APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Mackay of Drumadoon	[2010] HCJAC 31 Appeal No: XC195/05 & XC213/05 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by (First) FRANK DOCHERTY and (Second) BRENDAN CHRISTOPHER DIXON Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant: G Jackson QC, C M Mitchell; Mann & Co

Second Appellant: Shead, M C Mackenzie; Capital Defence Lawyers

Respondent: Prentice, Solicitor Advocate QC, Advocate depute; Crown Agent

26 March 2010

Introduction

[1] On 1 March 2005, at Kilmarnock High Court, each appellant was convicted by majority verdict of the following offence:

"(3) On 28 September 2003 at 21 Barward Road, Galston you ... did enter the house there, assault Margaret Hutchison Irvine, aged 91 years, then residing there, switch off the electricity there and struggle with her, tie her hands behind her back with a belt, punch her on the head and body, force a piece of cloth into her mouth and asphyxiate her, all with intent to rob her and you did murder her."

The second appellant was also convicted of Charge 4, attempting to defeat the ends of justice.

[2] The victim, a 91-year-old lady, had been found dead in her home at 21 Barward Road, Galston at 4.50 pm on Sunday 28 September 2003. She had head injuries, a broken rib, and bruising on the right hand, arm, left wrist and thumb. She had been gagged with a duster and left lying face down on her bed with her hands tied behind her back. The cause of death was asphyxiation. Ultimately the two appellants and Colin Miller were charged with murder. The Crown case was a circumstantial one. Each appellant lodged a Special Defence of Alibi. The first appellant maintained that he had been in his house with his partner Irene Rowan and her daughter on Saturday night and Sunday morning (27 to 28 September 2003). The second appellant's position was that he had been at his sister's house on Saturday night and Sunday morning. During the trial, the judge refused a "no case to answer" submission made in respect of each appellant. The appellants were convicted and sentenced to life imprisonment. Colin Miller was acquitted not proven. Both appellants appeal against conviction, contending that the circumstantial evidence was insufficient to convict them; that there was non-disclosure of police statements given by Crown witness number 22 Sheena Orr; alternatively Mrs Orr's police statements comprised fresh evidence, and in a further alternative there had been defective representation in that the defence had not obtained the information available in those police statements; and finally in the case of the second appellant, that there had been a misdirection relating to corroboration and inappropriate treatment of two defence witnesses by the trial judge.

Evidence, statements, and judge's directions

[3] The evidence established that Mrs Irvine was a frail but strong-willed lady who lived alone in a semi-detached two-storey house at 21 Barward Road, Galston. She needed a Zimmer and an electric stair-lift. Carers called regularly to help her with meals and self-care. Once the carer had unlocked her door, Mrs Irvine preferred to leave it unlocked to allow people to come in and out. Mrs Irvine's nephew Charles Keers (aged 51) lived in the semi-detached house next door.

[4] Some six weeks prior to Sunday 28 September 2003, Mrs Irvine's house had been broken into and money and jewellery stolen. That incident was reported in the press, and discussed locally. Thus it was known that Mrs Irvine kept significant amounts of cash in the house.

[5] Early in the morning of Sunday 28 September 2003, one of Mrs Irvine's week-end carers arrived at 7 a.m. and gave her breakfast: half a roll with butter, and a cup of tea. Mrs Irvine was wearing her nightdress and was sitting up in bed. She ate breakfast in bed, and told the carer that she intended to have a lie-in. When the carer left at about 7.25 am, the bedside light was on. Later that Sunday, at about 4.50 pm, another carer arrived. Mrs Irvine would normally have been in the living-room at that time, but she was not there. The carer went upstairs and found Mrs Irvine slumped face-down on the bed. She was wearing a nightdress and pants. Her hands were at her back. The carer went to a neighbour who called the police and an ambulance. It was found that the electricity at 21 Barward Road had been switched off at the mains; the downstairs telephone had been disconnected; a Zimmer frame had been moved from the foot of the stair-lift in the hallway, and was not readily accessible to the stairlift-user; a yellow duster was also found in the hallway; drawers in the living-room were partially opened and a musical jewellery box was open and items strewn about; in the spare bedroom, drawers were partially opened, and a musical jewellery box open; in the main bedroom the pillows on the bed were out of place and a hand-bag lay under a pillow. It was also found that Mrs Irvine had her hands tied behind her back; one plate of her dentures was in her left hand, and the other plate was on the bed; a yellow duster had been forced into her mouth and throat. The police subsequently found a key to a wardrobe, which contained cash amounting to almost £9,000. The DNA of an unidentified male was found on Mrs Irvine's pinkie. Unidentified footprints were found outside the house. There was no forensic evidence linking the crime to either appellant.

[6] The Crown presented the case on the basis that the time of death was about 8 am on Sunday 28 September 2003. That timing depended upon several pieces of evidence. The carer had left Mrs Irvine at about 7.25 am. Mrs Irvine's nephew Charles Keers heard noises coming from her home between 7.30 am and 8 am. He described the noises as a roar lasting a few minutes, and then someone running down the stairs. When Mrs Irvine was later found, she was still wearing her night-clothes and her bedside light came on when the electricity was restored (suggesting that the attack had occurred before Mrs Irvine got up, dressed herself, and went downstairs to the living-room as was her normal practice). Finally and significantly, when the deceased's stomach contents were examined, the open-textured bread of the half-roll which she had eaten for breakfast had not broken down to any great extent. The evidence of Dr Jennifer Miller of Glasgow University was to the effect that such open-textured bread was very quick to break down. The Advocate depute advised this court that the pathologist Dr Marjorie Black in her evidence gave a possible range for the time of death as between 7.30 am and 10 am. The Crown's position (that the death occurred at about 8 am) was unchallenged at the trial, either by submission or by evidence.

Evidence particularly relevant to the first appellant

[7] The evidence established that on Friday 26 September 2003 (two days before the incident), a drug addict named David McCormack saw the first appellant driving a car. Mr McCormack approached him, hoping to obtain drugs. The first appellant asked Mr McCormack if he "wanted to do any turns" while he had the car. Mr McCormack understood that he was being invited to participate in theft by housebreaking. He declined the invitation.

[8] On Saturday 27 September 2003, the day before the incident, Mrs Irvine's nephew Mr Keers saw two men walking in the street outside Mrs Irvine's house. He had first noticed them prior to the earlier break-in. They appeared to be in each other's company, although they did not speak to each other. One of the men resembled the first appellant, and was wearing a baseball hat and a hood despite the warm weather. Mr Keers found their behaviour odd and suspicious.

[9] On the day of the incident, Sunday 28 September 2003, Alison Rowan (aged 19) the daughter of the first appellant's partner Irene Rowan, saw the first appellant coming into his house at 21 Knowehead Road, Hurlford, at 11 am. He was then physically sick. By contrast, Irene Rowan gave evidence that the first appellant had been in the house all morning and that he was in good health, although in prior inconsistent statements given to the police, she described the first appellant as coming into the house at 11 am and lying on the couch as he was not feeling well.

[10] In the days and weeks following the incident, the first appellant made certain comments and behaved in certain ways. For example:

[11] To David McCormack, the first appellant said that he had heard that Colin Miller "had something to do with it". The first appellant claimed that Mr Miller had told him that he (Miller) had been in the old woman's house. He heard a commotion upstairs and the old woman screaming. He then pushed somebody out of the way, and said "I'll show you how to deal with this". Subsequent evidence was led indicating that Colin Miller could not have told the first appellant any of the above. The jury were invited to conclude that, in order to have that special knowledge, the first appellant must have been a participant in the break-in and present when Mrs Irvine was being attacked.

[12] To Martin Robertson, the first appellant claimed that the second appellant had done it, but ultimately said "You know who did it, Martin", and winked. Mr Robertson formed the impression that the first appellant was boasting that he had committed the deed, but was trying to put the blame on the second appellant.

[13] To Detective Constable Strickland, who took a witness statement from the first appellant on 15 October 2003, the first appellant stated that he never left his house at 21 Knowehead Road, Hurlford, from Saturday night into Sunday morning. He had learned of the murder from the radio on Sunday morning. However other evidence established that Mrs Irvine's body was only discovered at 4.50 pm on Sunday, and that details were not sent to the press until 11 am on Monday 29 September 2003.

[14] To Andrew Hay, a friend, the first appellant (while denying being involved) said that he had heard that:

" ... Brendan Dixon, Colin Miller and a guy called Smith had done that to that woman ... Colin's meant to have bit the old woman's fingers ... Brendan is meant to have freaked out and ran out."

The first appellant explained his possession of this information by saying "I just got telt". Again, the Crown suggested to the jury that the statement demonstrated special knowledge.

[15] To Detective Sergeant Lorimer, who interviewed the first appellant on 31 October 2003, the first appellant claimed to have been told by Andrew Hay that the murder was committed by Colin Miller, Brendan Dixon and Chris Smith. However Andrew Hay denied giving him any details about the murder. The first appellant claimed that Andrew Hay told him that -

"... Chris and the Colin, Chris and the Brendan wan is meant tae be in the hoose, daein the hoosebreakin and Colin Millar wan is meant tae be outside cop-watchin. He's heard aw the commotion, come intae the hoose an went like that, whit's happening, and they've apparently went like that, she's no telling us where the money is an whatever an Colin Miller's supposed tae huv gone like that, well this is how ye fuckin dae it, [threw] her doon an tied her up."

The Crown suggested to the jury that the statement demonstrated special knowledge.

[16] To a friend Hayden McGonigle, the first appellant said that he had been interviewed by the police about the murder. Mr McGonigle commented on the fact that the first appellant had dyed his hair. The first appellant replied "DNA, you know what I mean". Mr McGonigle also gave evidence that the first appellant said:

"Brendan [the second appellant] was a sore heid. You couldnae take him on a turn anywhere."

Mr McGonigle understood that the first appellant was complaining that he had laid the turn on and that the second appellant had participated but done something wrong. In Mr McGonigle's words:

"He [the first appellant] was making out that Brendan had done something wrong but he wouldn't say any more."

[17] Edward O'Brian gave evidence that in October 2003 the first appellant had been worried, gaunt and on edge, "definitely ducking and diving, using all the back closes, entry doors and all that".

Evidence particularly relevant to the second appellant

[18] The evidence established that Galston and Hurlford are situated near Kilmarnock. A path led from Mrs Irvine's house at 21 Barward Road, Galston, to a field and a disused railway line giving access to Hurlford. Detective Constable Cree gave evidence that the distance from Mrs Irvine's house in Galston to Hurlford via the disused railway line was approximately 2 miles. The officer walked the distance in just under half an hour, and ran it in just under 15 minutes.

[19] Although the second appellant did not give evidence, his position (as set out in his Special Defence of Alibi) was that he spent the night and morning of Saturday 27/Sunday 28 September 2003 at the house of his sister, Margaret Marie Dixon, at 23 Tinto Avenue, Kilmarnock. He heard about the murder on Sunday morning, (although as already noted other evidence established that details were not sent to the press until 11am on Monday 29 September 2003). During the trial, evidence was led from Miss Dixon and Kevin Donald, both named in the Special Defence. Miss Dixon gave evidence that the second appellant stayed in her house from before midnight on Saturday 27 September 2003 and during the morning of Sunday 28 September 2003, at which time the second appellant had telephoned his partner Patricia Cooper. Mr Donald gave similar evidence. Prior inconsistent statements were put to each witness. Mr Donald had previously told the police that the second appellant did not arrive at Tinto Avenue until Sunday evening. Miss Dixon had given statements indicating first, that the second appellant had not stayed with her for well over a month (and therefore could not have stayed at Tinto Avenue on the Saturday and Sunday in question). Later she told the police that the second appellant came to her house on Sunday evening, an hour before the film started. Finally she maintained that the second appellant had been in her house on the morning of Sunday 28 September 2003, and that he had been telephoning his partner Patricia Cooper. Patricia Cooper's evidence, by contrast, was that she had no telephone conversations with the second appellant on Sunday, the day of the murder. Telephone records showed that all the relevant phone-calls took place on Monday.

[20] Other evidence contradicted the second appellant's alibi. In particular, Lee Sheville and Antoinette Wallace, who lived together at Portland Brae, Hurlford, gave evidence that the second appellant often stayed with them, sleeping in their house or in the car. According to Mr Sheville, the second appellant left the house at Portland Brae at 9 pm on Saturday 27 September 2003. When Mr Sheville got up at 7 am the next morning (Sunday 28 September 2003) there was no sign of the second appellant. Miss Wallace got up at about 8.30 am. The second appellant then arrived at their house. He was soaking wet up to his knees. His trainers were muddy and wet. He was sweating profusely. He scrubbed both himself and his trainers with Dettol, using half a bottle. He was "not being normal". He changed his clothes, and Miss Wallace washed the discarded clothes. He was "hyper ... paranoid ... spooked". He stared out of the window for about four hours. When asked what he was doing, he said that he had been arguing with his ex-girlfriend, and that she might send the police. At a later stage, the second appellant told Mr Sheville that "Dave the Rave" (David McCormack) and "Pat the Rat" (the first appellant) were responsible for the murder.

[21] The second appellant's ex-partner Patricia Cooper gave evidence that in October 2003 the second appellant contacted her and asked if the first appellant (Patrick Docherty) had been arrested for murder. She asked "Why Pat?", and he replied "Because Pat done it". The second appellant denied being present at the murder, and gave no further information.

[22] Patricia Greenan, a patient at Crosshouse Hospital, met the second appellant who had been brought to hospital after a collapse. The second appellant told her that he had been present when there was a murder, but he had not done it.

[23] Detective Constable Drummond interviewed the second appellant. The second appellant maintained that he had spent Saturday night at his sister's house, and that he had heard about the murder on Sunday morning. He denied using the disused railway line between Galston and Hurlford; or arriving at Lee Sheville's house on Sunday morning; or using Dettol to clean himself; or looking out of the window for hours; or mentioning the murder to anyone in Crosshouse Hospital.

[24] Joseph Leiper said that he was told by the second appellant that the first appellant had done the murder, and that he (the second appellant) had been present and had run away.

Evidence of Crown witness Mrs Sheena Orr, and her statements

[25] The lawyers acting for the first appellant noted that Mrs Sheena Orr was listed as a witness on the indictment. In preparation for the trial they took a precognition from her. In that precognition, she described seeing two men at Mrs Irvine's house at 21 Barward Road at about 11 am on Sunday 28 September 2003. One man was standing in the driveway of the house at number 21. A second man was coming out of the house. Mrs Orr gave a description of the man in the driveway, but was unable to give any details in respect of the second man. The police had shown her sheets of photographs, and she had selected one whom she recognised as the man in the driveway.

[26] The lawyers acting for the second appellant also took steps to precognosce Mrs Orr. In that precognition, Mrs Orr stated that she saw two men, she thought it was a Sunday afternoon, at Mrs Irvine's house. One man was at the front door, and one at the gate. She described the man at the front door. She mentioned giving a statement to the police, but did not refer to photographs.

[27] The police took several statements from Mrs Orr. In the first statement, she described seeing two men standing on the driveway of Mrs Irvine's house at 2.30 pm on Sunday 28 September 2003. The men were together, standing where the driveway met the pavement. She gave a description of one man, but was unable to give much information about the other. She stated that she had seen the first man again at about 4.30 pm, walking on the pavement away from Mrs Irvine's house. In a second statement, she referred to a book of photographs shown to her by the police. She had selected one as the first man. She subsequently told the police that the man had a blue coloured tattoo in the shape of a cross on his neck, just below his right ear.

[28] The police subsequently ascertained that the photograph selected by Mrs Orr was one of Peter Fraser, a Crown witness on the indictment. That information was added in manuscript to Mrs Orr's statement about the photographs. However as Mrs Orr's police statements were not disclosed to the defence (following the practice at the time) the defence did not receive that information. Peter Fraser had previous convictions for violence and dishonesty, and also suffered from mental health problems. He was an acquaintance of Colin Miller's. The police made investigations into Peter Fraser's whereabouts on the day of the murder. The information which they obtained satisfied them that Peter Fraser had not been in Barward Road on that day.

[29] During the trial, the Crown led Peter Fraser as a witness. Mrs Orr was not led as a witness by either the Crown or the defence.

[30] In preparation for this appeal, agents for the first appellant took a further precognition dated 19 September 2009 from Mrs Orr. The agents also ascertained that the murder appeared to coincide with a gap of some hours in Peter Fraser's alibi. As the Advocate depute pointed out, in view of the importance of the submissions resting upon the non-disclosure argument, what was required from Mrs Orr was an affidavit, rather than a precognition. However on this particular occasion we are prepared to consider the content of the precognition. In that precognition dated 19 September 2009, Mrs Orr gave different timings for events. She stated that she left her home in Galston at approximately 7.45 am, and went to decorate her mother's house at 29 Barward Road (near Mrs Irvine's house). At about 11 am, she returned to her own home to collect further wallpaper and paste. She collected the materials and drove back to Barward Road. She saw two men in the garden area of Mrs Irvine's home. The man nearer the garden gate was the one whom she had been able to describe, and whose photograph she had later selected. Mrs Orr then entered her mother's home and continued decorating. She returned home to her own home at about 2.30 pm.

[31] At page 5 of her precognition, Mrs Orr commented:

"... Insofar as the timing of the sighting of this individual [whose photograph I selected], I now know that the information contained within my statements is incorrect. I was absolutely certain that I returned to my house that day at half past two, after which I did not go back to my mother's house in Barward Road. What I forgot at the time was that I returned at an earlier point ...I am absolutely certain that when I saw the individual on Barward Road it was not half past two. It would have been some time around eleven am, and no later than twelve noon. The reason I know this is that I returned to the house and picked up materials, and then returned to Barward Road where I completed further hanging of paper. I would say that I worked again in the house for at least an hour and a half, if not longer, after returning the second time ... I believe that I simply overlooked the fact that I had returned to the house previously. I was concentrating on identifying the individual that I had seen ... I was ... called by the prosecution as a witness on several occasions to attend court, but was never actually called to give evidence."

The trial judge and the two witnesses led in support of the second appellant's alibi

[32] The trial judge in his report to this court gives the following information:

" ... In the course of [Margaret Dixon's alibi] evidence I had occasion to ask [her] to listen to the question and to answer the question. This occurred several times in a variety of circumstances.

The first occasion occurred when it appeared that the witness was about to give hearsay evidence. Another occasion occurred when a production was put before her and I intervened to tell her not to read the document because she would be taken through it and I admonished her to listen to any questions that were to be asked. On another occasion as she was asked a question 'Did you try to tell them (the police) the truth?' she answered 'About?'. The Advocate depute replied 'About anything. About everything.' The witness answered 'Yes. I couldn't remember where he was at that time.' Again I intervened and asked her to listen to the question and to answer the question. The question was repeated 'Did you try to tell the police the truth?' to which she replied 'Yes'. When she was given another statement she was reading that rather than listening to the question and I admonished her in that regard. These were examples of asking the witness to answer questions. I did not admonish her in the presence of the jury in respect of the consequences of not telling the truth. I have listened to the tape and at 11.28.50 I spoke to the witness outwith the presence of the jury to the effect that I had to remind her on several occasions about answering the question and not avoiding doing so. I warned her of the consequences of persisting in such behaviour. Thus the only warning about the consequences of not telling the truth was administered outwith the presence of the jury.

In the case of Kevin Donald there were occasions when I told him to listen to the question and to answer the question. At 1300 hours outwith the presence of the jury I warned the witness about prevarication and perjury. After lunch at 1403 again outwith the presence of the jury, I told the witness to listen to the question and to answer it. I also told him that if he did not know the answer he should not make it up but simply say that he didn't understand or that he didn't know the answer. Thereafter the jury returned. In the course of the afternoon I reminded him on three or four occasions to listen to the question. At the conclusion of his evidence I told him to take a seat in court and advised him that he was not excused from his citation. This was done in the presence of the jury. It respectfully seems to me that the refusal to excuse a witness does not convey any impression to the jury ..."

The judge's directions relating to corroboration

[33] At pages 28 to 29 of the charge, the judge directed the jury as follows:

"Now, what is meant by corroboration? Corroboration simply means there has to be separate evidence from another independent, reliable and credible source which confirms or supports the evidence of the other witness who you find to be credible and reliable. Obviously, ladies and gentlemen, really what you are looking for is a check. You have got one piece of credible and reliable evidence that you accept from one witness, you are looking for a check to see if there is some support for that, and because of that, ladies and gentlemen, the stronger the first piece of evidence, the less support is required, so if you have an overwhelming piece of evidence, a very small piece of evidence might be sufficient to support it, but on the other hand, if the first piece of evidence isn't all that strong, then you might be looking for a stronger piece to look for support. What you are looking for really is two pieces of evidence that you find to be credible and reliable which confirms or points to the proof or the establishment to your satisfaction of the guilt of the accused. That is what you are looking for, that both pieces of evidence point to the guilt of the accused."

Submissions for the first appellant

[34] The Grounds of Appeal argued were Grounds 4 and 5 (insufficient evidence), and Ground 1A relating to Sheena Orr's police statements (fresh evidence, non-disclosure, and defective representation). Grounds 1, 2, and 3 were refused at a procedural hearing on 15 October 2009.

Insufficiency of evidence (Grounds 4 and 5)

[35] Senior counsel for the first appellant submitted that it was not clear how definite the time of death could be. It was possible that there was a missing link in the evidence. There were no eye-witnesses, no forensic evidence, and no admissions. None of the strands of evidence relied upon by the Crown in its circumstantial case had any strength. Mr Keers' evidence of resemblance identification of the first appellant as one of the two men who had been seen outside the deceased's house the previous day (a dock identification with inherent limitations) was of no real value. The evidence of David McCormack was similarly of no value, as the invitation to "do a turn" did not implicate the first appellant in the offence at Barward Road. The evidence about information allegedly obtained from Colin Miller had no weight, as Colin Miller had been acquitted. Any suggestion that information could not have come from Colin Miller did not permit the jury to conclude that the first appellant himself must have had the necessary knowledge: thus no special knowledge had been demonstrated. There was no basis upon which the jury could accept that the first appellant had been boasting to Martin Robertson about committing the crime at Barward Road. Neither blaming someone else, nor winking, were of any value in assessing whether the first appellant committed the offence. Moreover the actions were inconsistent. Possessing information about a crime could arise from rumour and gossip, and should not be viewed as special knowledge. Thus the evidence given by Andrew Hay about what the first appellant told him had no weight and did not disclose special knowledge. Nor did it implicate the first appellant in any way. The evidence of Hayden McGonigle relating to the first appellant's having dyed his hair and making various comments about DNA and complaints about the second appellant's behaviour during a turn, amounted to another speculative leap. The evidence of Alison Rowan about the first appellant coming in at about 11 am on the morning of the crime and being physically sick, took the Crown case no further. The evidence that the first appellant told the police that he had heard about the murder on the radio at 11 am on Sunday when no media news was made available until Monday morning was unimportant. Certain other strands of evidence mentioned in the Crown written submissions in paragraphs 24, 25, and 27 (relating to the first appellant's visit to a neighbour the previous Saturday night, the various police statements of the first appellant's partner describing the first appellant lying on a couch on Sunday and being violently ill in the afternoon, and Edward O'Brian's evidence about the first appellant being a worried man) did not assist the sufficiency of the Crown case.

[36] So far as concert was concerned, even if the first appellant could be shown to have been a participant in planning a break-in (for example, if the evidence of Mr McGonigle was construed as an admission by the first appellant that he had been involved in planning a housebreaking), that was insufficient to satisfy a jury that he was a participant in the events in the house which caused the death of Mrs Irvine.

[37] In conclusion, the evidence had simply been insufficient. The first appellant had no case to answer, and the trial judge should have sustained the submission.

The Crown's non-disclosure of Sheena Orr's police statements (Ground 1A)

[38] As the Crown accepted that it had failed in its duty to disclose Sheena Orr's police statements to the defence, it was unnecessary to consider matters from the perspective of fresh evidence. The only issue was whether the non-disclosure mattered.

[39] Mrs Orr's first police statement referred to a sighting of two strange men at Mrs Irvine's house at about 2.30 pm on Sunday 28 September 2003. That time was wrong: the sighting was some time between 11 am and midday (as confirmed by Mrs Orr in her latest defence precognition). The undisclosed police statements showed that Mrs Orr had later identified one of the men from police photographs. The police were able to put a name to that photograph, "Peter Fraser". Mrs Orr's police statements recorded that she said that that person (Peter Fraser) had a tattoo on his neck. While the Crown had information that Peter Fraser had no tattoo, counsel referred to an affidavit from a solicitor Graham Cunningham confirming that Peter Fraser did indeed have a tattoo on his neck. Peter Fraser had a history of serious offending and mental illness. He was an associate of Colin Miller. He had stated that he would be "pulled in" for the murder. Peter Fraser's girlfriend lived near Mrs Irvine's house. That same girlfriend gave Colin Miller an alibi.

[40] Counsel submitted that the non-disclosure of Mrs Orr's police statements mattered to the first appellant. The man seen was later identified by the police as Peter Fraser, a man with some connection to Colin Miller (one of the men charged with the murder), and with a background of criminality. Where one had a crime with no direct identification, no forensic evidence, and no direct admission (a case entirely dependent upon circumstantial evidence) then the fact that Mrs Orr had identified someone who fitted the profile of someone who might be involved, whose alibi did not work, who was connected to Colin Miller, and who was seen in the garden area at some time between 11 am and midday, was very important for the first appellant. The Crown had relied upon the fact that two men were seen in the vicinity of Mrs Irvine's house the day before the murder: this sighting on the day of the murder at the locus shortly after the crime was committed was just as significant, if not more so. Tactically, any defence counsel could have found that information of value. The time of death could be said to be unclear. Had the defence been made aware that it was Peter Fraser who had been seen in Mrs Irvine's garden at about late morning or midday, the time of death would have been explored at a consultation with Dr Jennifer Miller, to ascertain the tolerances of the time-scale. The defence would want to know how late in the day the death could have occurred. The matter would have been further explored with their own pathologist expert. Thus the non-disclosure had a material effect.

[41] It might be suggested that the defence already had sufficient information about two men seen in Mrs Irvine's house between 11 am and noon on the day of the murder: but the defence did not have the name "Peter Fraser" (a man with previous convictions and an associate of Colin Miller). That information would have provided material for a Special Defence of Incrimination. In any event, esto it were to be suggested that the defence should have followed certain lines of inquiry, the first appellant had a ground of appeal based on Anderson v HM Advocate 1996 JC 29. Thus if it were to be suggested that the defence were at fault in not following up their own lines of information, then that was in itself a ground for granting the appeal on the basis of a miscarriage of justice, and quashing the conviction.

[42] For all or any of the above reasons, there had been a miscarriage of justice. The first appellant's appeal should be allowed and the conviction quashed.

Submissions for the second appellant

[43] The Grounds of Appeal argued were Ground 1 (insufficient evidence), 2 (misdirection on corroboration), 4 (the treatment of two defence witnesses), and the additional Ground 7 (non-disclosure of Sheena Orr's police statements). Counsel did not insist upon Grounds of Appeal 3 and 5, and sought to continue Grounds 8 and 9 relating to the police interviewing the second appellant without his having had the benefit of a solicitor.

Insufficiency of evidence (Ground 1)

[44] Ground 1 is in the following terms:

"The trial judge erred in repelling a submission of no case to answer in respect of the charge of murder. In seeking to establish its case the Crown relied on the doctrine of concert. Properly analysed there was insufficient evidence to show that the appellant had subscribed to a common criminal purpose to rob the deceased or to any common criminal purpose which carried the obvious risk that human life would be taken."

[45] Counsel for the second appellant submitted that there had been insufficient evidence to establish the necessary antecedent concert for robbery. A robbery could be committed by the use of intimidation, i.e. without actual violence. In the present case, the Crown could not establish who had used violence. The Crown was thus forced to rely upon a common purpose which objectively was wide enough to include the mens rea for murder. Where people went to a robbery carrying lethal weapons, a common purpose extending to the crime of murder might be inferred: McKinnon v HM Advocate 2003 JC 29, 2003 SCCR 224. In the present case, an inference of concert for the purposes of theft could be inferred (for example, the information in the local paper that the deceased had cash in the house, the moving of the Zimmer, the switching off of the electricity at the mains). But what happened in the house did not demonstrate a prior plan to commit a robbery. Even if the Crown were correct in their argument that the "theft" concert developed into a different type of concert once the thieves were in the house and had difficulty finding the money, there was insufficient evidence to establish that the second appellant had subscribed to a common criminal purpose to rob with violence. The moving of the Zimmer and the switching off of the electricity were redolent of a prior plan to commit theft, but not eloquent of a plan to commit robbery. The trial judge had therefore been wrong to reject the submission of no case to answer. In any event there had been insufficient evidence to establish a prior plan to commit a robbery comprehending actions putting human life at risk. No weapons were involved. There was no evidence of an antecedent plan to rob a 91-year-old woman. The Crown suggested that one could conceive of a different plan developing spontaneously, but that was not the case. If the Crown position was that this was a case of a theft "gone wrong" resulting in someone interrogating Mrs Irvine, and if that could be regarded as a common criminal purpose, there was no basis in the evidence to infer that the second appellant subscribed to that purpose. There was no basis in the evidence to infer a murderous purpose as defined in McKinnon, proved beyond reasonable doubt by corroborated evidence. It was not enough for the Crown to show the second appellant's participation.

The Crown's non-disclosure of Sheena Orr's police statements (Ground 7)

[46] The defence had a pre-trial precognition, but neither in that precognition nor in the first appellant's precognition did Mrs Orr name one of the men seen as "Peter Fraser". That information was contained only in the police statements. Peter Fraser had no alibi witnesses for a number of hours during the material time. He had a record of violent and dishonest offending, and had been on bail at the time of the murder. While Peter Fraser had been called as a witness by the Crown, the Advocate depute had not put to him that he had been at the locus at the relevant time. One had to assume that the Advocate depute had been unaware of that piece of information. Senior counsel for the second appellant had certainly been unaware. There had been two pieces of important forensic evidence from the locus, namely unidentified DNA, and unidentified footprints. Had the defence been given the information about Peter Fraser being present at the locus, they would have had necessary information and could have made something of it, in particular raising a reasonable doubt about who killed Mrs Irvine. Counsel could not explain why neither senior counsel at the trial chose to use the material about the presence of two men at the locus, a fortiori when the second appellant had an alibi from 8.30 am onwards. It was possible that tactical decisions had been made. But counsel required the necessary material in order to make tactical decisions and to decide what cross-examination to pursue. There were tensions between the decisions in Holland v HM Advocate 2005 SC (PC) 3 and McInnes v HM Advocate 2009 JC 6, 2008 SLT 941 2008 SCCR 869 (recognised, for example, in Leverage v HM Advocate 2009 SCCR 371), but the court was invited meantime to apply the less stringent test in Holland, as McInnes had been appealed to the Supreme Court. Thus the overarching test in the context of disclosure was whether there had been a fair trial: Lord Rodger of Earlsferry at paragraphs [82] to [84] of Holland. The correct focus was upon the loss of opportunity: cf Hogg v Clark 1959 JC 7, 1959 SLT 109. The result in the present case was that there had been a breach of the right to a fair trial: cf Holland, Lord Hope at paragraphs [33] to [35].

[47] Counsel contended that there was no need to rely upon either a fresh evidence argument, or an argument based on Anderson v HM Advocate 1996 JC 29, as there had been an admitted breach by the Crown of its duty of disclosure, and that was sufficient in itself.

Misdirection on corroboration (Ground 2)

[48] Ground 2 states:

"The directions given at page 29 [of the charge] were misconceived. They were apt to undermine the principle of corroboration which the jury were bound to apply. In any event the directions suggested that the jury could convict by applying a lesser standard than was required."

Counsel submitted that it was a misdirection to advise the jury as set out in paragraph [33] above. Reference was made to Fox v HM Advocate 1998 JC 94, 1998 SCCR 115. In a circumstantial case, the traditional direction referred to a cable analogy. The direction criticised was crucial in the present case, where the jury were being invited to draw inferences from circumstantial evidence, including inferences about concert.

The trial judge and the two defence witnesses (Ground 4)

[49] Ground 4 is in the following terms:

"The appellant relied upon a special defence of alibi. Margaret Marie Dixon and Kevin Donald were witnesses called upon by the Crown who gave evidence which tended to exculpate the appellant. The trial judge interrupted their evidence and in the presence of the jury admonished them in respect of the consequences of not telling the truth. In addition in respect of said Kevin Donald, at the conclusion of his evidence, again in the presence of the jury, the trial judge instructed said witness to remain in court as he was not excused. In the circumstances the trial judge may have conveyed the impression to the jury that there was reason not to accept the evidence of either witness.

In any event the well-informed observer would have had a basis for concluding that the trial judge had formed an unfavourable impression of their evidence. Since such evidence was central to the appellant's defence it was critically important not to convey such an impression to the jury.

In the circumstances justice was not seen to be done."

[50] Counsel for the second appellant could not contradict the information contained in the trial judge's report, in particular that any admonitions relating to the consequences of not telling the truth were given outwith the presence of the jury. Accordingly that aspect of the appeal was not insisted upon. However there had been interjections in the witnesses' evidence, as described by the trial judge. The witnesses had been called by the Advocate depute, who had then sought to undermine them and who had ultimately invited the jury to disregard their evidence as incredible and unreliable. Counsel submitted that the trial judge's interventions gave the impression that the judge had formed an adverse view of those witnesses. In Kevin Donald's case, that impression was compounded by the fact that he was not released from his citation. Reference was made to Hutchison v HM Advocate 1983 SCCR 504 and Hogg v Normand 1992 SCCR 26. The question was whether prejudice was likely to have been caused by these events. Justice had not only to be done, but to be seen to be done. Thus the matter had to be judged from the point of view of an objective reasonable observer: would the circumstances create in the mind of a reasonable man an apprehension that the second appellant's case had not properly been considered. In a case such as the present, dependent upon circumstantial evidence, with a misdirection about corroboration, and cumulative interventions in relation to the two defence witnesses, it was submitted that prejudice had occurred, leading to a miscarriage of justice.

Second appellant interviewed by the police without assistance from a solicitor

[51] Counsel drew attention to Grounds 8 and 9, concerning the fact that the second appellant "did not have the opportunity to consult with a solicitor before being interviewed, nor was a solicitor present during that interview". Counsel reminded the court that such an argument, based upon the decision Salduz v Turkey (2008) 49 EHRR 19, was about to be presented before a seven-judge bench in the appeal HM Advocate v McLean. He accordingly sought to continue Grounds 8 and 9 for future argument.

Final submission

[52] Counsel invited the court to conclude that a miscarriage of justice had occurred as a result of all or any of the grounds argued, and that the second appellant's conviction should accordingly be quashed.

Submissions for the Crown

Circumstantial evidence

[53] The Advocate depute referred to the evidence led on behalf of the Crown, outlined to some extent in paragraphs [3] to [24] above, and submitted that the circumstantial case against each appellant was sufficient.

The Crown's non-disclosure of Sheena Orr's police statements

[54] The Advocate depute pointed out that two experienced senior counsel had information about the sighting of two men. Counsel had used their judgment and had decided that the sighting was of no consequence. It had always been open to the defence to challenge the time of death, even without the name Peter Fraser, although it was not obvious what was wrong with the Crown's medical and scientific evidence fixing the death at about 8 am. It was debatable whether the name Peter Fraser would have been helpful to the defence, bearing in mind (a) the fact that the appellants had Special Defences of Alibi, and would not necessarily wish to use a further Special Defence of Incrimination; (b) Peter Fraser actively denied being in Barward Road at the relevant time, and police investigations supported his denial; and (c) the DNA on Mrs Irvine's pinkie had been checked for the purposes of the appeal, and found not to be Peter Fraser's. In the Advocate depute's submission, an attempt to present a hopeless incrimination could be very damaging to a defence case. Thus it was not obvious that the additional information would have been deployed in the appellants' defence.

Misdirection on corroboration

[55] The Advocate depute submitted that no error was detectible in the trial judge's directions on corroboration, read as a whole.

The judge's treatment of two defence witnesses

[56] The Advocate depute submitted that what occurred in court called for some action on the part of the judge. What the judge did was proper and appropriate, and did not convey any message to the jury. Moreover in his charge at page 21, the judge emphasised to the jury that it was not for him to give them any impression about what he thought about the evidence.

Discussion
Circumstantial evidence

[57] The case made against each appellant was a circumstantial one, with some elements of special knowledge.

[58] Authorities relating to circumstantial evidence were reviewed in Al Megrahi v HM 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 concurrence of testimony, and the inferences drawn by the jury when viewing the circumstances as a whole.

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. 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.

[59] Special knowledge may be demonstrated where, in the course of making a statement, a person provides factual information or circumstantial details as to how a crime was committed of which he had no reason to be aware unless he had been involved in the crime. Special knowledge may provide a strand of circumstantial evidence which the jury would be entitled to take into account: Wilson and Murray v HM Advocate 1987 SCCR 217; 2009 SCL 1047; MacDonald v HM Advocate 1987 SCCR 581; Moran v HM Advocate 1990 SCCR 40. The existence of gossip and rumour is a further factor to be taken into account, but that factor does not necessarily prevent the information from being treated as special: cf Lord Hunter at page 20 of McAvoy v HM Advocate 1983 SLT 16.

[60] Further, evidence relating to an accused's behaviour and comments following upon the occurrence of a crime may be relevant when assessing the guilt or innocence of that accused: O'Donnell v HM Advocate (unreported) 2004 XC489/03, Lord Justice Clerk at paragraph [36]; Gardiner v HM Advocate 2007 SCCR 379 paragraph [25]; McArthur v HM Advocate (unreported) [2006] HCJAC 83 at paragraph [36]; and Dickson on Evidence Volume I page 74 paragraph 94.

[61] Against that background, the evidence led by the Crown entitled the judge, in our opinion, to repel the submissions of no case to answer. Further the evidence entitled the jury to return the verdicts they did against the appellants. The jury were entitled to accept parts of the evidence, to reject other parts, and to draw inferences from the evidence which they accepted.

[62] In relation to the time of death, the jury were entitled to rely upon the evidence outlined in paragraph [6] above, and to conclude that Mrs Irvine died at about 8 am on Sunday 28 September 2003. No evidence or submissions seeking to undermine that time was put before the jury.

[63] In relation to the question whether the first appellant was involved to any extent, the evidence upon which the jury were entitled to rely included the first appellant's invitation to David McCormack two days before the murder to participate in theft by housebreaking; a possible sighting of the first appellant outside 21 Barward Road the day before the murder, acting in a way which gave rise to suspicion; on the basis of Alison Rowan's evidence, the first appellant's return home to 21 Knowehead Road, Hurlford, at 11 am on the day of the attempted robbery and murder whereupon he was physically sick, which the jury would be entitled to construe as a physical reaction to what had just occurred; following upon that Sunday, the first appellant told David McCormack details of what happened "in the old woman's house" (see paragraph [11] above) which the jury were entitled to conclude were not provided by Colin Miller (as claimed), thus giving rise to an inference that the first appellant must have been present when Mrs Irvine was suffering intimidation and/or violence; the first appellant impliedly boasted to Martin Robertson that he (the first appellant) had committed the crime; the first appellant told Andrew Hay certain details about the crime (outlined in paragraph [14] above), claiming "I just got telt", but the jury were entitled to conclude that the first appellant's knowledge was first-hand, not second-hand, and that the name "Smith" was false; the first appellant told Detective Constable Strickland that he had not left the house during Saturday night and Sunday morning and that he had heard details of the murder on the radio on Sunday morning, whereas no details were released to the media until the following Monday morning (again giving rise to the inference that the first appellant acquired first-hand knowledge of the crime); the first appellant gave Detective Sergeant Lorimer details of what had happened including a commotion, Mrs Irvine's refusal to tell where the money was, and then physical violence being inflicted upon Mrs Irvine including tying her up (see paragraph [15] above) which the first appellant claimed he was told by Andrew Hay, while Mr Hay denied giving him any details about the crime, thus giving rise to an inference that the first appellant must have been present during the events he described; the first appellant dyed his hair following the event and told his friend Hayden McGonigle that he had done so because of "DNA", giving rise to a possible inference that he was attempting to disguise himself or cover his tracks in some way; the first appellant complained to Mr McGonigle that the second appellant had done something wrong during the "turn" he had set up; and finally Edward O'Brien's description of the first appellant's demeanour and behaviour during October 2003 as gaunt and on edge, and keeping a low profile. On any occasion when the first appellant referred to the second appellant as being involved in the crime, if the jury concluded that the second appellant had indeed been involved, the first appellant's knowledge of that fact was a further circumstance which the jury could take into account.

[64] In relation to the question whether the second appellant was involved to any extent, the jury were entitled to reject his alibi. The jury were then entitled to take into account the fact that the second appellant had set up a false alibi for the time in question: cf Bovill v HM Advocate 2003 SCCR 182. In addition, the jury were entitled to take into account the fact that the second appellant often stayed with Lee Sheville and Antoinette Wallace at Portland Brae, Hurlford; Hurlford was connected to Galston by a pedestrian route via path, field, and disused railway line, measuring about 2 miles, which could be walked in under half an hour, and run in just under 15 minutes; according to Mr Sheville and Miss Wallace, the second appellant left their house at Portland Brae, Hurlford, at 9 pm on the evening before the murder and returned to their house at about 8.30 am on the day of the murder; on his arrival the second appellant was sweating profusely and was soaking wet up to the knees, with wet and muddy trainers; he then scrubbed himself and his trainers with Dettol; he changed his clothes; he acted "hyper ... paranoid ... spooked"; he stared out of the window for about four hours and expressed a concern that the police might come; he subsequently told Mr Sheville and Patricia Cooper respectively that the first appellant had committed the murder; he told a patient at Crosshouse Hospital that he had been present when there was a murder, but he had not done it; he told Joseph Leiper that the first appellant had done the murder, and that he (the second appellant) had been present and had run away. On any occasion when the second appellant referred to the first appellant as being involved in the crime, if the jury concluded that the first appellant had indeed been involved, the second appellant's knowledge of that fact was a further circumstance which they could take into account.

[65] As for the nature and scope of the common criminal enterprise, the jury were entitled to take into account certain factors, and to draw certain inferences and conclusions, as follows:

1. The intention was to get into the house at 21 Barward Road and to find
and steal money or valuables. Many of the pieces of circumstantial evidence outlined above entitled the jury to draw that inference.

2. The participants either knew in advance that the occupier of
21 Barward Road was a frail elderly person, or the occupier's age and/or disability became immediately obvious on entering the hallway of the house and seeing the stair-lift and the Zimmer aid.

3. Rather than choosing to enter the house at a time when the occupier
might be in bed asleep (or at least out of the way), a Sunday morning at about 8 am was selected. On such a day, and at such a time, within a house of the type at 21 Barward Road, it was highly likely that the appellants would confront the occupier.

4. The switching off of the electricity at the mains, the unplugging of the
telephone in the hall, and the moving of the Zimmer so that it was out of reach of someone who had descended by the stair-lift, displayed not only an expectation of a confrontation with the occupier, but also an intention to terrify, immobilise, and isolate that occupier. The house would be suddenly plunged into darkness; any electrically-operated appliances (such as the stair-lift) would cease to work; the telephone in the hall would be cut off.

5. The signs of searching and rifling both upstairs and downstairs
demonstrated that the intruders were looking for money and valuables. The jury would be entitled to infer that such a search would cause additional distress and terror to the occupant. The jury would also be entitled to draw the inference that the persons searching did not know precisely where to look or what they would find, and that they demanded such information from the occupier. As other witnesses had given evidence of Mrs Irvine's strong-willed nature, and as Mrs Irvine was found to have a broken rib, head injuries, bruising to her hands, and her dentures dislodged, the jury would be entitled to infer that the searchers (or one of them) had tried to extract that information from her, possibly by threats initially, and ultimately by using physical violence.

6. The circumstantial evidence (including each appellant's comments,
reactions, and behaviour during the hours, days and weeks following the murder) entitled the jury, in our view, to conclude that both appellants were present when Mrs Irvine was questioned about the whereabouts of her money and valuables; assaulted such that she suffered a broken rib, head injuries and bruises; tied with her hands behind her back; gagged by having a duster forced down her throat; and thrown face-down onto the bed, to be left in a state and in a position which would obviously cause her respiratory difficulties.

[66] In the result, in the light of those inferences and conclusions, the jury would in our opinion be entitled to reach the view that the common criminal enterprise was a mixture of antecedent (or pre-planned) concert and spontaneous concert: cf the observations in paragraphs [27] and [29] of McKinnon v HM Advocate 2003 JC 29, 2003 SCCR 224:

"It is, of course, well-established that where a number of persons act together in pursuance of a common criminal purpose, each of them is criminally responsible for a crime which is committed in pursuance of that purpose, regardless of the part which he or she played, provided that the crime is within the scope of that common criminal purpose. This holds good whether the concert is antecedent or spontaneous ... The common purpose in a particular case may change over time and acquire a more serious character (Coleman v HM Advocate)."

[67] In the present case, even if the jury concluded that the initial plan was to enter a house (if necessary by breaking in) to steal money and valuables, they were entitled to take the view that the initial plan was further developed when the day and time were chosen: selecting a Sunday at about 8 am meant that it was highly likely that there would be a confrontation with the householder, with related intimidation and perhaps violence. Thus the common criminal enterprise was taking shape, and was more suggestive of a robbery rather than an opportunistic theft or theft by housebreaking. The jury were also entitled to reason that the nature of the common criminal enterprise as robbery was further confirmed when 21 Barward Road was chosen, as the appellants must either have been aware from local knowledge that the occupier was frail and elderly, or must immediately have been alerted to the age and/or disability of the occupier by the stair-lift and Zimmer aid in the downstairs hallway.

[68] The appellants' actions on entering the house (switching off the electricity at the mains thus disabling inter alia the stair-lift, disconnecting the hall telephone, and moving the Zimmer to make it inaccessible to the user of the stair-lift) might be considered by the jury to be, to some extent, spontaneous concert, with the robbers reacting to circumstances as they arose. But, whether pre-planned or spontaneous, those steps further entitled the jury to draw the inference that the common criminal enterprise was robbery, as a confrontation with the occupier was being catered for and a degree of prevention and intimidation was to be used (including, for example, preventing the occupier from attempting to escape or from summoning help). The subsequent determined searching of the house on both floors, including the bedroom where Mrs Irvine had been left in bed by her carer and where her body was ultimately found, coupled with evidence about Mrs Irvine's strong-willed nature and the injuries she suffered, would entitle the jury to conclude that the common criminal enterprise of robbery was being carried out (either in accordance with a plan, or spontaneously) with a degree of wicked recklessness such that the robbers did not care whether Mrs Irvine lived or died, as it was foreseeable that any elderly and/or disabled person subjected to such an ordeal might not survive: cf Gordon, Criminal Law (3^rd ed) paragraph 23.24 and authorities cited in footnote 27: " ... what would be slight violence in the case of a healthy adult may be foreseeably fatal violence in the case of a child or a frail old man".

[69] But if there were any doubt in the jury's mind about the degree of wicked recklessness being displayed in the execution of the common criminal enterprise, they would be entitled to dismiss that doubt when taking into account the fact that both appellants were present (see paragraphs [11], [12], [14], [15], [20]-[22] and [24] above) when Mrs Irvine was tied up, with her hands behind her back, a duster forced down her throat presumably to stifle her screams, and left face-down on the bed in a state and in a position which obviously compromised her ability to breathe. The jury would be well entitled to conclude that such behaviour demonstrated the wicked recklessness necessary for murder. In other words, the jury would be entitled to conclude that each of the appellants had actively associated himself with a common criminal purpose which carried the obvious risk that human life would be taken: cf McKinnon v HM Advocate 2003 JC 29, 2003 SCCR 224. Thus it would not matter which of the robbers physically laid hands on Mrs Irvine, which one hit her, or tied her up, or stuffed a duster into her mouth and throat, or threw her face down onto the bed. Each would be responsible for what had occurred in the course of the carrying out of the common criminal enterprise.

[70] In the result, we are not persuaded that there was an insufficiency of evidence in respect of either appellant.

The non-disclosure of Sheena Orr's police statements

[71] Counsel for the appellants accepted that there was no need to rely upon arguments relating to fresh evidence or defective representation, as there had been an admitted breach of the Crown's duty of disclosure. We agree, and accordingly focus upon the non-disclosure and its effects.

[72] In the Supreme Court in McInnes v HM Advocate [2010] UKSC 7 (issued after the hearing in the present appeal), Lord Hope observed:

"19 Two questions arise in a case of this kind to which a test must be applied. The first question is whether the material which has been withheld from the defence was material which ought to have been disclosed. The test here is whether the material might have materially weakened the Crown case or materially strengthened the case for the defence: HM Advocate v Murtagh ... Applying the materiality test, all police statements of any witnesses on the Crown list must be disclosed to the defence before the trial: McDonald v HM Advocate paragraph 5.

20 The second question is directed to the consequences of the violation. A trial is not to be taken to have been unfair just because of the non-disclosure. The significance and consequences of the non-disclosure must be assessed ... The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict ...

24 The question which the appeal court must ask itself is whether, after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant's right, the jury's verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome - if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence ..."

Lord Rodger said:

"30 Of course, an appellant can always argue that, if his advocate had been armed with the statements, it is possible that he could have persuaded the jury to come to a different conclusion. But the law deals in real, not in merely fanciful, possibilities. So in cases like the present, an appellate court will only hold that a trial has been unfair and quash the jury's verdict as a miscarriage of justice if there is a real possibility that, if the statements had been disclosed, a jury might reasonably have come to a different verdict."

Lord Brown added:

"39 In the event of non-disclosure ... the trial is only to be regarded as unfair if in fact disclosure might have harmed the Crown or helped the defence to such an extent that in retrospect the defence can be shown to have lost a real possibility of acquittal ..."

[73] In the present case, the Crown presented the time of death as about 8 am. There were no submissions and no evidence challenging that timing. The first appellant had a pre-trial precognition from Mrs Sheena Orr, in which she described seeing two men at the locus at about 11 am. One man was standing in the driveway of 21 Barward Road, and the other man was emerging from the house. In that defence precognition, Mrs Orr gave a detailed description of the man in the driveway, and confirmed that she had been able to select his photograph from sheets of photographs shown to her by the police. The second appellant, for his part, had a pre-trial precognition from Mrs Orr in which she described seeing the men on a Sunday afternoon, but did not mention police photographs. The experienced senior counsel representing each appellant considered the information available and decided against pursuing any line of defence involving the presence of the two men at the locus at those times.

[74] In our view, the significance of Mrs Orr's evidence lay in the fact that it could be used to suggest to the jury that these two men, and not the appellants, were responsible for the murder. For that purpose, it was not in our view necessary for the defence to have an identification of either man. It was the sheer physical presence of two men other than the three accused at 21 Barward Road some time after 11 am (at the earliest, according to Mrs Orr's most recent appeal precognition) on the day of the murder which provided the defence with necessary material. On the basis of that material it was always open to the defence to consult with pathologists and other experts, and attempt to challenge the Crown presentation of the time of death in an endeavour to show that the death coincided more closely with the sighting of the two men. The defence could, if they so chose, have lodged a Special Defence of Incrimination referring to the two men (whose identities were to the defence unknown). Alternatively the defence could, without a Special Defence, put evidence of the sighting of the two men before the jury in order to raise a reasonable doubt. In that context, emphasis could have been placed upon the unidentified DNA on Mrs Irvine's pinkie, and the unidentified footprints outside the house. In the event, experienced senior counsel acting on behalf of each appellant (using their judgment and their assessment of the usefulness or otherwise of that evidence) chose not to use the sighting of the two men by Mrs Orr, no doubt for tactical reasons. Counsel were well entitled to make such a decision. But we are not persuaded that there was any real possibility of a different outcome had Mrs Orr's police statements been disclosed, thus giving the defence the name Peter Fraser. Indeed, bearing in mind (i) the evidence establishing the time of the murder as about 8 am; (ii) the nature and extent of the information relating to the sighting of two men in Mrs Irvine's driveway at some time between 11 am and noon; and (iii) the nature and number of pieces of circumstantial evidence implicating each appellant, we have not been persuaded that the identification of one of those men as Peter Fraser would have made such a difference to the defence position that the lack of that information deprived the appellants of a real possibility of acquittal. In the result therefore we are not persuaded that the non-disclosure of Mrs Orr's police statements resulted in an unfair trial for either appellant, or that a miscarriage of justice has occurred.

Alleged misdirection relating to corroboration

[75] The essence of corroboration is that evidence must come from at least two separate sources, the justification for the rule being the need to have a cross-check or support for a piece of evidence. The trial judge in his directions makes that clear. It is in our view accurate to explain to the jury that one strong piece of evidence can be corroborated by a less strong piece, and vice versa. It is not essential that a trial judge address the jury on any particular analogy, such as the cable analogy. Having carefully considered the directions on corroboration, read as a whole, it is our view that the jury were properly instructed, and that there was no misdirection.

The trial judge and the two defence witnesses

[76] Counsel for the second appellant accepted that the only warnings about the consequences of not telling the truth were administered outwith the presence of the jury. In so doing, the trial judge acted properly and cannot be faulted. The other interjections described by the judge in his report were in our view appropriate and necessary for the proper management of the case. At times, witnesses fail to listen to the question and to answer that question: they may have to be reminded to do so. Witnesses may have to be prevented from giving hearsay evidence. Witnesses may have to be requested not to read a document until asked to do so. Such interventions are part of normal court procedure, and are necessary for the proper conduct of a trial.

[77] Finally, we do not accept that a request to a witness who has concluded his evidence to take a seat in court with advice that he is not excused from his citation would carry any negative implication for a jury. Many inferences might be drawn, one being for example the inference that the witness is required for some further duty. In our view there is no reason to believe that a jury would draw a sinister inference from this instruction.

Decision

[78] For the reasons given above, we refuse the Grounds of Appeal argued (or not insisted upon) before us, namely Grounds 4, 5, and 1A for the first appellant, and Grounds 1, 2, 3, 4, 5 and 7 for the second appellant. In relation to the second appellant's motion to have his Grounds 8 and 9 continued, we note that those grounds are prima facie without merit, standing the seven-judge decision in HM Advocate v McLean 2010 SLT 73, 2010 SCCR 59. However we understand that the point in issue in McLean is to be argued in the Supreme Court in May 2010 (Cadder v HM Advocate). For that reason, we shall continue the second appellant's Grounds 8 and 9.

[79] In the result, we refuse the first appellant's appeal against conviction. We continue his appeal against sentence to a date to be fixed. In respect of the second appellant, we continue Grounds 8 and 9 of his appeal against conviction to a date to be fixed. We also continue his appeal against sentence (Ground 6) to a date to be fixed.