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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Eassie
Lady Paton
Lord Cullen
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[2006] HCJAC 7
Appeal No: XC125/04
OPINION OF THE COURT
delivered by LADY PATON
in
APPEAL AGAINST CONVICTION
by
WILLIAM LEWIS GAGE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Appellant: Scott, Q.C.; Beltrami
Anwar, Glasgow
Respondent: Beckett, A.D.; Crown Agent
14 March 2006
Introduction
[1] The
appellant was born on 1 March
1971. In 2002 he lived
with his partner Margaret Welsh at
an address in [B] Road, Glasgow.
[2] At
that time Justin McAlroy (then aged 30) lived with his wife Tracy at 29 Acacia
Way, Cambuslang. He was "involved in serious criminal
activities in the period leading up to his death. For many months he had been under
surveillance by the Scottish Drug Enforcement Agency, although active
surveillance was temporarily in abeyance.
He was known to have had contacts with men ... contesting extradition
proceedings relative to alleged drugs offences in Estonia. He appeared to owe £50,000 to an un-named
third party in connection with a drugs deal of some kind, and he had received
sinister warnings from an intermediary that his time for repaying that money
was running out. On the day of his
death, [Mr. McAlroy] and a friend visited serious criminals in Perth Prison
using assumed names. The precise purpose
of that visit was not satisfactorily established..." (trial
judge's report, page 2).
[3] At
about 10 p.m. on 7 March 2002, Mr. McAlroy was returning
home. As he approached 29 Acacia
Way, he was shot several times. The shots were heard by his wife and by
neighbours. They looked out and saw a
man running away. He was dressed in dark
clothing. His face was partly
covered. In a nearby street called Newton
Station Road, witnesses saw a man in dark
clothing get into the front passenger seat of a white car. The white car drove off and was last seen
heading in a direction which could lead to Easterhouse. Later that evening at about 10.30 p.m. (a
time further explained in paragraph [41] below), a white Saab car registration
number F36 WCS was found abandoned on an embankment at Balcurvie Road,
Easterhouse. An attempt had been made to
set the car alight, but the fire had gone out.
At 10.32 p.m. a
telephone call was made from a mobile phone number 07958173538 when the caller
was in the vicinity of the cell-site on Easterhouse Road, close to
junctions 8 and 9 on the M8 motorway.
[4] Mr.
McAlroy died in the early hours of 8 March 2002. A murder
inquiry began. "The general consensus of
opinion among senior police officers who gave evidence at the trial was that
this killing had the hallmarks of an execution ordered by someone in the
criminal underworld, and that the killer himself was unlikely to have been
known to the deceased" (trial judge's report, page 3).
[5] When
the abandoned white Saab car was examined, it was found to contain a pair of
gloves; a black
nylon jacket with a hood; a pair of dark
waterproof trousers; a dark grey woollen
scarf or snood; a Yazoo brand drinks
bottle; and a radio scanner, switched on
and operating at the police wavelength so that police transmissions could be
heard. The appellant's DNA was found on
the Yazoo bottle and on the jacket. No other person's DNA was found on either of
those items (with the exception of some DNA contamination on the jacket from a
forensic scientist involved in the testing procedure). The appellant's DNA was also found on the
gloves and the snood, with traces of the DNA of at least two other
individuals. Firearms discharge residue
was found on the jacket and the snood.
The residue was of the same type (although a common type) as that found
at the locus.
[6] The
appellant was interviewed by the police.
The trial judge's summary of the interview can be found in paragraph
[31] below. The appellant was ultimately
charged with murder and with an attempt to pervert the course of justice by
setting fire to the getaway car and its contents.
The trial
[7] The
appellant's trial took place in early 2004 at Glasgow High Court before Lord
Emslie and a jury. The charges against
the appellant were as follows:
"(1) On 7 March 2002 at Acacia Way, Westburn,
Cambuslang, Glasgow, you did while acting along with another or others meantime
to the prosecutor unknown, assault Justin John McAlroy, born 18 February 1972,
late of 29 Acacia Way, Westburn, Cambuslang, Glasgow and repeatedly discharge a
firearm at him and shoot him on the head and body whereby he was so severely
injured that he died on 8 March 2002 at Victoria Infirmary, Glasgow and you did
murder him.
(2) On 7 March 2002 on a piece of ground
adjacent to Balcurvie Road, Easterhouse, Glasgow, having committed the offence
libelled in charge (1) above and having been driven from Newton Station Road,
Cambuslang, Glasgow to Balcurvie Road in motor car registered number F36 WCS,
you did while acting along with another meantime to the prosecutor unknown,
pour petrol over the interior of said car and set it alight and this you did
with intent to damage or destroy said car and thereby to hinder or prevent
forensic examination by or on behalf of the police and criminal authorities of
said car and of items within, including a jacket, a pair of gloves and a snood
which you had been wearing at the time of the commission of the offence
libelled in charge (1) above and with intent to avoid detection and charge for
said offence and you did attempt to pervert the course of justice."
[8] The
appellant had lodged a Special Defence of Alibi in the following terms:
"Lovie for
the panel states that the panel pleads not guilty, and specially, and without
prejudice to the said plea, that on 7 March 2002, from 8 p.m. till 11.30 p.m.
or thereby, between which times the crimes alleged in the indictment, if committed,
were committed, he was at [a given address in Hyndland, Glasgow] and travelled from there by car to
Anniesland, Clydebank and Temple and, thereafter, to the Hogshead Public
House, Woodlands Road, Glasgow from where he returned to [the address in Hyndland] aforesaid at 11.30 p.m. or thereby; throughout said period he was constantly in
company with Ann Ross, Crown Witness 107;
and the said Ann Ross will be called to give evidence on behalf of the
panel."
[9] The
Crown duly led evidence. The defence led
several witnesses, including Crown witness number 107,
Ann Ross (aged 47). Miss Ross gave alibi
evidence on behalf of the appellant, referring in the course of her evidence to
her personal diary. The appellant did
not give evidence. The jury then heard
speeches and, on 9 February
2004, a charge.
[10] After retiring, the jury made certain requests. The transcript of the proceedings discloses
that they asked to see (i) the telephone records of incoming calls to Ann Ross
on 7 March 2002, and (ii)
a copy of Ann Ross's diary entry for 7 March 2002. The trial
judge heard submissions outwith the presence of the jury. The jury then returned to court. In relation to the first request, the judge
explained that no documentary production relating to incoming calls to Ann Ross
had been put to any witness in evidence.
The first request was therefore refused.
In relation to the second request, the judge explained that it was not
appropriate that the jury should be allowed to see that production (or any part
of that production) in isolation, there being a risk that they might
consciously or unconsciously draw inferences, conclusions, or deductions of
their own that Ann Ross was never asked about when she was in the witness box,
and which the appellant would never have had any opportunity to meet. Accordingly the second request was also
refused.
[11] After retiring and deliberating further, the jury returned
majority verdicts of guilty in respect of Charge 1, and not proven in respect
of Charge 2.
Appeal against conviction
[12] In June 2004, the appellant lodged three grounds of appeal
against conviction. The first ground was
ultimately not insisted upon.
Nevertheless it is worth noting its terms, and the trial judge's
response thereto. The first ground is as
follows:
"1. No reasonable jury having been properly
directed and charged would have returned verdicts, as the jury did, of guilty
on charge 1 on the indictment and not proven on charge 2. Said verdicts were inconsistent with each
other and with the evidence for the following reasons:
(a) in order for
the appellant to have been convicted on charge 1 it
was
necessary for the Crown to prove that the motor vehicle referred to in charge 2
was the getaway car used in the killing in charge 1, and also, that clothing
found in said vehicle at the locus in charge 2, comprising of a jacket and a
snood, were worn by the killer (transcript of trial judge's charge, page 39,
line 9 to page 41 line 16);
(b) the jury's
verdict of not proven on charge 2 indicates that the
evidential
requirements for proving that the vehicle was the getaway car and/or the
appellant was in any way connected with it or the clothing at the time of the
killing were not established and therefore the verdict in relation to charge 1
on the indictment ought to have been one of acquittal in accordance with the
directions of the trial judge (transcript page 41 line 17 to page 42, line 2)."
[13] The trial judge, at page 12 of his report, responded to the
first ground of appeal inter alia as
follows:
" ... it is not clear to me that the jury's verdicts on Charges 1
and 2 were inconsistent as alleged.
Charge 2 required proof of fire-raising, with the use of an accelerant,
and a Not Proven verdict on that charge was surely open to the jury if they
were not prepared to draw the inference, beyond reasonable doubt, that the
appellant was involved in committing the various acts libelled. After all, approximately one hour [but see
paragraph [41] below] had elapsed between the murder and the abandonment of the
vehicle, and on the evidence of Stephen Madden and Agnes Edgar the appellant
was not the only occupant of the getaway car ..."
[14] In our view, it was appropriate that the first ground of appeal
was not insisted upon. As the trial
judge pointed out in his report, "on the evidence ... the appellant was not the
only occupant of the getaway car". That
evidence entitled a jury to have a reasonable doubt whether the appellant was
involved in the acts libelled in Charge 2.
[15] The second and third grounds of appeal are as follows:
"2. That the jury's
deliberations and verdicts were manifestly flawed on account of: -
(a) their request
to have sight of documents which were never
produced in
evidence nor spoken to by any witness (transcript page 62, lines 8 to 10) thus
indicating a complete failure to comprehend the significance of evidence
adduced by the Crown in relation to calls allegedly made from a mobile
telephone by the appellant and in respect of which the Crown sought to
establish the involvement of the appellant in connection with both charges on
the indictment;
(b) their request
to view the entry, or photocopy thereof, in the
diary which
formed Defence Production 13 and about which Crown witness 107, Ann Ross, had
already given evidence (transcript page 62, lines 10 to 13), there having been
no challenge by the Crown as to the existence of said entry, the only issue for
the jury to decide upon being whether or not the evidence of the witness in
support of the special defence of alibi was acceptable or not in accordance
with the directions of the trial judge (transcript page 49, line 24 to page 51,
line 15).
3. Notwithstanding the decision of the
trial judge to refuse the requests of the jury referred to in 2 above and his
stated reasons for so doing (transcript page 62, line 14 to page 64, line 12),
the requests made disclosed an intention on the part of the jury to go beyond
the evidence adduced in the course of the trial and conduct their own
investigations into the circumstances of the case, contrary to the directions
of the trial judge, (transcript page 8, line 24, to page 9, line 12)."
[16] On 27 July
2005, a fourth ground of appeal was lodged, as follows:
"4. In terms of section 106(3)(b) of the
Criminal Procedure (Scotland) Act 1995 no reasonable jury having been properly
directed and charged could have been satisfied beyond a reasonable doubt that
the appellant murdered the deceased in view of:
(i)
the very unsatisfactory quality of the identification
evidence led by the Crown;
(ii)
the
contradictions and inconsistencies in the identification evidence."
[17] The appeal was heard on Friday 21 October 2005.
Transcripts of the evidence of the following witnesses were provided and
referred to: Tracy McAlroy (aged
28); Phyllis Craig (aged 43); Julie Waugh (aged 30); Stephen Madden (aged 40); Agnes Edgar (aged 17); Charles Bowman (aged 27); and Ann Ross (aged 47). Transcripts of the jury speeches and the
judge's charge were also provided.
Copies of the following productions were provided and referred to: photographs of Acacia Way, production number
5; photograph A in production number 8,
being a photograph of a police mannequin wearing the clothing discovered in the
abandoned car; a DNA report production
number 25; and a firearms discharge
residue (FDR) report production number 27.
[18] Mr. Keegan, solicitor-advocate for the appellant, indicated
that the first ground of appeal was not insisted upon. Further, while the second and third grounds
were set out as separate headings in the Note of Appeal, there was really only
one ground of appeal, namely the fourth ground, based upon section
106(3)(b). Initially Mr. Keegan referred
to the jury's requests for Ann Ross's telephone records and diary entry as
indicative of the jury embarking on a frolic of their own and departing from
the directions set out for them in the judge's charge, thus illustrative of
what a reasonable jury would not have done.
Ultimately, however, Mr. Keegan confirmed that the appeal was based
solely upon section 106(3)(b), which focused on what
verdict a reasonable jury, properly directed, could have returned (King v. Her Majesty's Advocate, 1999
J.C. 226, at pages 228G to 229A, and 229I to 230B). He confirmed that the appeal was not based
upon the unreasonable behaviour of the particular jury involved in the trial,
and also that he could not use the jury's requests to fortify the appellant's
case based on section 106(3)(b). He
agreed that the court had to assess the question raised by section 106(3)(b) objectively, examining whether, on the basis of the
evidence led, the verdict was open to a reasonable jury. He submitted that the fourth ground of appeal
could stand alone even if the other grounds proved to be irrelevant.
Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995
[19] Section 106(3)(b) of the Criminal
Procedure (Scotland) Act 1995,
as amended by section 17 of the Crime and Punishment (Scotland) Act 1997,
provides:
" ... a person may bring under review of the High Court any
alleged miscarriage of justice, which may include such a miscarriage based on -
... (b) the jury's having returned a verdict which no reasonable jury, properly
directed, could have returned."
[20] The ambit of section 106(3)(b) has
been discussed in several decisions. In King v. H.M. Advocate, 1999 J.C. 226, at
pages 228G to 229A, the court observed:
"In seeking
to formulate the appropriate test we begin with the words of section 106(3)(b). If we ask in
what circumstances there may be the kind of miscarriage of justice which the
provision covers, then it is obvious first of all that the jury will have
returned a verdict convicting the appellant, since section 106 as a whole deals
with appeals by persons who have pled guilty or been convicted by a jury. So the verdict to which section 106(3)(b) refers is a guilty verdict. The miscarriage of justice therefore arises
where the jury return a guilty verdict which no reasonable jury properly
directed could have returned. The test
is objective: the court must be able to
say that no reasonable jury could
have returned a guilty verdict on the evidence before them. Since in any case where the provision is
invoked the jury will ex hypothesi have
returned a guilty verdict, their verdict will have implied that they were
satisfied beyond reasonable doubt that the appellant was guilty. What the appellant must establish therefore
is that, on the evidence led at the trial, no reasonable jury could have been
satisfied beyond reasonable doubt that the appellant was guilty ... "
The court went on to state (at
pages 229I to 230B):
"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."
[21] In Kerr v. H.M. Advocate,
2004 S.C.C.R. 319, the court
confirmed that issues of credibility and reliability are pre-eminently for a
jury to resolve.
[22] In Harper v. H.M.
Advocate, [2005 HCJAC23] 2005 S.C.C.R. 245, the court again emphasised the limited nature of the court's
powers in terms of section 106(3)(b). The court, having referred to the approach in
King, cit. sup., observed at
paragraph [35]:
"Following
that approach, the question has to be asked 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 is 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, [2005HCJAC3] 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 [certain evidence] ... "
Further, the court stated at
paragraph [38]:
"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 ... "
[23] In the present case, as in King,
Kerr and Harper, the appeal is
based upon section 106(3)(b). Accordingly, applying the test set out in
section 106(3)(b) against the background of the
authorities noted above, we require to examine the evidence which was before
the jury. We can quash the verdict of
the jury only if we are satisfied that, on the evidence led at the trial, no
reasonable jury could have been satisfied beyond reasonable doubt that the
appellant was guilty.
Crown evidence
[24] Both the Advocate depute and Mr.
Keegan accepted that the Crown case against the appellant was a circumstantial
one. Mr. Keegan expressly accepted that
there was a sufficiency of evidence (and indeed no submission had been made to
the trial judge that there was no case to answer). Mr. Keegan naturally accepted that issues of
credibility and reliability, and decisions relating to what evidence to accept
and what to reject, were matters for the jury.
What follows is an outline of some of the evidence which the Crown
placed before the jury, which was rehearsed to some extent during the
appeal. In his submissions, the Advocate
depute presented an outline of the evidence in two main chapters. We found that helpful, and adopt the same
course.
1. The first chapter of
evidence
Undisputed
evidence
[25] At this stage, we adopt the Advocate depute's uncontested
analysis of what he described as undisputed evidence available to the jury
which, if they chose to accept it, supported nine factual propositions:
1.
The deceased was a man with contacts and enemies in
the criminal world.
2.
At about 10 p.m. on 7 March 2002, he was shot and fatally
injured in the street close to his home at 29 Acacia
Way, Cambuslang. He died in the early hours of 8 March 2002.
3.
The killer discharged six shots from a handgun. Five struck the deceased in the arm, leg,
chest, and head.
4.
The killer's facial features were partially obscured
by a scarf, hood or some other garment.
He was otherwise wearing dark clothing, which included a jacket.
5.
The killer left Acacia
Way on foot, and ran along a pathway
to Newton Station Road where he
entered the passenger seat of a waiting white getaway car in which there was
already a driver. The car drove off in
the direction of the M73/M74 motorway, which could lead to Easterhouse.
6.
At 10.49 p.m. a white
Saab motor vehicle was reported to the police as having been abandoned and set alight on the embankment at Balcurvie
Road, Easterhouse. The car had been noticed (as abandoned and
apparently set on fire) at least ten minutes before the telephone call to the
police.
7.
Various items abandoned in the motor vehicle included
gloves (labels 9 and 10) found in the front passenger footwell; a black nylon cagoule or jacket with a hood (label
3), found on the rear seat behind the driver's seat; a pair of dark waterproof trousers (label 4)
found on the same seat; a dark grey
woollen scarf or snood (label 5) found on the rear seat behind the driver's
seat; a Yazoo brand drinks bottle (label
8) in the rear footwell; a radio scanner
(label 37) found on the rear seat:
the scanner was switched on, operating, and tuned to the police
wavelength, thus enabling police communications to be listened to.
8.
At 10.32 p.m. on 7 March 2002, a telephone call was made
from mobile phone number 07958173538. At
the time of the call, the caller was in the vicinity of the cell-site on Easterhouse Road, close to
junctions 8 and 9 on the M8 motorway.
9.
Between December 2001 and 7 March 2002, there were no other reports made
to the police about incidents concerning the discharge of a firearm which had
any association with a white car.
[26] When assessing the undisputed evidence, certain other evidence
was available to the jury, if they chose to accept it and take it into
account. That evidence was as
follows:
The
forensic science report relating to DNA evidence (production number 25)
[27] The report disclosed that the DNA profile from the swab taken
from the neck of the Yazoo drinks bottle matched the appellant's DNA profile to
a probability in the order of one in a billion males (pages 5, 6, and 18 of the
report). The DNA profiles from tapings
taken from the gloves and the snood matched the appellant's DNA profile to a
probability in the order of one in a billion males, subject to additional
traces of DNA from at least two unknown individuals (pages 6 and 18 of the report). A taping from the hood and inner cuffs of
the jacket revealed a DNA profile consistent with a mixture of the DNA of the
appellant and the DNA of a female forensic scientist involved in the testing
procedure (pages 6, 7 and 19 of the report).
When the profile of the scientist was subtracted, the remaining DNA
profile matched the appellant's DNA profile, to a probability in the order of
one in a billion males.
[28] In this context, the Advocate depute drew attention to an error
in the trial judge's report at page 7, where it was noted that "The DNA of two
other individuals was also found on the jacket and gloves." In fact the only relevant DNA identified on
the jacket was that of the appellant.
The report
relating to firearms discharge residue (FDR )(production
number 27)
[29] Report production number 27 recorded that percussive primer
firearm discharge residues were recovered from the jacket on which the
appellant's DNA had been identified, and the snood on which the appellant's DNA
(and traces of the DNA of two other individuals) had been identified (page 5 of
the report). Those findings indicated
that "(i) these items of clothing [had] had a close association with a gun when
discharged, and/or (ii) these items of clothing had been in contact with a
source of percussion primer firearm discharge residue, e.g. a gun that had been
discharged or a spent cartridge case" (page 6 of the report). The FDR found on the clothing was the same
type (although a common type) as that found at the locus.
The telephone
evidence
[30] Evidence was led that a telephone call from the mobile phone
number 07958173538 was made at 10.32 p.m. when the
caller was in the vicinity of the cell-site on Easterhouse Road, close to
junctions 8 and 9 on the M8 motorway. It
was agreed by Joint Minute that the mobile telephone number was registered to a
lady called Ann Finnegan, a near neighbour of the appellant's mother in
Easterhouse, who had never in fact owned or used such a phone (trial judge's
report page 9). When the phone was
examined, it was found that "(a) some 26 out of the 40 numbers called over the
period [between 1 February and 8 March 2002] matched numbers noted in filofaxes
seized by the police on a search of the house in [B]
Road, where [the appellant] lived;
and (b) 3 more belonged to individuals well-known to [the appellant]" (trial
judge's report page 9). The trial
Advocate depute's speech to the jury (transcript page 29) reveals that there
was also evidence that "both before and after the call at 10.32, calls were
being made to numbers which were in [the appellant's] diary and indeed that a
call was made an hour afterwards to Margaret Welsh, his partner." Nevertheless, as the trial judge pointed out
at page 11 of his report, "there was no direct evidence that the appellant was
the normal user of the mobile phone from which a call was made at 10.32 p.m. on
the night in question, nor was there any direct evidence to show whether he, or
someone else, had possession of the phone at the material time."
The
appellant's interview with the police
[31] The trial judge summarises the appellant's interview with the
police at page 10 of his report as follows:
"In the
course of the trial, the jury heard a tape-recording of a lengthy police
interview of the appellant following his detention on 3 May 2002. Throughout that interview, the
appellant was politely insistent that he would not answer any questions for
fear that his family and friends would then be at risk of police pressure and
harassment. As one of the interviewing
police officers agreed in cross-examination, the appellant displayed a "degree
of paranoia" on that matter. At various
points, however, the appellant positively asserted that he did not know why he
had been detained, that he had nothing to do with the death of Justin McAlroy,
and that he had not been there when the latter was killed. As regards his whereabouts at the material
time, he would only say that if it ever came to a trial he would tell the jury
where he was and who he was with. In
addition, the appellant positively affirmed inter
alia that he had no address in [B] Road;
that he owned no mobile phone;
that he bought and sold low-value second-hand cars; that the Saab found at Easterhouse had
nothing to do with him; that the gloves,
snood, jacket, trousers and drinks bottle found in that vehicle were not his
and had never been worn or handled by him;
and that he had not fired any gun, or been present when a gun was fired
by anyone else, since being in the Territorial Army some 13 years earlier. Against that background, the appellant
expressed incredulity when advised that his DNA had been found on four of the
items concerned, and firearm discharge residues on two of them."
2. The second chapter of
evidence
[32] Further evidence was available to the jury, if they chose to
accept it, as outlined below:
The
evidence of Tracy McAlroy
[33] A transcript of the evidence of Tracy McAlroy was available at
the appeal hearing. Passages in
examination-in-chief were referred to, particularly pages 11 to 12, 14 to 16,
28 to 32, and 42 to 45. In essence, she
spoke of hearing noises like a car backfiring, opening her front door and
looking out, and seeing a man under the street lamp at the end of her driveway
(shown in photographs production number 5), running away. He was wearing dark coloured clothing, which had a "sheen". He had
a hood, and only part of his face, from the forehead to the nose, was
visible. He was running with one hand in
his pocket. He looked at her when the
door opened. At one stage during her
evidence-in-chief, she pointed to the appellant as having eyes resembling those
of the man running away, adding that she was "not a hundred per cent
sure". The eyes of the man running away
were "scary eyes" which she would never forget.
In May 2002, some weeks after having given statements to the police
about the clothing the man was wearing, she had been taken into a room in a
police station and shown a mannequin or tailor's dummy dressed in the clothing
found in the abandoned white Saab (as shown in photograph A of production
number 8). She recognised the clothing
as the clothing worn by the man running away under the street light. The man was of medium build, slim, and medium
to tall in height.
[34] In cross-examination at page 85 et seq., Mrs. McAlroy was referred to her police statements. It was put to her that her evidence in court
differed in several respects from what she had told the police. She had told the police that she had looked
through the glass of the front door. In
response, Mrs. McAlroy maintained that she had opened the front door (pages 84
to 85, 91 to 92). At page 86, Mrs.
McAlroy was asked about her identification of the clothing and the jacket,
under reference to a police statement.
She was asked about the description which she had previously given to
the police of "a padded jacket ... with a large bulky hood like an anorak ... waist
length, possibly longer, the hood was Eskimo-type". In a further police statement (quoted at page
94 of the transcript) she had spoken of a thick anorak type jacket, waist
length, with a pearly sheen, an Eskimo snood hood, possibly clip or stud
fastening at the neck, zip fronted. It
was not suggested to her in cross-examination that her descriptions of the
jacket were incompatible with jacket label 3, or that her view of the man had
been hindered by reflected light on a glass panel. However it was put to her that she had not
mentioned the man's eyes to the police.
[35] In re-examination, at page 103 et seq., Mrs. McAlroy confirmed, under reference to a police
statement, that she had a clear view of the running man, and that he had passed
directly under the street lamp and had been well lit.
The
evidence of neighbours
[36] Several neighbours gave evidence at the trial. Transcripts of the evidence of two neighbours
Phyllis Craig and Julie Waugh were available at the appeal hearing. Passages in Phyllis Craig's
examination-in-chief were referred to, particularly pages 112 to 115, and 127
to 138. She described hearing bangs, and
peeking out of the window. She saw a
person in a dark jacket with a hood, but not the person's face. Her recollection in court was assisted by the
description of the jacket which she had given to the police. In summary, she described the jacket as
similar to a pullover jacket which her daughter wore. That sort of jacket went to the waist; it did not have a
full zip; it had a hood which was loose
(i.e. not drawn tight around the wearer's head); the hood formed part of the jacket, and was
not detachable; the jacket was not too
big or baggy; the jacket had a pocket
right across the front of the stomach, and side-pockets; it was not a waterproof jacket, it was shiny,
more of a wind-cheater. When shown
jacket label 3, Mrs. Craig confirmed that in certain respects it resembled the
jacket she had described. She also
described seeing a dark-coloured material (possibly a scarf) inside the hood
and around the person's mouth. In
re-examination, at page 157, she confirmed that label 3 was a "similar type
jacket" to that which the individual had been wearing in Acacia Way on 7 March
2002, although she had already pointed out in her evidence-in-chief (at page
137) that label 3 did not appear to have the side-pockets which her daughter's
jacket had.
[37] The neighbour Julie Waugh
had assisted a police artist to produce sketches of the individual. Reference was made to the transcript of her
evidence, particularly pages 301 to 305, and 334. In evidence-in-chief she stated that she had
looked out of her bedroom window. She
saw a figure running by the house, onto the car park. She saw him for a matter of seconds, and was
looking down on top of him. There was no
street lighting in front of her house at the time, and visibility was not very
good. She saw a dark sort of woollen tammy
on his head, with a scarf or something coming across his mouth. She described his jacket as khaki-coloured,
dark beige, almost green (page 305). In
cross-examination at pages 310 to 311, she agreed that there was some form of
security lighting at nearby show-houses, and two down-lights at the front of
her house. At page 318 et seq. while looking at the police
artist's sketches, she described the jacket as a beigey colour, with padded
shoulders (with stitching) and a raised neck, with pockets and a zip at the
front. At page 322 she stated that she
was unsure of her identification of the clothing and that she would "have to
see something and see if it sparks some sort of recognition". She was not shown jacket label 3. In re-examination at page 334 et seq. she confirmed that she had been
looking down on the man, from the side.
One drawing prepared by the police artist was coloured grey and
beige: the grey colouring had been inserted
at her instruction, because her impression had been of a darker jacket than
that shown in some of the artist's sketches.
She agreed that if the show-house lights and security lights had been
on, those lights might have changed her perception of colour.
The
evidence of witnesses in Newton Station Road
[38] Stephen Madden appeared to have been a very reluctant
witness. Much of his evidence-in-chief
consisted of his police statement being put to him for his comment. Reference was made to the transcript of his
evidence, in particular passages at pages 192, 200, 202 to 220, 222, and 225 to
226. On 7 March 2002 at about 10 p.m. Mr. Madden had been driving down Newton
Station Road, with a passenger Agnes
Edgar. He saw a white car parked further
down the road, on his left-hand side, facing towards the station. He remembered the first letter and first two
numbers as J86 or J68, and thought that it was either a Metro or a
Maestro. He could see a figure sitting
in the driver's seat. He passed the white
car, and when he was about a car-and-a-half past the white car, he saw a figure
running down the gravel path onto the pavement.
The gravel path led from the housing estate which contained Acacia
Way.
The man's face was covered by a dark or black ski mask. It had two eye-holes and a mouth-hole. The man was wearing a dark colour bubble
anorak-type jacket (bubble meaning padded).
The jacket was bluey dark navy black in colour, waist-length, with a zip
up the front. Mr. Madden did not notice
any pockets. The man had one arm folded
towards his chest. The witness then
described seeing, in his rear view mirror, the man with the ski mask in the
front passenger seat of the white car.
He could see another male in the driver's seat. Headlights from an oncoming car passed
through the witness's car and the white car behind. The witness saw the front seat passenger in
the white car pull off the ski mask. He
described the passenger as having a kind of ball (round) face, maybe a bit of a
chubby face and a rounded head, with a full head of hair which was dark black,
maybe brown. His hair appeared to be
short, but longer than a crew-cut, maybe about an inch of hair all round. The white car followed the witness's car, on
a route which the witness would have taken to go to Easterhouse. The witness described the man with the ski
mask as between 5 ft 8 and 5 ft 11, just above average build, about 12 to 13
stone in weight. Giving further detail
about the jacket, the witness described it as a dark, maybe blue, maybe black,
waist-length padded jacket, with a zip up the front. The witness could not see if the jacket had a
collar. The man was about 25 to 30 years
of age. Mr. Madden was shown jacket
label 3. When asked if it bore any
similarity to the jacket which he had seen the man wearing on the night of 7 March 2002, he replied in the negative,
although he conceded that jacket label 3 was indeed dark and waist-length. When asked if he saw the man in court, he
again replied in the negative, and did not identify the appellant. In cross-examination, at page 231 of the
transcript, he stated that he was interested in cars, and thought that the car
might have been like a Maestro, Metro type car.
In re-examination at page 233, Mr. Madden confirmed that he had thought
that the white car was a "J" registration, but he was not a hundred per cent sure.
[39] Agnes Edgar also
appeared to have been a very reluctant witness.
She adopted parts of her police statement dated 13 March 2002. Reference was made to the transcript of her
evidence, in particular passages at pages 251 to 252, 258, 260, and 266. In essence, she described seeing a person
running through the lane leading from the estate which contained Acacia
Way down to Newton
Station Road.
He was running with his arms across his chest. He was wearing a puffy jacket (puffy meaning
padded), which was waist-length and dark or black in colour. She thought it similar to a jacket she
herself wore in the witness box (described in the judge's report at page 5 as a
quilted jacket). Miss Edgar could not
tell if the jacket was fastened at the front, or whether it was a pullover
jacket. She denied telling the police
that the jacket had a hood which was up over the man's head. She denied telling the police that a woollen
tammy masked the man's face. When shown
jacket label 3, Miss Edgar agreed that label 3 was dark, but reiterated that
she had not mentioned a hood to the police.
She estimated the man's height at about 6 feet. She had told the police that she would not be
able to identify the man because he was covered up. The car was white, with a bonnet and a boot.
[40] Charles Bowman was
the third witness who gave evidence about events in Newton
Station Road.
Reference was made to the transcript of his evidence, particularly
passages at pages 350 to 351, 354, 355, 357 to 360. In summary, Mr. Bowman explained that on the
night of 7 March 2002 he had
been working as a security man on a building site near Acacia
Way.
He was in a portakabin on Newton
Station Road, near the bridge. At about 10 p.m., or just
after 10 p.m., he heard
a car screeching away, and went outside.
The car was white, and quite big.
He was unsure of the make, commenting "I'm not very good with
cars". He thought that the car had a
boot, and was maybe a Volvo type. The
police had taken him to somewhere next to Hampden to look at Volvo cars. He could only say that they were similar, not
that they were the same car, although at one stage he saw a Volvo 440 which he
thought was the type of car involved on 7 March 2002. He was then
shown another type of car at Paisley police station. That car was a white Saab (the Saab found
abandoned in Easterhouse: page 6 of the
trial judge's report). Mr. Bowman then
gave a statement that the white Saab at the police station was similar to the
car he had seen screeching away on 7 March 2002, although he could not state that it was "the
car". He confirmed that the white Saab
at the police station was similar in shape, colour, and size, with the same
number of doors, as the one he had seen on 7 March 2002. The witness
was not sure whether there had been a spoiler at the back of the white car on 7
March.
The
evidence of witnesses who discovered the abandoned car and its contents
[41] Witnesses Frank McSwiggan and Catherine Bailley discovered a
white Saab car registration number F36 WCS, abandoned on the embankment at Balcurvie
Road, Easterhouse. No transcript of their evidence was made
available at the appeal hearing.
Production number 29, a print-out of telephone calls received by the
police, was referred to at the hearing, but no copies provided for the
court. The following summary of the
evidence was provided by the Advocate depute.
The first telephone call about the car was made at 22.49 on 7 March 2002. That call was made by Catherine Bailley. However Mr. McSwiggan had seen the car earlier,
and had taken an interest in it. He then
went to Mrs. Bailley's house to persuade her to telephone the police. Mrs. Bailley gave evidence that she and Mr.
McSwiggan had a discussion, and that about ten minutes passed before she
telephoned the police. Mr. McSwiggan had
seen the car before approaching Mrs. Bailley.
Accordingly the Advocate depute contended that a jury, if they accepted
that evidence, were entitled to conclude that the car had been abandoned at
some time earlier than 22.49 hours, possibly at about 22.30 hours.
Defence evidence
[42] The evidence led by the defence included the alibi evidence of
Ann Ross, aged 47, a house sales manager employed in 2002 by Henry Boot
Homes. A transcript of her evidence was
available at the appeal hearing.
Particular reference was made to passages at pages 434 to 435, and 445
to 446. What follows is a brief outline
of some of her evidence.
[43] In examination-in-chief, Miss Ross explained that she had been
introduced to the appellant at her wedding in September 2000. She met him again at a birthday party about a
year later, when she was separated from her husband. They began a relationship, although Miss Ross
was aware that the appellant had a partner, Margaret Welsh. Miss Ross and the appellant met frequently
and went out together. Miss Ross told
the jury that she kept a diary, to which she referred in the course of her
evidence.
[44] In early May 2002, Miss Ross returned from a holiday
abroad. She learned that the police
wanted to interview her. On 7 May 2002 she attended Shettleston
police station and found herself being questioned about the appellant. She was told that he had been charged with
murder. When asked about the date 7 March 2002, she referred to her
diary. She told the officers that on 7 March 2002 the appellant had contacted
her to explain that he was not free for a future engagement, and then at about 7.30 p.m. or 8 p.m. he had collected her in his blue Mercedes car. They had driven out to Bowling, to the
Clydeside area generally, back along Great Western Road in Glasgow, out to
Temple, then to Bearsden, and then to the Hogshead pub in Woodlands Road near
Charing Cross. During their drive they
had looked at newly-built houses and blossom trees, and then they had a drink
together in the pub. The appellant
dropped Miss Ross at her home at about 11 p.m.
[45] Miss Ross stated that she had allowed the interviewing police
officers to look at her diary. After the
police interview, she gave her diary to a solicitor for safe-keeping. The diary remained with the solicitor until
lodged as a production in the trial.
[46] In cross-examination, the Advocate depute took Miss Ross
through some other entries in her diary, and also referred to entries in
production number 40, a record of outgoing calls for mobile phone number
07958173538 (which the Crown suggested to the jury was a phone used by the
appellant). The Advocate depute sought to undermine Miss Ross's credibility in
several ways. For example, he drew
attention to a diary entry which appeared to show that Miss Ross and the
appellant were together watching a film in a cinema during the evening of 15
February. Miss Ross was asked what time
the film began. She replied "It was
about eight, eightish ... eight-twentyish I think" (page 435 of the
transcript). Later in cross-examination,
the Advocate depute drew attention to an entry in the record of outgoing calls
showing a call at 20.53.31 to Miss Ross's mobile telephone number 07785741265
(page 446 of the transcript). The
Advocate depute asked Miss Ross if the appellant had
telephoned her while they were at the cinema together. Miss Ross responded that she might have been
"wrong on the time", that the appellant had perhaps telephoned her when he was
coming to pick her up, and that the film may have started at nine o'clock (page
451 of the transcript). The Advocate
depute further suggested to Miss Ross that she had not allowed police officers
to look at her diary during the interview.
That suggestion was denied.
Submissions for the appellant
[47] The appellant's contention was that no reasonable jury having
been properly directed could have been satisfied beyond reasonable doubt that
the appellant committed the murder. No
criticism was to be made of the trial judge's charge or report. Further, it was accepted that there had been
sufficient evidence to go to the jury; that it was for the appellant to
demonstrate why no reasonable jury could have returned a verdict of
guilty; and that the issue raised was
for the court to determine, on a case-by-case basis, having looked at the
evidence led. Reference was made to King v H.M. Advocate, 1999 J.C. 226,
Lord Justice-General Rodger at pages 229 to 230.
[48] The Crown had relied upon three areas of evidence: (i) identification evidence; (ii) evidence of
the clothing and Yazoo bottle found in the car, and the DNA and firearms
discharge residue derived therefrom; and (iii) evidence relating to a
mobile phone and a telephone call made at 10.32 p.m. traced to a part of the M8
motorway near Easterhouse, where the car had been abandoned.
[49] The defence had relied mainly upon a defence of alibi, spoken
to by witness Ann Ross, together with the evidence of Stephen Madden, who had
seen an individual get into a car which drove away shortly after the incident
in Acacia Way. Once in the car, the
individual had removed a mask, revealing his face. Mr. Madden had not identified the appellant
as being that individual. The defence
also maintained that the getaway car had never been identified, but coincidentally
a burned-out car was discovered in the Easterhouse area. It was submitted that there was no real link
between the car and the events in Acacia
Way.
That submission was made recognising that the car contained items with
FDR of the same type as that found at the scene of the murder. The FDR was not of a specific type, and could
have come from any firearm.
(i) Identification evidence
[50] Tracy McAlroy, the widow of the deceased, had heard noises,
looked out of her house at Acacia
Way, and seen a man leaving the
scene. He had turned round and she had
seen his eyes. When giving evidence, she
pointed to the appellant and identified him by his eyes. The defence had challenged that
identification both in cross-examination and when addressing the jury. In particular, in her many statements to the
police, Mrs. McAlroy had not mentioned eyes.
In addition, she had given a number of accounts about whether she had
actually opened her door, or whether she had looked through a glass panel of
the door. Further, in the course of
their investigations, the police had shown Mrs. McAlroy a dummy or mannequin
dressed in the clothing recovered from the abandoned car. That dummy had eyes, and in the course of
cross-examination it had been suggested to Mrs. McAlroy that she might be
recollecting the dummy's eyes.
[51] In this context, it was significant that witness Stephen Madden
had seen an individual get into a white car near Acacia
Way.
He had seen the individual pulling off a mask, revealing his face. Mr. Madden described the man as having a
round ball head and face, with short cropped hair. Mr. Madden had looked at the appellant in
court, and had not identified him as the individual whom he saw getting into
the car and pulling off the mask.
[52] Apart from her identification by eyes, Mrs. McAlroy's evidence
had been fairly general, about build, and type of clothing. Her evidence about clothing had been
contradicted by other witnesses, and by herself. For example, Mrs. McAlroy had earlier told
the police about a "padded" jacket. The
neighbour Julie Waugh had assisted the police artist to produce pictures of the
clothing she had seen, which did not look like the
clothing described by Mrs. McAlroy.
Other witnesses had given various descriptions of the jacket, including
descriptions of its being puffy and bubbly.
[53] In summary, the quality of the identification evidence was
poor. It contained contradictions and
inconsistencies. For the jury to
convict, they would have had to reject the description of the jacket as
"padded", and reject the drawing of the jacket produced by the artist with the
assistance of witness Mrs. Waugh.
(ii) The clothing and the Yazoo bottle in the abandoned car
[54] Clothing had been taken
from the abandoned car. The jacket and
trousers appeared to be waterproof clothing.
While DNA identified as the appellant's had been found on the jacket, no
DNA had been found on the driving wheel.
[55] Reference was made to the report by the trial judge where he
gave a view at page 11 that "in order to link the appellant indirectly to the
murder through the presence of his DNA, and of FDR, on items of clothing found
in the abandoned Saab, the jury would have had to accept Tracy McAlroy's
uncorroborated (and significantly contradicted) identification of the items in
question as those worn by her husband's killer." Mrs. McAlroy's original description of the
jacket to the police referred to it as "padded". The neighbour Julie Waugh had seen the killer
from a window on the first floor of her house.
She had assisted the police artist to produce drawings, and had
described a jacket with front pockets, padded about the shoulders, with a
raised collar. It was submitted that her
description and the police artist's drawings were wholly different in design, bulk,
and collar from Mrs. McAlroy's description.
Thus there was conflict in the descriptions of the clothing. In order to reach a verdict of guilty of
Charge 1, the jury would have had to reject all accounts of the killer wearing
a distinctive padded jacket (which was one of Mrs. McAlroy's earlier
descriptions). Mr. Keegan submitted that
if it was not established that the jacket found in the abandoned car was the
jacket worn by the killer, there was no link between what was found in the
abandoned car and the killer.
[56] Furthermore, there were various accounts of the size, type and
make of car seen near the killing at Acacia
Way.
The jury would have to conclude that the abandoned white Saab was indeed
the getaway car, notwithstanding contrary evidence from witnesses such as the
security guard Charles Bowman, who had given evidence that he thought that the
white car near the scene was a Volvo, possibly with a spoiler. Other witnesses had described different makes
and different shapes of car. Such discrepancies
might not matter in a case where other evidence made out a strong case against
the accused: but in the present case,
where the evidence linking the crime to the appellant was thin, such
discrepancies were important.
(iii) The
evidence relating to the telephone call at 10.32 p.m.
[57] The mobile phone with the number 07958173538 was registered to
a lady named Finnegan, who lived next door to the appellant's mother. When the phone was examined, it was found to
contain numbers which corresponded with various numbers in a filofax belonging
to the appellant. The telephone call at 10.32 p.m. on 7 March 2002 had been used by the Crown in an
attempt to show that the appellant had been near Easterhouse at that time and
date, and not in Bowling or Clydebank, as Ann
Ross stated in her evidence. As the
trial judge had pointed out in his report at page 11, there was no direct
evidence that the appellant was the normal user of the mobile phone from which
the call at 10.32 p.m. was made,
nor was there any direct evidence to show whether he, or someone else, had
possession of the phone at the material time.
Those were important matters, as there was no evidence, other than the
mobile telephone call, to contradict the evidence of Ann Ross regarding her
outing with the appellant on the evening of the murder.
Summary of
the defence position
[58] In conclusion, Mr. Keegan accepted that the Crown had made out
a circumstantial case, including the evidence of the telephone call near
Easterhouse; the
abandoned and partially-burned car; the
DNA and FDR found on items in the car;
the evidence about the killer's face being obscured, taken with the
evidence that a snood had been found in the abandoned car. He accepted that there had been a sufficiency
of evidence such that the case could go to the jury. But the appellant's submission was that the
Crown evidence had been thin and tenuous.
The DNA of two other people had been found on the jacket and the gloves,
although the major component was the appellant's. [It should be noted here that the forensic
report production number 27 reveals that only the DNA of the appellant was
found on the jacket: see paragraphs [27]
and [28] above.] On one view of the
evidence, there was no link between the jacket worn by the killer and the
jacket found in the car, apart from the evidence of Tracy McAlroy. The jury had been asked to depend upon the
evidence of Tracy McAlroy, although her evidence had been contradicted by
others and by herself.
[59] In summary, the quality of the identification evidence was
poor. It contained contradictions and
inconsistencies. For the jury to
convict, they would have had to reject the description of the jacket as
"padded"; reject
the drawing of the jacket produced by the artist with the assistance of the
witness Julie Waugh; and reject the
evidence of Ann Ross who told the jury that she was with the appellant at
places distant from the scene of the crime at the relevant time. On the evidence led, and having been properly
directed, no reasonable jury could have reached a verdict of guilty on Charge
1.
Submissions for the Crown
[60] The Advocate depute contended that the undisputed evidence
outlined in paragraph [25] above, when assessed together with the DNA evidence,
the FDR evidence, the telephone evidence and the evidence of the appellant's
police interview, all as outlined in paragraphs [27] to [31] above (i.e. the first chapter of evidence),
entitled the jury to reach at least six logically connected inferences:
1.
The jury were entitled to infer from the circumstances
of the car having been abandoned and an attempt having been made to set it on
fire, coupled with the scanner operating on the police wavelength, that the
Saab had recently been used in connection with criminal activity.
2.
The jury were entitled to infer from the facts of
abandonment and attempts to burn the car that the intention had been to destroy
any evidence which might implicate someone in that criminal activity. As the gloves, jacket, snood and trousers had
been left in the car, and were the only items of clothing left in the vehicle,
the jury were entitled to conclude that the intention was to destroy those
items, and therefore that those items had been associated with the criminal
activity.
3.
The jury were entitled to conclude from the presence
of FDR on items of clothing within the vehicle that the criminal activity with
which the vehicle had been connected involved the discharge of a firearm.
4.
Since the evidence demonstrated that (a) the gunman
had made a getaway as a passenger in a white car which drove in a direction
which could lead to Easterhouse; (b) FDR was found on clothing in the car; and (c) there were
no reports of any other shooting incidents at the relevant time, the jury were
entitled to conclude that the criminal activity with which the vehicle had been
connected was the shooting in Acacia Way.
5.
Having so concluded, the jury were entitled to infer
from the presence of the appellant's DNA on the gloves, jacket and snood, that
it was the appellant who had been the gunman in Acacia
Way.
A jury would be entitled to give weight to the fact that DNA matching
the appellant's DNA had been found on the Yazoo bottle and on items of clothing
in the car, and also to the location of the clothing - for example, the gloves
had been found in the front passenger footwell (and the gunman had been seen
getting into the front passenger seat).
The DNA evidence linked the appellant not only to the clothing, but to
the car itself. To that extent, the
Advocate depute took issue with the approach adopted by the trial judge in his
report at page 8.
6.
The jury were also entitled to conclude that the
telephone call made at 10.32 p.m. had been made by the appellant, and
accordingly that at 10.32 p.m. the appellant was in the vicinity of
Easterhouse; also that it was at about
that time that the Saab was abandoned.
That sixth inference further fortified the fifth inference, noted above.
[61] Accordingly the Crown case based on the uncontroversial
evidence assessed together with the DNA, FDR, and telephone evidence and the
evidence of the police interview (i.e. the first chapter of evidence), formed a
circumstantial case against the appellant.
[62] Guidance in relation to circumstantial evidence could be found
in Al Megrahi v. H.M. Advocate, 2002 JC 99, 2002 SCCR 509, particularly paragraphs [32] to [36]; Curley
v. H.M. Advocate, 1999 S.C.C.R. 467, at pages 468F to 469F; Maguire
v. H. M. Advocate, 2003 S.C.C.R. 758, at paragraphs [3] to [5], [8], [10]
to [11], [13], [18], [19], and [20]. In Maguire there had been less evidence
constituting a sufficiency than was available in the first chapter of evidence
in the present case. Bearing in mind the
guidance in the authorities cited, the Advocate depute submitted that the clear
circumstantial evidence to which he had referred would have been sufficient for
a jury to convict. In the light of the
authorities quoted with approval in Al
Megrahi, it could not be argued that no reasonable jury could have
convicted on the facts and circumstances identified so far. Those facts and circumstances formed the
bedrock of the Crown case.
[63] Nevertheless there were additional facts and circumstances
available to the jury, and capable of having a fortifying effect. For example:
[64] The evidence of Tracy McAlroy.
While the trial judge in his report noted that Mrs. McAlroy told the
police that she had looked through glass panels in or near her front door, and
that in such circumstances her view of events outside must have been hindered
by reflected light from the glass, it was for the jury to decide, on the whole
evidence, whether or not she had looked through a glass panel. The transcript of her evidence at pages 11 to
12, 43, 85, 91 to 92, and 103 suggested that she had opened her front door and
seen the killer passing from right to left under a street light not far from
her, and that he had looked in her direction when the door opened. The Advocate depute also referred to the
Crown junior's notes of evidence given by Mrs. McAlroy's sister Kelly, which
was to the effect that Mrs. McAlroy had indeed opened the front door.
[65] In relation to Mrs. McAlroy's identification of the appellant
by the eyes, it was accepted that Mrs. McAlroy had not mentioned eyes to the
police. That point had been put to her
in cross-examination, and would be borne in mind by the jury when assessing her
evidence. The trial had been Mrs.
McAlroy's first opportunity to assess her recollection of the eyes, for
although an identification parade had been arranged, with appropriate face-coverings,
the appellant refused to participate and the parade had to be abandoned.
[66] Turning to Mrs. McAlroy's description of, and identification
of, the killer's clothing, the trial judge was not correct at page 4 of his
report to suggest that the witness had spoken of "a padded jacket,
Eskimo-type", nor was he correct to suggest that label
3 could not be described in these terms.
The witness had described a jacket as outlined in paragraphs [33] to
[34] above, describing only the hood
as being of Eskimo-type (as indeed was the hood on jacket label 3, as shown in
photograph A of production number 8).
Furthermore, there was something at the front of the jacket shown in
photograph A which might be described as padding, but that aspect of the jacket
had not been explored in evidence. The
descriptions and details given by Mrs. McAlroy (dark in colour, with a sheen, a front zip, a hood, and waist-length) were all
consistent with what one saw in photograph A.
It was for the jury to assess whether the various words used by the
witness to describe the garment worn by the killer matched label 3, and to
assess the effect of any inconsistency between her description and
label 3.
[67] At page 4 of his report, the trial judge suggested that there
was no other evidence about the clothing of the killer which could assist the
jury. But that was to underestimate the
value and effect of evidence available to the jury, in three categories: (i) the neighbours in Acacia Way, whom the
jury were entitled to assess as respectable and credible; (ii) the witnesses who had been in
Newton Station Road, two of whom had been hostile; and (iii) the witnesses who discovered the
abandoned car and its contents. On the
basis of that evidence, the Crown had been able to demonstrate that the killer
was driven away in a white car, leaving a jacket in the car similar to and
consistent with that worn by the killer at Acacia Way. Accordingly evidence about clothing
supportive of the Crown case did not come solely from Mrs. McAlroy.
[68] The neighbour Phyllis Craig
gave evidence identifying label 3 as resembling in certain respects the garment
which the killer wore in Acacia
Way.
It was not clear why the trial judge in his report at page 5 had noted
something to the contrary. So far as the
neighbour Julie Waugh was concerned, the Advocate depute
submitted that the witness had given evidence of a view from above, in an area
with no street lighting and not very good visibility. He suggested that such a view was not "a
clear view", the terms used in the trial judge's report at page 5. In any event, while it was fair to take
account of the fact that the witness had assisted the police artist in
producing a series of sketches, and that the clothing shown in those sketches
did not match the jacket label number 3, there was no reason to assume that
Julie Waugh was more accurate or reliable than other witnesses in the
area. When assessing the evidence of the
two neighbours, it could be seen that Phyllis Craig gave evidence regarding the
assailant's clothing which was similar to that given by Mrs. McAlroy. Julie Waugh's evidence was different. It was for the jury to decide what evidence
to accept. Thus, evidence about clothing
supportive of the Crown case did not come solely from Mrs. McAlroy.
[69] As for as the evidence of the witnesses in Newton
Station Road, the Advocate depute explained
that there had been no evidence about the appellant's appearance in March 2002
(the month of the murder). However there
was evidence about what he looked like when detained in May 2002. His hair had been swept back in a pony
tail. During his trial he had worn long
shoulder-length hair. Since Stephen Madden had only seen the passenger in the
white car from a front view, someone with hair in a pony tail might look like
someone with short hair. The assessment
of the evidence of Stephen Madden and Agnes Edgar was entirely a matter for the
jury. It would not be surprising if the
jury decided to pay little or no attention to their evidence, bearing in mind
the reluctant manner in which it was given.
There was no assumption that the evidence of either would be accepted by
the jury. Their evidence was certainly
not to be treated as a bench-mark against which other evidence fell to be
tested. Turning to the evidence of Charles Bowman, the Advocate depute
submitted that Mr. Bowman's evidence vouched the proposition that the car
recovered from Easterhouse was at least similar to the one which Mr. Bowman had
seen in Newton Station Road. Contrary to
the trial judge's view at page 12 of his report, Mr. Bowman's evidence, if
accepted, was consistent with the abandoned Saab being the getaway car.
[70] In relation to the evidence about the discovery of the
abandoned car and its contents, the Advocate depute submitted that the finding
of the radio scanner operating at police frequency was an important piece of
evidence which the jury were entitled to take into account. Further, the jury were, on the evidence,
entitled to conclude that the car had been abandoned at about 10.30 p.m. (as
explained in paragraph [41] above).
There was no evidence justifying assumptions that the killer was
"intelligent and calculating" (page 12 of the trial judge's report). Although the killing was clearly pre-planned,
it was not sophisticated. Nothing about the execution of the crime, or the mode of escape,
suggested intelligence. Also it
was open to the jury to draw the inference that, far from leaving the clothing
to be examined by the authorities (as suggested at page 12 of the judge's
report), the killer's intention was to avoid their being so examined. While the burning of the car had not been
successful, presumably due to lack of oxygen, the intention had plainly been to
destroy the car and its contents.
[71] Turning to the appellant's interview with the police, the
Advocate depute pointed out that the appellant offered no explanation for the
presence of his DNA on the relevant items.
He denied having been in the vicinity of firearm discharge for a period
of many years. He denied any association
with the Saab car. He had been shown all
the clothing and the bottle, and stated that he had nothing to do with any of
those items. He gave no explanation
which would account for his DNA being found on several of the items, nor did he
give an explanation for the presence of the clothing in the car.
[72] The Advocate depute submitted that, when the evidence was
examined in the manner set out above, one could see that a body of evidence had
been available to the jury for their examination and their assessment whether a
case had been made out against the appellant.
He submitted that the body of evidence, if accepted, entitled the jury
to conclude that the killer was driven away in a white car, and had left in
that white car a jacket similar to and consistent with witnesses' descriptions
of the jacket worn by the killer in Acacia Way.
It was notable that the evidence about the jacket did not come solely
from Tracy McAlroy. Set against that
body of evidence was the alibi evidence of the defence witness Ann Ross,
supported by her diary. At the trial,
the prosecuting Advocate depute had attacked Miss
Ross's credibility as noted in paragraph [46] above. He led the evidence of police officers who
interviewed Miss Ross. They stated
(contrary to her assertions) that she had not let them see her diary when
interviewed.
[73] In conclusion, the Advocate depute submitted that the evidence
which he had identified disclosed a logical and compelling basis upon which a
jury could be satisfied of the appellant's guilt. There was the uncontested evidence,
summarised in the nine propositions in paragraph [25] above, further supported
(if the jury chose to accept it) by evidence about the DNA and FDR, the
telephone call at 10.32 p.m., and the police interview. The assessment by the trial judge of the DNA
and FDR evidence at page 8 of his report omitted to consider the effect of the
evidence about the DNA on the Yazoo
bottle. That evidence linked the
appellant not only with the clothing, but with the abandoned white Saab
car. That inference had to be assessed
together with the FDR evidence, the evidence of the telephone call, and the
evidence about the police interview. The
first chapter of evidence entitled the jury to draw the six logically connected
inferences outlined in paragraph [60] above.
In addition, further evidence was available to the jury from the
contested areas outlined in paragraphs [32] to [41] above (the second chapter
of evidence), if the jury chose to accept any of that evidence. There were a number of rational reasons for
rejecting the alibi evidence of Ann Ross, insofar as her evidence was
inconsistent with the Crown evidence.
Against that background, the Advocate depute disputed the trial judge's
view, expressed at page 12 of his report, that there were "extensive
difficulties to be overcome if [a verdict of guilty of Charge 1] was to be
reached". On the contrary, the case led
by the Crown represented an attractive and substantial circumstantial case. Clear evidence, logically linked, had the effect
of demonstrating the guilt of the appellant in respect of Charge 1. On the basis of the evidence, it could not be
said that no reasonable jury, properly directed, could have returned a verdict
of guilty of that charge.
[74] Accordingly the appeal based upon section 106(3)(b) and set out in Ground 4 in the Supplementary Note of
Appeal should fail. No argument was now
advanced in terms of Ground 1 of the Note of Appeal. The second and third grounds of appeal had no
merit, and in any event, the court had indicated that, in the light of the
appellant's submissions, it was unnecessary for the Crown to make a specific
submission in response to those grounds of appeal. The court was invited to refuse the appeal.
Discussion
[75] Authorities relating to circumstantial evidence were
conveniently reviewed in the Opinion of the Court, delivered by the Lord
Justice-General, in Al Megrahi v. H.M. Advocate,
2002 JC 99, 2002 SCCR 509, at paragraphs [32] to [36]. Those authorities vouch inter alia the following propositions:
1. In a circumstantial case, it is
necessary to look at the evidence as a whole.
Each piece of circumstantial evidence does not need to be incriminating
in itself. What matters is the
concurrence of testimony.
2. The nature of circumstantial evidence
is such that it may be open to more than one interpretation. It is for the jury
to decide which interpretation to adopt, and whether to draw the inference that
the accused is guilty of the crime.
3. Each of the several circumstances may
be quite neutral and not incriminating.
The question for the jury is what inference they draw, beyond reasonable
doubt, when the circumstances are viewed as a whole.
4. There may be a body of evidence, for
example, alibi evidence, which is quite inconsistent with the accused's
guilt. A jury must consider all the
evidence. But having done so, they are
entitled to reject the inconsistent evidence if they so choose.
[76] In our view, the case made against the appellant is indeed a
circumstantial case in which the facts and circumstances allowed a jury to
infer the guilt of the appellant. As the
Advocate depute submitted, the mainly undisputed evidence outlined in the first
chapter of evidence (paragraphs [25] to [31] above) formed a circumstantial
case entitling a reasonable jury to find the appellant guilty of Charge 1. The Advocate depute outlined six logically
connected inferences, set out in paragraph [60] above, as a rational line of
reasoning which a reasonable jury might adopt on the basis of the evidence in
the first chapter. We agree that such a
line of reasoning, leading to a verdict of guilty of Charge 1, was a rational
one which it was open to a reasonable jury to adopt. In drawing an inference of guilt from that
first chapter of evidence, the jury might be fortified by evidence in the
second chapter of evidence (paragraphs [32] to [41] above), should the jury
choose to accept any or all of it. For
example, it was for the jury to decide whether or not Tracy McAlroy opened her
front door and looked outside, unobstructed by glass panes. It was for the jury to decide what to make of
her identification of the appellant by the eyes. It was for the jury to assess, weigh up, and
compare the descriptions of the killer's clothing given by various witnesses,
and to prefer one or more descriptions to others. It was for the jury to consider Stephen
Madden's evidence (including his description of the passenger in the white car,
and the fact that he did not identify the appellant as that passenger), to
assess his evidence in the light of his demeanour and evident reluctance to
testify, and to weigh that evidence against other evidence which they chose to
accept. Decisions in relation to
evidence from the second chapter could thus give a reasonable jury further strands
of evidence strengthening the circumstantial case against the appellant.
[77] The fact that within the evidence as a whole, there was
testimony which might be seen as inconsistent with, or contradictory of, the
Crown's contention - for example, Stephen Madden's description of the passenger
in the car or, importantly, the evidence given by Ann Ross in support of the
appellant's defence of alibi - does not mean that the jury's decision was
irrational and one which no reasonable jury could reach. It is part of a jury's function to weigh the
competing evidence. They are entitled to
prefer evidence inferring guilt and to reject competing defence evidence. We do not consider that, viewed against the
strong circumstantial case presented by the Crown, the evidence of Miss Ross
could properly be described as being "so overwhelming in comparison with the
evidence relied upon by the Crown that no reasonable jury could convict" (Harper v H.M. Advocate, 2005 S.C.C.R. 245 paragraph [35]).
[78] As already indicated, section 106(3)(b) of the 1995 Act sets an
objective test, requiring the appellant to satisfy this court that, on the
evidence led, and having been properly charged, no reasonable jury could have
reached a verdict of guilty of Charge 1.
We are satisfied that at least one rational line of reasoning based on
circumstantial evidence, much of which was undisputed, and leading properly to
a verdict of guilty, has been identified.
In these circumstances, the test set by section 106(3)(b)
has not in our view been met. It has not
been demonstrated that no reasonable jury, having been properly directed and
having considered all the evidence in the case (including the alibi evidence),
could have been satisfied beyond reasonable doubt that the appellant was guilty
of Charge 1.
Decision
[79] For these
reasons we refuse the appeal.
