APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Macfadyen
Lord Kingarth
Lady Cosgrove
|
[2006]
HCJAC 68
Appeal No: XC702/05
OPINION OF THE COURT
delivered by LADY COSGROVE
in
THE REFERENCE BY THE SCOTTISH
CRIMINAL CASES REVIEW COMMISSION
in the case of
RONALD NEESON
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Appellant: Party
Respondent: A. Mackay, A.D.; Crown Agent
13 September 2006
Introduction
[1] This is a
reference by the Scottish Criminal Cases Review Commission ("the Commission")
in relation to the conviction of the appellant at Glasgow High Court on 17
March 1983. The charges to which this reference relates
were in the following terms:
"(4) on
7 October 1982 you WILLIAM PORTER ELLIOT, ALEXANDER BELL HOWAT and RONALD
NEESON did enter the flat at 2 up (right) 30 Clouston Street, Glasgow with
faces masked and there
(a) assault
Avril Campbell or McGill or Sutherland or Rado ... push her and repeatedly strike
her on the head with a wooden baton or similar instrument to her injury;
(b) assault Geoffrey James McLean ... and repeatedly strike him on
the head, arms and body with a wooden baton or similar instrument to his
injury; and
(c) assault
Robert Kane ... knock him to the ground; repeatedly strike him on the head with a
wooden baton or similar instrument and repeatedly stab him on the head, body
and legs with a knife or similar instrument and you did murder him, and you
WILLIAM PORTER ELLIOT did previously evince malice and ill-will towards said
Robert Kane."
The appellant and William Elliot were convicted on all three
heads. Alexander Howat was acquitted.
The evidence against
the appellant
[2] The assaults
and murder of which the appellant was convicted were committed at an address in
Clouston
Street, Glasgow on 7 October
1982. So far as the evidence led at the trial is
concerned, it is sufficient for present purposes to narrate that neither of the
two surviving victims, nor any of the three bystanders who saw three men enter
the close at about the time, was able to identify the appellant as one of the
assailants. The Crown case against the
appellant depended upon the evidence of two witnesses. The first was Gerald Sharpe who identified
the appellant as one of three men he saw emerge from a
car in nearby Kelbourne Street at about the time of the attacks. A
short time later he saw the same three men return to their car and drive off at
speed. The second witness was John
Elliot, the brother of the co-accused William Elliot. John Elliot said that he had been in the
company of the appellant four days after the murder. In the course of a conversation with him, the
appellant described the events in the flat in circumstantial detail. He admitted that he had stabbed the deceased
twice in the "backside" and said that in the course of the attack two other
people in the flat had been "battered".
He said that the appellant told him that he was expecting a woman to
provide him with an alibi for the night of the murder. The defence suggested that John Elliot gave
false evidence in return for immunity from prosecution on certain charges,
including drugs and firearms charges.
[3] The appellant
and William Elliot each lodged a special defence of alibi to the effect that at
the relevant time they were at a hotel in Glasgow.
The appellant did not give evidence and no evidence was led in support
of his alibi.
The appeal
[4] The appellant
appealed against conviction on the ground that there was no sufficient evidence
of identification. The appeal was
refused on the basis of the evidential principle established in Muldoon v Herron (1970) JC 30; (cf. Neeson v H.M. Advocate,
1984 S.C.C.R. 72). A petition to the
Secretary of State for Scotland in 1995, alleging a miscarriage of
justice on the basis of new evidence, was also refused.
The reference
[5] The
Commission considered a number of reasons put forward by the appellant for
review of his conviction. It has
concluded that the case should be referred to us on only one ground, namely
that the evidence of three new witnesses, William Gronan, Alexander Hardie and
James Coyle is new evidence that was not available at the time of the trial and
that there is a reasonable explanation why it was not available. The Commission is persuaded that if this
evidence had been available, it could have been material to the credibility and
reliability of John Elliot. If John
Elliot had denied making the statements attributed to him by these witnesses,
it would have been open to the appellant's counsel to lead those witnesses to
establish the contrary position. The
Commission concludes that since the credibility and reliability of John Elliot
was a central issue, this new evidence may be considered significant, and that
the jury's verdict, reached in the absence of it, may have resulted in a
miscarriage of justice.
The appeal hearing on 17 May 2005
[6] At an appeal
hearing on 17 May 2005 before this court, differently
constituted, the appellant, in addition to his adoption of the ground of
referral, argued three additional grounds of appeal, each of which was rejected
by the court. At paragraphs [14] and
[15] of the Opinion of the Court delivered by the Lord Justice Clerk, the court
reached the following conclusions:
"We accept the Commission's view that
the affidavits of the witnesses Gronan, Hardie and Coyle constitute new
evidence and that there is a reasonable explanation why that evidence was not
available at the trial. We agree that if
that evidence had been led, it could have cast serious doubt on the credibility
and reliability of John Elliot, and therefore on the Crown case. It is possible that this new evidence might
be found to have such significance that a verdict reached in ignorance of it
could be held to have constituted a miscarriage of justice.
In view of that possibility, we have
decided to allow the appellant the opportunity to adduce evidence on this short
and specific point. We understand that
Gronan and Hardie are available to give evidence. Coyle is dead; but his affidavit will be available
to the appellant for what it is worth (cf Gray
and O'Rourke v HM Adv, unreported, 23 December 2004).
The Crown too will be entitled to lead evidence on the matter, if so
advised."
The additional evidence
[7] In the event,
evidence was led on behalf of the appellant only from the witness William
Gronan, Alexander Hardie having died on 13 April 2005.
The affidavits of both of the deceased witnesses, Alexander Hardie and
James Coyle, were before us and it is convenient to set out the terms of these
affidavits at this stage.
[8] The affidavit
of Alexander Hardie was made at Glasgow on 17
February 1993. It is in the following terms:
"1. I
am Andrew (sic) Hardie residing at 18 Windsor Street Glasgow.
2. It
would be about ten years ago now that I was in what was then known as Cameron's
Bar in Carnarvon Street, Glasgow.
I remember it was a weekday and the weather that day was good. I know a William Groonan, a scaffolder. Mr. Groonan went into the pub just before I
did. In the pub there was also John Elliott
whom I knew.
3. I
observed that John Elliott was in what appeared to be a state of nerves and
anxiety. He was rubbing his hands. He appeared to be perturbed and agitated and
he was always going to the phone in the pub.
He eventually said that he had done 'a bad thing'. I simply asked him what is
it that you have done then or words to this effect and his reply was
that he had to 'frame wee Ronnie.' He
went on to say that he'd made an arse of it or words to that effect and said
that he was facing a lot of years so it had to be one or the other but he
further stated he was going to sort things out and go and see Mr. Beltrami, Solicitor,
and put the record right.
4. John
Neeson, a brother of Ronald Neeson, (and I know both of them) arrived at the public
house. He, John Neeson appeared to be
aware that Mr. John Elliott was intending to go to Beltrami's and what the
reason for this was. I understood they
were going in a taxi cab and John Neeson and John Elliott left together. John Elliott said he would be back, he was
going to sell a car and he would have a right good drink with us. However, John Elliott did not return. I waited about 30 minutes or so and then left
and went home for my meal. Before John
Neeson and John Elliott left they were checking the Yellow Pages thing
obviously looking for an address. I
assumed that this was to check the lawyer's address.
5. It
was some months after this that I was aware that there had been taking place a
Trial of Ronald Neeson and John Elliott's brother. However I did not go to the police or any
lawyer about the case, as I did not want to get involved. I was somewhat scared of John Elliott.
6. About
ten days before the occasion above-mentioned I met John Elliott in Prison. I was on Petition at the time and I
understood so was he. I was released and
then obviously he had been released as well.
My Solicitor at the time was Desmond Queen but the late Michael Hughes, Solicitor appeared for me at the Court. I wasn't proceeded against but neither did I
get a letter or any form of communication that I would hear nothing more about
it. I do not know whether any deal was
done between the authorities and John Elliott or not."
[9] The affidavit
of James Charles Coyle was made at Glasgow on 21
February 1993. So far as relevant for present purposes, it is
in the following terms:
"1. I
am James Charles Coyle residing at 65 Kempthorne Road, Pollok, Glasgow.
2. I
know John Neeson and I also know Ronald Neeson but I would say that they are
more acquaintances than anything else.
Sometimes I used to be called out in connection with my employment
driving a taxi to the Neeson householder so I got to know them but I really
know Joe better. I used to drink with
him when I was young.
3. I
remember that at the time the events occurred which I
am now speaking to Ronald Neeson was in custody waiting trial. I got a call from John Neeson to go to his
house and to run him to a pub in the Charing Cross area called Camerons so he indicated
he was going to meet somebody there and I drove him. It was around 5 p.m. and he left me outside in the cab
waiting on him while he went in. Very
speedily, a matter of a minute or so, he came out with this fellow John
Elliot. John Elliot sat in the front
seat and John Neeson in the back seat John asked him, Elliot, what street
his, Elliot's lawyer was in and he Elliot could not remember but said that
someone in the Pub would know so John Neeson went back into the pub and was
gone about two minutes before he returned.
John Elliot started telling me things.
He said that what he had done had caused the Neeson's a lot of
grief. He said he had even put his own
brother in and his only excuse was putting it down to was to drugs. I said wait a minute I am only a taxi driver
I don't want to know this sort of thing but he went on and said 'I am taking
John to my lawyer I am going to retract whatever statements I have given
against Ronnie.' John Neeson came back
out the pub and I was told where to go I think it was somewhere in Bath Street
I can't remember really and I don't know if I dropped them off right at the
office in question or whether they walked a bit away from the pub but I just
drove off in my cab at the time. I can't
remember if John Neeson was in custody after this but I know he was going to
trial. Whether he got bail or not I
cannot say, I gave a statement at that time for his defence case but the case
did not proceed and although I went to Court as a witness for him I was not
called."
William Gronan
(a) The affidavit and precognition on oath
[10] The Commission
had William Gronan precognosced on oath on 20 February 2002 due to his initial reluctance to
co-operate with the Commission. A copy
of the affidavit he made on 30 January 1996 and a transcript of the precognition
on oath were both before us. The
affidavit is in the following terms:
"1. I
am William Gronan. I am 49 years of
age. I used to reside at 10 Killoch Avenue, Paisley but now reside at care of Crichton, 14 Belltrees Crescent, Paisley where I live with Janet Crichton.
2. I
am not related to Ronnie Neeson. At the
material time I did not know him but I had heard of his brother John
Neeson. I have a friend Alexander Hardie
and at the material time Alexander Hardie and I lived in the same close in Carnarveron Street, St. George's Cross, Glasgow.
3. On
the day in question, which was a short time before the Trial of Ronald Neeson I
was working on a Hostel doing some repair work.
I went to Hardie's house and asked him to come out with me for a
drink. We went to a bar known as Cameron's
Bar, now known as the Carnarveron Bar in St. George's Road, Glasgow.
I had a couple of pints when John Elliot, whose nickname is 'The Gimp' came in. I had
met him in the past. He was on his own
at that time. There was some general
conversation but he did appear agitated.
He was back and forward to the phone.
I asked him what was wrong. He
said he had fitted Ronnie Neeson up and that he had done a deal with the heavy
mob. These were his words. I knew that he was referring to the Serious
Crime Squad. He said that he had been in
dead trouble. He said he was looking at
double figures. He didn't however
specify what the trouble was. He said he
was waiting on John Neeson. I wanted to
go away at that stage but Hardie said he knew John Neeson and just to wait, so
we stayed on. He, John Elliot, was still
back and forward to the telephone. About
45 minutes later I was aware that John Neeson came into the Public House. I was aware then that John Neeson and John
Elliot were intending to go to the offices of Mr. Beltrami, Solicitor. Elliot said he would be back later. He said he was going to sell a car, he would have money and buy us all a drink. He and John Neeson then left. A few days later I went to London.
This was a previous arrangement that I had made and had nothing to do
with what I had heard. I worked in London and occasionally came back and forth
to Paisley.
I returned to live in Paisley about 1992 or 1993. I
have kept in touch with Alex Hardie through the years.
4. I
have previous convictions the last being in the early 1970s. I have had 4 years imprisonment with assault
and also at other times I have had 3 to 18 months sentences."
[11] In the course
of his precognition on oath, Mr. Gronan gave an account of meeting John Elliot
at Cameron's Bar. When asked how he came
to be at that bar, he said he was working on the renovation of a building in
the same street and Alex Hardie, who was a friend, approached him and told him
that John Elliot and John Neeson were in Cameron's bar and suggested that they
go and see them. Both John Elliot and
John Neeson were already there when he and Alexander Hardie arrived. He went on to state that he subsequently
received threats in connection with what he had been told by John Elliot. The first of these threats came about three
to four weeks after the conversation when three or four men came to his
door. One of them hit him with a machete
on the fingers of his right hand, and he was told to "stay out of it". The machete went through all his fingers. He took the threat seriously and moved away
from the area. When asked why he had not
mentioned the machete attack in his affidavit, he indicated he did not want the
police to hear about it.
(b) The evidence
[12] In his
evidence before us, Mr. Gronan, questioned by the appellant, spoke of a meeting
with John Elliot in Cameron's Bar. He
was not able to say when the meeting took place other than it was "a lot of
years ago". He said John Elliot told him
he had done a wrong thing and had put the appellant and his own brother
(William Elliot) in for a murder. According
to the witness, no prompting was required and John Elliot just came out with
the information. In response to a
question from the court, the witness said that on the day in question, he was
working on a building when Alex Hardie spoke to him and asked him to come to
Cameron's Bar because "the Gimp" (John Elliot) wanted to see him and he was "a
wee bit wary" of meeting him alone. When
they arrived at Cameron's Bar, John Elliot was already there, and he was
alone. The witness described John Elliot
as being "kind of agitated". He
indicated that he wanted to speak to Alex Hardie alone but the latter refused
and said that he should speak in front of Willie (the witness). It was then that he said he (Elliot) had done
a rotten thing and had stuck his brother and Ronnie Neeson in for the
murder. He also said that he was waiting
for John Neeson, the appellant's brother, to come and take him to the office of
Mr. Beltrami, solicitor, to confess what he had done. The three of them were sitting drinking
together and John Elliot told them that he had been in a bar in Glasgow when he was arrested by police
officers who had found a gun in his car which was parked outside. According to the witness, Elliot said that he
had stuck Ronnie and his brother in for the murder case to get himself out of
the firearms charge.
[13] Cross-examined
by the Advocate depute, Mr. Gronan accepted that the first occasion on which he
told anyone in authority about the conversation with John Elliot was when he
went to see the solicitor, Mr. Gibson, and gave the affidavit dated 30 January
1996. His explanation for the delay was
that he left town not long after the incident.
There was a lot of talk about the trial and he heard threats, so he
decided to go away. He went to London and was there on and off over a
period of ten years. It was the next
time he was back that he heard that the appellant and William Elliot were
serving life sentences for murder.
[14] The witness's
attention was directed to passages in his affidavit and in his precognition on
oath which were in conflict with his evidence.
His response was that his recollection of the incident now was exactly
as he had described it in his evidence.
In particular, he asserted that he was certain that John Elliot was
already in Cameron's Bar before he and Alex Hardie arrived since he remembers
noticing him drive into the street, park his car and walk towards the premises
while he was still working. The witness
readily agreed with the suggestion put to him that his recollection, even at
the time of making his affidavit in 1996, was affected by the passage of time.
[15] While the
court in its opinion of 17 May 2005 indicated that the Crown too would
be entitled to lead evidence on the matter, if so advised, no such evidence was
led. We were informed by the Advocate
depute that John Neeson was now deceased and that John Elliot had disappeared
and could not be traced.
Conclusions
[16] We are not persuaded that the
additional evidence in this case is of such a kind and quality that it is
capable of being regarded as credible and reliable by a reasonable jury and
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 (cf. Al Mehgrahi v H M Advocate 2002 SCCR 509 at para. 219).
[17] William Gronan
gave his evidence in a straightforward manner and we drew no adverse inference
as to his credibility from his demeanour as a witness. There were, however, certain problems
presented by his evidence. In the first
place, there is the very long delay in speaking to anyone in authority about
the incident. When cross examined about
this, the witness expanded on his explanation that he left town soon afterwards. He said that he disappeared completely and
cut himself off from his former life for a matter of years. We observe that this is not entirely
consistent with his evidence that it was on one of the times that he came back
to the area that he heard from Alex Hardie of the life sentences imposed on the
appellant and William Elliot. What is
clear, in any event, is that he knew of the outcome of the trial. Nevertheless, it was only when he heard that
John Neeson's solicitor was looking for him that he went to see him and made
his affidavit. More than 13 years had by
then elapsed. That delay in the face of
his knowledge that the appellant was serving a life sentence is of obvious
significance in relation to a consideration of the general credibility of his
evidence.
[18] It is also
clear, on his own admission, that the witness's recollection of the incident
was affected by the passage of time, even by the date of the affidavit. In this connection, we note that in his
evidence he said he was approached on the day in question by Alex Hardie who
asked him to accompany him to Cameron's Bar for the specific purpose of being
present when he met John Elliot, and that John Elliot was already there when they
arrived. On the other hand, in his
affidavit, the witness says that he went to Hardie's house and asked him to
come out for a drink with him, and that it was only after they had had a couple
of pints that John Elliot arrived. A
different version occurs in the witness's precognition on oath taken in
February 2002. There, he says that
Hardie approached him at work and told him that both John Elliot and John
Neeson were in Cameron's Bar, and that both men were present when he and Hardie
arrived there. We also note that, prior
to giving evidence before us, the witness had never
previously mentioned that he was asked by Alex Hardie to go with him for the
specific purpose of being present when he spoke to John Elliot.
[19] These are
differences of detail. Of greater
significance, in our view, is the fact that when questioned about his delay in
coming forward, the witness stated that although people told him to watch out
and stay away from John Elliot, no personal threats were made to him. When his attention was drawn to the passage
in his precognition on oath describing an incident involving a machete, the
witness said that his hands were all damaged in that attack. His failure to mention it in evidence was
because he "just forgot". That
explanation, given the nature of the alleged incident, and viewed in the context
of his other efforts, as noted above, to explain his delay, was less than
convincing.
[20] In assessing
the likely significance of William Gronan's evidence, we note that his
description of what John Elliot said was that he stuck the appellant and his
brother, William Elliot, in for the murder charge. The witness did not make any clear assertion
in evidence, or in his affidavit or precognition on oath, that what Elliot
regretted was the untruth of the
statement he made, as distinct from the fact of having made it. The language used by him throughout was
capable of bearing the interpretation that what John Elliot regretted was not
that he told lies to the police but rather that he "grassed" on the appellant
and his brother, that is to say, provided (true) information that led to their
prosecution. Even when questioned by the
court about this, there was no spontaneous reference to the fabrication of
evidence. It was only when he was
actually presented with the two options that the witness stated that what John
Elliot regretted was blaming the two men for a murder they had not committed.
[21] Having
considered the evidence given by William Gronan, we have come to the clear
conclusion that the overall impression created by it was that it was not capable
of being regarded as credible and reliable, nor was it of such consistency and cogency
as to lead to the conclusion that in its absence a miscarriage of justice must
have occurred.
[22] The death of
Alexander Hardie and James Coyle deprived the court of the opportunity of
discovering whether these witnesses adhered to the terms of their
affidavits. It is, of course, difficult
to assess the likely import of their evidence from the bald terms of the
affidavits available to us. We note,
however, that the contents of the two affidavits do, in general terms, cohere
with each other and with the evidence we heard from William Gronan. In particular, Alexander Hardie speaks of
John Neeson and John Elliot leaving Cameron's Bar together in a taxi for the
specific purpose of going to Mr. Beltrami's office so that John Elliott can
retract his statement. James Coyle, the
taxi driver, speaks of taking the two men to the centre of Glasgow, having been told that that was
their purpose. We note that there was,
however, no evidence that John Elliot ever did see a solicitor to retract his
statement. Moreover, the Commission
records that John Elliot was cross-examined extensively at the trial by both counsel for the applicant and counsel for his co-accused as
to the credibility of his evidence. It
was put to him that he had fabricated the evidence against his brother and the
applicant in return for a guarantee of immunity from prosecution in connection
with the alleged firearms and drug dealing offences. He denied this and insisted in the truth of
his evidence implicating the appellant.
We also note in this connection that the Commission records that the
appellant advised that his brother claimed to have been informed by John
Elliot, some time after the murder but before the trial, that he was willing to
retract the statement that he had provided to the police; and that the appellant claims that he
brought this matter to the attention of his legal advisors prior to his trial
and instructed that his brother be called as a witness. The Commission also records that both the
appellant's solicitor and his counsel informed the Commission that they had no
recollection of any evidence being available at the time of the trial which
could have been led to support the proposition that John Elliot had fabricated
the evidence against the appellant.
[23] The affidavit
of Alexander Hardie is dated 17 February 1993.
It does not contain any hint of an explanation for the delay in coming
forward; and
there is no suggestion that the witness was away from the Glasgow in the period following the events he
describes. James Coyle speaks of John
Elliot having said that he had caused the Neesons a lot of grief and had even
put his brother in. His language, like
that of William Gronan, is inspecific as to the precise import of Elliot's
admission. In the absence of an
opportunity to explore such issues with the witnesses we do not consider that
we can accept the contents of their affidavits, untested and at face value, as
capable of being regarded as credible and reliable evidence of such
significance as to meet the required test.
[24] For the
foregoing reasons this appeal is refused.
