"(1) on 7 or 8 May 2002 on waste ground on the bank of the River Leven near to the Linnbrae Hole, Alexandria, or elsewhere in West Dunbartonshire, you ... did assault Amy Frances Doreen Anderson, formerly of 5 Gray Street, Alexandria and did strike her repeatedly on the body and compress and constrict her neck, thereby restricting her breathing, all to her injury or by other means to the prosecutor unknown assault her and you did murder her...;

(2) between 7 May 2002 and 22 September 2002 both dates inclusive, at Wilson Street and at Alexandria Police Station, Hill Street, both Alexandria, at Dumbarton Police Office, Dumbarton and elsewhere in West Dunbartonshire, with intent to conceal your commission of the murder of Amy Frances Doreen Anderson ... and with intent to frustrate the course of justice you ... did:

(a) on 7 or 8 May 2002 at a place to the prosecutor unknown in West

Dunbartonshire you ... did dismember the body of said Amy Frances Doreen Anderson;

(b) between 7 and 14 May 2002 on waste ground adjacent to the bank of

the River Leven near to Linnbrae Hole, Alexandria, West Dunbartonshire, you ... did light a fire with intent to burn and did attempt to burn and destroy parts of the body of said Amy Frances Doreen Anderson and thereafter you did consign part of her body to the River Leven there;

(c) between 7 and 14 May 2002 at place or places to the prosecutor

unknown you ... did dispose of the remaining body parts of the said Amy Frances Doreen Anderson;

(d) ...

(e) ....

(f) on 10 May 2002 at Dumbarton Police Office, Dumbarton you ... did

falsely state to Detective Constable Archibald Fletcher and Detective Sergeant Michael McCormack, both officers of Strathclyde Police, Glasgow and then engaged in the investigation of that murder that you had last seen, and last been in the company of, Amy Frances Doreen Anderson at about 12.30 p.m. on 3 May 2002 at the Salvation Army Halls, Alexandria;

(g) on 13 May 2002 at Dumbarton Police Office, Dumbarton, you ... did

falsely state to Detective Constables Thomas Reynolds and George Scott, both officers of Strathclyde Police, Glasgow and then engaged in the investigation of that murder that you had last seen, and last been in the company of, Amy Frances Doreen Anderson at about 12.30 p.m. on 3 May 2002 outside the Salvation Army Hall in Alexander Street, Alexandria;

(h) on 16 May 2002 at Hill Street Police Office, Alexandria you ... did

repeat these false claims to said Michael McCormack and said Archibald Fletcher;

(i) on 17 May 2002 near Lennox Street, Alexandria, you ... did falsely

state to Sergeant Ian Cameron, an officer of Strathclyde Police, Glasgow, then engaged in the investigation of that murder that you had just found outside your container unit in the corner of Lennox Street and Wilson Street there, a DSS allowance book issued to Amy Frances Doreen Anderson and did repeat this account to Detective Constables Gerard McCann and Neil Duncan on 12 June 2002 at Alexandria Police Office, Alexandria; and

(j) on 26 July 2002 at Dumbarton Police Office, Dumbarton, you ... did

falsely state to Detective Constables Philip Peacock and Thomas Rodgers, both officers of Strathclyde Police then engaged in the investigation of that murder that Bryan Galloway, care of Strathclyde Police, Alexandria had on 7 May 2002 solicited your assistance to help him remove the dismembered body of Amy Frances Doreen Anderson from waste ground adjacent to Dalquhurn Industrial Estate and to conceal parts of her body in mud flats of the River Leven close to the A82 Bypass and that you had rendered such assistance to Bryan Galloway and by these false accusations did attempt to render Bryan Galloway liable to suspicion, accusation, arrest and prosecution by the criminal authorities for the murder of Amy Frances Doreen Anderson;

and by these means you ... did attempt to conceal the murder of Amy Frances Doreen Anderson by you and to divert police enquiries from the investigation thereof and with intent to pervert the course of justice and you did thus attempt to pervert the course of justice.".

The grounds of appeal

"Ground 1. The trial judge wrongly dismissed an objection to the line of evidence taken by defence counsel and allowed irrelevant and prejudicial evidence to be before the jury in an alleged statement by the accused which was not under caution. During the evidence of Crown witness 99 Detective Sergeant McCormack objection was taken by the defence to production 24 as being a witness statement taken from the accused without a caution having been administered where the questioning went into detail about past employment and the accused indicated that he had been involved in slaughtering sheep in a bath. Further objection was taken to production 26 where the appellant (at page 3), when being asked about jobs he had held, described taking the leg off an animal. These objections were repelled. It is submitted that the learned trial judge was wrong in repelling these objections on the basis that the evidence obtained, not under caution, which thus went to the jury was irrelevant in respect that it was narrating in response to questioning occupations long in the past and employment circumstances which were highly prejudicial when the jury had to consider whether the appellant had any part in the dismemberment of the deceased (which he always denied) as opposed to disposal of parts of a dismembered body (which he admitted and explained in various statements).

Ground 2. The learned trial judge erred in refusing the no case to answer submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 in relation to charge (1). In respect of charge (1) the first part of the submission was to the effect that the Crown had failed to establish that a murder had been carried out. It was submitted that the facts did not disclose a murder in that all that had ever been recovered was a torso. The dismemberment had occurred after death. The cause of death, by the unanimous opinion of the three pathologists was unknown and unascertainable. It was submitted that the jury would have to speculate about whether a particular area of bruising was in any way associated with an act of violence. There were other possible explanations such as the result of a fall. It was submitted that death must be as a result of a criminal act or omission and this had not been proved by the evidence led. The second part of the submission was to the effect that in relation to both charges there was no evidence of concert involving both accused. The Crown case in respect of charge (1) included evidence of alleged admissions by the appellant. It was submitted that they were insufficient to establish the appellant as actor, art and part. It was submitted that on the basis of the evidence led by the Crown the possibility that the incriminee Bryan Galloway had carried out the murder had not been excluded. If it could be inferred that a murder had been committed then there was evidence pointing to Bryan Galloway. It was submitted that there was no evidence led by the Crown linking the appellant with his co-accused in any form of joint enterprise. In those circumstances there was no evidence of any art and part responsibility. If it were the Crown's position that the appellant was acting in concert with Bryan Galloway, then that took the Crown no further in relation to charge (1). The appellant's participation in assisting with the disposal of body parts could not be used as a means of establishing his guilt as actor or by way of art and part with his co-accused. The third part of the submission was that a special defence of incrimination had been raised by the appellant. It was for the Crown to exclude it beyond reasonable doubt. The appellant had incriminated Bryan Galloway who was available to the Crown as a witness but not called. It was submitted that it was for the Crown to lead evidence to exclude the said Bryan Galloway. Accordingly, the Crown failed to establish that a murder had in fact taken place or that the appellant had any responsibility on an art and part basis. The Crown had also failed to exclude the special defence. See Renton & Brown paragraph 24.01 (Hendry v Her Majesty's Advocate 1998 S.L.T. 25).

Ground 3. The trial judge wrongly took the view that the sub-heads in charge (2) were not themselves separate charges in respect of each of which it was possible to make a submission, and in any event wrongly repelled submissions in terms of section 97 aforesaid in relation to charge (sic) (a), (d), (i) and (j). The fourth part of the submission was that so far as charge (2) was concerned, the separate heads of the charge could each be the subject of a submission of no case to answer. It disclosed a series of crimes and in respect of certain parts there was insufficient evidence. It is submitted that there was insufficient evidence in relation to heads (2)(a), (2)(d), (2)(i) and (2)(j). Charge (2)(a) was also the subject of a submission in relation to the question of concert. Charge (2)(d) was later withdrawn by the Crown and did not go to the jury. It was open to the learned trial judge to deal with those as distinct charges and not as a single course of conduct. Reference is made to paragraph (b) above and the same ground applies to charge (2)(a) in that respect. In relation to charge (2)(a) there was no evidence that the appellant dismembered the body of the deceased. At its highest (were it admissible- supra) there was some evidence in statements made to the police that the appellant had experience and knowledge in relation to dressing sheep and deer. A submission was further made in relation to charge (2)(I) (sic). There was evidence that a search had taken place of the container on or about 11 May 2002. Nothing had been found. There was evidence that the appellant then handed over the book on 17 May 2002. There was no evidence adduced to contradict the appellant's position that he has (sic) just found the book at that time. There was no evidential basis to support any view that it had been placed there by the appellant. A further submission was made in relation to charge (2)(j) that the Crown had a duty to exclude Galloway in relation to his involvement in terms of the appellant's special defence. The Crown had been given fair notice as to the appellant's position. The Crown were under a duty to produce evidence from Galloway to the effect that the appellant's allegations were false. This was not done. There was accordingly no evidence to demonstrate that the appellant's allegations were false. There was accordingly insufficient evidence to demonstrate that a false position had been stated to police office (sic) by the appellant on 26 July 2002. The learned trial judge refused the motion. It is submitted he erred in so doing. That being so the appellant was denied a fair trial and there was a miscarriage of justice.

Ground 4. The trial judge misdirected the jury by failing to give them adequate directions as to how to approach the evidence in charge (1). Whilst directing the jury on the law of murder (page 10 line 25 to page 11 line 12) in what had been a protracted trial the trial judge failed to identify the crucial issues the jury had to determine as they proceeded. His directions (page 12 line 18 to page 15 line 7) were scant, inadequate and fundamentally and fatally flawed. The basic issue in light of the evidence in the case was whether a murder had been committed at all and if so how, when and by whom. In a long and complicated case before going on to the question of any form of alleged admissions by the accused the basic question of whether there had been a murder required to be addressed. The learned trial judge required to direct the jury to address this as the fundamental issue. The learned trial judge was correct in pointing out that there was no eye witness evidence (page 6 lines 19 to 23) simply circumstantial evidence. The pathologists were unable to ascertain a cause of death as some body parts were still missing. The learned trial judge should have directed the jury to consider the medical evidence with care and consider whether on that evidence an inference could be drawn that the deceased had been killed. The learned trial judge failed to make any reference to the medical evidence led in relation (a) to other possible explanations for the death of the deceased which he should have done. The time of death was crucial in light of the varied circumstantial evidence. There was evidence before the jury that the deceased had been seen by a witness David McDiarmid at 6 p.m. on 7 May 2002 and by a witness Mary Stern at 7 p.m. and by William Clark at varying times on 8 May 2002. The Crown led evidence from three midwives from the Vale of Leven Hospital, Pauline Waddell, Pamela Campbell and Fay McAteer, who because of the nature of their employment had to note times carefully, who were able to say that between 1.05 and 1.25 a.m. on 8 May 2002 they heard horrific screaming outside the hospital in the direction of the main road. Their evidence was crucial in considering whether Bryan Galloway, an in-patient at the hospital following a stabbing, who was up and about his ward at 1.35 a.m. collecting prescribed drugs from the duty nurse, had opportunity to be out in the grounds and inflict death upon the deceased. The trial judge failed to give any directions on these matters. The Crown led evidence from Kenneth Wrethman and Robert Wrethman that they had gone on a fishing trip on 8 May from 4 to 6 a.m. (KW) or from about 1 a.m. until just before sunrise (RW) and that they saw the accused drag something to a spot near steps on the other side of the river where he set something alight which one of them spoke to having an awful smell. They resisted the suggestion that any fire on the other side had been in the early hours of the morning of Saturday 11. Further and in any event the learned trial judge failed to draw to the attention of the jury the serious discrepancies which existed in the differing accounts given by the two witnesses about the same event as regards time, the circumstances and their reasons for leaving the area. The Crown led evidence from a witness Colin Gray showing video shots of him leaving an address just before 3 a.m. on 8 May. He stated (and this was unchallenged) that he made his way to Mr. McArthur's container arriving about 3.30 a.m. and that Mr. McArthur was there and remained there until they left, with another who had arrived later, for Mr. McArthur to make a cash withdrawal of which a record was produced showing that to be at 6.33 a.m. It was incumbent upon the trial judge to give the jury directions as to how they should approach the question of the possible time of death. Further, the learned trial judge said that counsel for the appellant had been wrong to suggest that defence witness William Clark ought to have been called by the Crown. He was an important witness in that he may have been the last person to see the deceased alive and dying a non-violent death. He was on the Crown list. The learned trial judge deals with this at page 12 of his charge at lines 5 to 17 inclusive. To do so was likely to have a prejudicial effect in the minds of the jury. Further they should have been directed that if the (sic) accepted the evidence of the witness Clark or it raised a reasonable doubt in their minds they could not accept the evidence of the Wrethman brothers which was challenged by the defence in respect of date and time. The jury should also have been directed that the evidence from Clark was vital as to whether they considered the evidence of the three nurses Miss Waddell, Campbell and McAteer had any relevance to the case. It is thus submitted that the learned trial judge erred in directing the jury in the foregoing respects. That being so, the appellant was denied a fair trial and there was a miscarriage of justice. It is submitted that the conviction should be quashed.

Ground 5. The trial judge failed to direct the jury on the effect of the acquittal by him of Mr. McCormack whose name remained on the indictment and in respect of whom a notice of incrimination had been lodged. The trial judge properly directed the jury that in respect of any statement made by Mr. McCormack it was not evidence against Mr. McArthur (page 6 lines 3 to 8) but then went on to say 'So put anything Mr. McCormack said to the police out of your minds' (page 6 lines 8 to 9). It is submitted that was a misdirection. Mr. McCormack made several admissions to the police which were evidence against himself. He was an incriminee. The jury should have been directed that as the statements were evidence in the case if the admissions (which were as sole actor in killing the deceased) raised a reasonable doubt in the minds of the jury as to Mr. McArthur's guilt he should be acquitted. It is submitted that in all the circumstances the appellant was denied a fair trial and that a miscarriage of justice has been suffered. It is submitted that the convictions of the appellant should be quashed."

Submissions for the appellant

Submissions of the Crown

The decision

"We heard a certain amount of evidence, ladies and gentlemen, of what Mr. McCormack - who is no longer in the dock - said to the police. Nothing in what Mr. McCormack said to the police can possibly be evidence against Mr. McArthur so put anything Mr. McCormack said to the police out of your minds."

It was submitted to us that that passage in the charge amounted to a misdirection. The contention was that Mr. McCormack had made several admissions to the police which were evidence against him, an incriminee. It was contended that the jury should have been directed that the statements were, in some way, evidence in the case, even after the acquittal of Mr. McCormack. We are quite unable to agree with that contention. While Mr. McCormack remained an accused person, it was plainly open for the Crown to lead evidence of the contents of statements made by him. They were evidence against him, although not, of course, against the appellant. However, upon his acquittal, in our view those statements became hearsay evidence of an incriminee. On the basis of the cases of Perrie v H.M. Advocate and McLay v H.M. Advocate it is quite clear that such evidence is not admissible. The consequence of that is that, so far as the appellant was concerned, following the acquittal of Mr. McCormack, that evidence was not available to him for any purpose. In substance, that is what the trial judge said to the jury at page 6 of the transcript of the charge. In our view that direction was quite correct. In these circumstances we reject this ground of appeal.