nothing in relation to his identification of the appellant, as a result of their not having had Gillon's two police statements. It might even have enhanced his credibility if the statements had been before the Court at the trial. Reference was made to Kelly v H.M. Advocate 2006 SCCR 9 at paragraph 33. It was to be noted that, apart from his identification evidence, Gillon's evidence in other respects of the incident was confirmed by other witnesses. In any event Gillon's evidence was but one strand in a circumstantial case. He was an important witness but without his evidence the Crown case would not have collapsed. This was different from the situation in the cases of Kidd, supra, Holland v H.M. Advocate 2005 SCCR 417 and Sinclair v H.M. Advocate 2005 SCCR 446.