APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lady Paton Lord Brailsford	[2010] HCJAC 59 Appeal No: XC139/09 OPINION OF THE COURT delivered by Lady Paton in Appeal against Conviction by PAOLO PARRACHO Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: N Murray QC, Reilly; McClure Collins; Barony Practice

Respondent: Bain QC, Advocate depute; Crown Agent

11 June 2010

Introduction

[1] On 23 January 2009, the appellant was convicted of murder. The jury's verdict was unanimous. The charge was in the following terms:

"On 23 April 2008 at Ground Flat Left, 24 Waverley Road, Foxbar, Paisley you did assault Tracey Scott, formerly residing there and did repeatedly strike her on the head with a blunt object or similar instrument to the prosecutor unknown, to her severe injury, did rob her of £483.90 or thereby of money and you did murder her."

The appellant appeals against conviction. The Note of Appeal contains three grounds: first, insufficiency of evidence; secondly, a verdict which no reasonable jury properly directed could have returned (section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995); and thirdly, the court's error in permitting the desertion pro loco et tempore of the first trial diet following upon a defence submission of "no case to answer", and thereafter appointing a new trial diet in terms of section 81(2) of the 1995 Act.

[2] At the appeal hearing the second ground was not insisted upon. In relation to the third ground, as the principal decision criticised was made by three judges (the trial judge having relied upon section 1(5) of the 1995 Act) it was a matter of agreement that if a review of that decision were required, that ground of appeal should be remitted to a bench of five judges. Accordingly the only ground argued before us was the first ground.

Background

[3] The evidence led by the Crown, as summarised in the judge's report, established that Tracey Scott ("the deceased") lived alone in a ground floor flat at 24 Waverley Road, Foxbar, Paisley. She worked as a kitchen porter at Glasgow Airport. She had previously worked at a restaurant in Paisley named Antica, where she met the appellant, then working as a waiter. They began a sexual relationship. They did not go out socially together, but the appellant would visit the deceased at her flat. The deceased did not allow strangers into her flat, and was careful to lock her door. However the appellant was a welcome visitor. In a statement given to the police on 8 May 2008, the appellant explained how he would call on the deceased:

"I would just walk past her house and if her light was on I would just knock her door. Tracey would say 'Who is it?' and I would say 'It's me, Paulo', and Tracey would let me in."

The deceased smoked cigarettes, about twenty per day. Her preferred brands were Richmond Kingsize, Mayfair, and Solo. The appellant also smoked cigarettes. His preferred brand was Marlborough, or Marlborough Lights.

[4] The deceased received tips, usually coins, at work. She took the coins home and stored them in large tins such as Maggi tins (which had previously contained a mix for demi-glace). She kept the tins in her living-room, some situated under a black table against the chimney. In about November or December 2007 the deceased told her sister Pamela Scott that she had collected about £800 in twenty pence coins. The deceased was understood to be saving up to buy two sofas and to pay for a holiday with her friend Michelle Mains.

[5] In early 2008 the appellant was working as a labourer on a building site. He was in financial difficulties. His partner, Geraldine Taylor, had left the matrimonial home at 33 Foxbar Drive, Paisley, on 31 August 2006, and he was in arrears with mortgage payments. He also owed a debt of about £400 to a work-mate William Traill. He was very worried about that debt, and subsequently told the police that if it had remained unpaid, he would have woken up a dead man.

[6] On Saturday 26 April 2008 the deceased's sister Pamela Scott had been unable to make contact with the deceased since Wednesday 23 April 2008, the last communication being a text message from the deceased at 15.40 pm that day. Miss Scott therefore went to the deceased's flat with Michelle Mains. When there was no response, Miss Scott kicked in the front door. The door gave way relatively easily, from which they concluded that only the Yale had been engaged. The keys to the flat were in the mortice lock inside. The deceased was found dead on the sofa in the living-room. She had suffered multiple blows to the head, resulting in a fractured skull, lacerations, and abrasions. There was blood on the furniture, furnishings, walls and ceiling. The police were called. Items under the black table were found to have been disturbed and pulled out. Tins had been left lying open and empty. Bank notes and coins were found in other locations. A sum of £325.44 (of which at least £200 was in notes) was found in the deceased's handbag behind the couch. Coins amounting to £356.34 were found in other containers. Two mugs spotted with blood and containing the dregs of some drink were found near the body. A DNA profile taken from one mug matched that of the appellant. A plastic carrier bag lying near the body contained eleven cigarette ends, ten of the Solo brand, and one of the Marlborough brand. The Marlborough cigarette end bore the appellant's DNA. In the bathroom, the toilet seat had been left up, suggestive of a male visitor. (The appellant later told the police:

"When I was in a relationship with Tracey, she always insisted that I put up the toilet seat before I had a pee so I wouldn't get any on the seat.")

The hot water tap in the bathroom had been left running. The appellant's DNA was found on a blood-stained towel in the bathroom. In the hall, near the front door, a Boots plastic carrier bag lay on the floor. The appellant's DNA was found on the handle of the Boots bag. The bag contained a blood-stained cushion. The appellant's ex-partner Geraldine Taylor gave evidence that the cushion looked like one which her mother had given her and which she had left behind at Foxbar Drive.

[7] During subsequent police inquiries, it was ascertained inter alia that (i) as at April 2008, the deceased had not yet purchased the furniture or holiday for which she was saving. (ii) At about 23.00 pm on Wednesday 23 April 2008 the appellant made five or six telephone calls to William Traill's mobile phone, leaving a voice-mail message asking Mr Traill to call him back. Mr Traill did not return the calls. (iii) Later that Wednesday, at about 23.39 pm, the appellant was filmed by CCTV camera at an ASDA supermarket in Linwood. He was shown to have used a Coinstar machine to exchange a large quantity of coins for about £445 in bank notes. The coins included 1,894 twenty pence coins, and 1,191 five pence coins. (iv) On Thursday 24 April 2008, the appellant repaid most of the debt which he owed Mr Traill.

[8] At his trial, the appellant tendered a Special Defence of alibi. He did not give evidence on his own behalf, but there was some evidence relied upon by his counsel to support the Special Defence.

Sufficiency of evidence: submissions for the Crown

[9] Both the Advocate depute and counsel for the appellant referred to the evidence led at the second diet of trial. While the appellant's counsel was the first to address the appeal court, it is convenient to record the Advocate depute's submissions at the outset as they give an outline of the circumstantial case relied upon by the Crown.

[10] The Advocate depute accepted that the Crown case was wholly circumstantial. The Crown relied in particular upon 12 areas of evidence.

[11] The deceased's tips: The evidence established that the deceased could earn tips in coins ranging from £3.50 to £10 per day. By the time of her death, she had not bought the furniture nor paid for a holiday. The inference which the Crown invited the jury to draw was that the deceased had saved more coins after telling her sister in November/December 2007 that she had £800 in twenty pence pieces. Thus by April 2008, her store of coins would be well in excess of £800, with a large number being twenty pence coins. Significantly, when the deceased was found dead, the coins recovered in her house totalled less than £400. Only a small proportion, namely £70 to £140, comprised twenty pence coins. Tins of the type used for coins had been left lying open and empty. The Crown therefore invited the jury to draw the inference that a large number of coins had been stolen.

[12] Signs of searching: The area in which the deceased kept her containers of coins had been disturbed. Items had been pulled out from under the black table. Tins had been moved and emptied. Pieces of paper which were not blood-stained were found lying on top of pieces of paper which were blood-stained. The Crown invited the jury to draw the inference that the area had been searched and rifled after violence had been inflicted upon the deceased.

[13] The deceased's visitors: The deceased would not let strangers into her home. The appellant was not a stranger, but was a welcome visitor. There were signs that a male had been in her company in her flat at the time of her death. In particular, the toilet seat had been left up, when there was evidence that the deceased (who lived alone) preferred the seat to be left down.

[14] The two mugs: Two mugs were found near the body, one heart-shaped (which, according to the deceased's sister, was the deceased's preferred mug), and the other with an "After Eight" motif. Each mug contained dregs, but no heavy dust covering. Evidence from the deceased's sister established that if the deceased wished to drink a second cup of tea, she would use the same mug rather than take a fresh mug. A DNA swabbing was taken from the rim of the After Eight mug. A profile was obtained containing the DNA of two individuals. The minor source of DNA matched the DNA profile of the appellant. There was evidence that DNA could be removed by washing a mug. The Crown invited the jury to draw an inference from the evidence referred to in this and the preceding paragraph that the appellant had visited the deceased on the day of her death, had drunk a mug of tea in her company, had used the toilet, and had later lied when he claimed (to workmates Traill and Healey, and to the police) that he had not seen the deceased for some weeks or months prior to her death.

[15] The cigarette ends: The deceased's sister gave evidence that the deceased would put her cigarette ends in an ash-tray. She would then empty the ash-tray into a carrier bag kept at the side of her favourite chair. Finally, on a daily basis, she would deposit the bag containing the cigarette ends in the bin. As already noted, a plastic carrier bag lying near the body contained eleven cigarette ends, ten of the Solo brand, and one of the Marlborough brand. The Marlborough cigarette end bore the appellant's DNA. The Crown invited the jury to draw the inference that the appellant had smoked a cigarette in the company of the deceased on the day she died, and that he later lied when he claimed that he had not seen the deceased for some weeks or months before her death.

[16] What the appellant told the police: Initially the appellant told the police that he could not recall what he had been doing on the evening of 23 April 2008. Subsequently he said that he had watched the Barcelona/Manchester United football match in his own home. The match in question was shown on 23 April 2008 by Sky television, with a kick-off at 19.45 pm and the programme scheduled to end at 22.15 pm. The appellant did not have Sky television in his home, but the deceased did. The appellant's neighbour Sean Robinson also had Sky television. He gave evidence that the appellant asked to watch the Barcelona/Manchester United match in his (Mr Robinson's) home: however Mr Robinson did not invite him. The following day, the appellant told Mr Robinson that he had watched the game in a pub. Mr Robinson thought that strange, as the appellant did not frequent pubs (a fact confirmed by the appellant in interview with DS Gordon Murray). On the basis of these pieces of evidence, the Crown invited the jury to draw the inference that the appellant had watched the match in the deceased's flat on the evening of 23 April 2008.

[17] Blood-stained cushion and appellant's DNA: When the police arrived at the deceased's flat, a Boots plastic carrier bag was found lying on the hall floor near the front door. The bag contained a blood-stained cushion which the appellant's ex-partner Geraldine Taylor said looked like a cushion her mother had given her. When she and the appellant separated, she had left the cushion behind at 33 Foxbar Drive. The Boots bag was found to have the appellant's DNA on a handle. The appellant's DNA was also found on a blood-stained towel in the bathroom, where the hot water tap had been left running. The Crown invited the jury to draw inferences, namely (i) that the cushion might be perceived to be linked to the appellant; (ii) the deceased had bled heavily over the cushion; (iii) the cushion was in a bag in the hall because the intention had been to remove the cushion from the flat; (iv) the appellant's DNA on the bag handle suggested that he had handled the bag. (v) the appellant had used the towel in the bathroom.

[18] The appellant's financial position: The evidence established that the appellant could not meet his outlays. He was in arrears with his mortgage payments; he was living in straitened circumstances; he owed Mr Traill money which, as far as he was concerned, he had to repay or he "would wake up dead". On the morning of Wednesday 23 April 2008 the appellant did not have enough money to repay the debt. However by the evening of 23 April, he had sufficient money, and made several telephone calls trying to contact Mr Traill. At about 23.45 pm he exchanged almost £400 in twenty pence pieces for bank notes. Subsequently he told police that he had saved coins for about two years in a special bottle: however his ex-partner Geraldine Taylor said (in evidence-in-chief) that he had acquired that special bottle after the death of the deceased, although she was less clear in cross-examination. Moreover when the bottle was given to the police, it contained only a few coins. The Crown invited the jury to draw the inference that the appellant tried to use the bottle to provide an explanation for having saved so many coins, but in fact he had, in desperation, stolen the coins from the deceased in order to settle his debts, and in particular his debt to Mr Traill.

[19] The circumstances of the coin exchange: The appellant exchanged the coins late at night, having paid a taxi fare to travel to the ASDA superstore, and also a fee equivalent to 7.9 per cent of the value of the coins. The appellant had left work early that day, and if at that time he had possessed a large number of saved coins, he could have taken them to a bank and avoided paying those fees. The Crown invited the jury to draw the inference that the appellant had no money of his own until the evening of 23 April 2008; and also that the coins had come from an illegitimate source, otherwise the appellant might have been expected to take them to a bank.

[20] The appellant's failure to tell the police about exchanging coins: When interviewed by the police on 30 April 2008 as a potential witness, the appellant tried to recall his movements on 23 April 2008, but did not tell the police that he had been to the ASDA supermarket. On 8 May 2008, the appellant was again interviewed, and again made no mention of ASDA or the Coinstar machine. On 4 June 2008 the appellant yet again made no mention of ASDA or Coinstar. When shown CCTV film from ASDA, he confirmed that he had exchanged coins but told the police that he had saved the coins in a special bottle. The Crown invited the jury to find it significant that the appellant was reluctant to mention his visit to ASDA to exchange coins for notes, particularly when the visit might be thought to be an important event in the life of a man who was having financial difficulties. The Crown also pointed out that the appellant signed the ASDA Coinstar slip in the name of his brother.

[21] The green satchel: The appellant used to go to work with a green satchel in which he kept his sandwiches. Following upon the deceased's death, the appellant told the police that he had not used the bag for months. He said that he had washed it, and that it was somewhere in his house but he did not know where. He denied having it with him on 23 April 2008. However the CCTV film taken from ASDA showed the appellant carrying the green satchel. When the appellant viewed that film, he acknowledged that it showed himself with the green satchel. Yet when the police searched the appellant's home on 4, 5 and 6 June 2008, the satchel could not be found. The Crown invited the jury to infer that the satchel might have carried some forensic link with the murder locus, and that the appellant had deliberately disposed of the satchel.

[22] The appellant's change in appearance: The evidence established that prior to the death of the deceased, the appellant wore his dark hair long. Following upon the death, the appellant appeared with what was almost a close-shaven head, which made him look very different.

[23] Conclusion: a strong circumstantial case: The Advocate depute submitted that there was no one piece of evidence pointing to the guilt of the appellant. But when all the adminicles of evidence were looked at together, there was a coherence and a pattern. The trial judge was correct to conclude that there had been ample circumstantial evidence. Reference was made to Al Megrahi v HM Advocate 2002 SCCR 509 paragraph [31] et seq; Fraser v HM Advocate 2008 SCCR 407 paragraphs [153], [161], [230], and [234]; Mitchell v HM Advocate 2008 SCCR 469 paragraph [106]. In conclusion, the Crown's position was clear: there were a number of individual pieces of circumstantial evidence which, in isolation, were not necessarily incriminating. However when put together and judged as a whole, a powerful circumstantial case emerged. The pieces of evidence fitted together to form a real and convincing pattern, capable of supporting the inference which the jury drew, namely that the deceased murdered the appellant against a background of robbery.

Sufficiency of evidence: submissions for the appellant

[24] Counsel for the appellant rehearsed in some detail the evidence as noted in the judge's report, and submitted that it was insufficient to identify the appellant as the perpetrator of the crime. The Crown case was based wholly upon circumstantial evidence, and the evidence was simply insufficient. The trial judge should have sustained the defence submission of "no case to answer".

[25] While there was evidence of a suspicious nature, there was not that cogency within the strands of evidence to entitle the judge to put the case before the jury. It was accepted that there was material raising significant suspicion; but there was not the sufficiency of cogent material proving that the appellant was responsible for the robbery and murder. The adminicles of evidence relied upon by the Crown were capable of a number of interpretations, more so in the present case than in other cases. The jury were being asked to "add two and two and to get five". The quality of the evidence had to be assessed, not merely the quantity. It was accepted that the facts set out in the judge's report were accurate, and that the law relating to circumstantial evidence was as explained in Al Megrahi and other well-known authorities. But the evidence had been insufficient to support the charge of murder and robbery against the appellant.

Discussion

[26] 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.

[27] In the present case, we accept that the Crown was unable to rely upon any one piece of evidence pointing directly to the guilt of the appellant. But we agree with the Advocate depute that the various pieces of evidence, if accepted and viewed as a whole, entitled the jury to be satisfied beyond reasonable doubt that the appellant was guilty as libelled.

[28] In particular, we consider that the evidence led would entitle a jury to draw the following inferences and conclusions:

[29] The appellant was in financial difficulties and was driven to take certain actions by a fear of the repercussions if he did not manage to pay, inter alia, the debt owed to Mr Traill. The appellant was on intimate terms with the deceased, and often visited her in her flat. He knew that she had considerable savings in coins in her flat. While the deceased was careful to keep her door locked, and did not let strangers into her flat, it was an easy matter for the appellant to gain entry by simply letting her know that he was standing at the front door. Once inside, the appellant joined the deceased in drinking a mug of tea and smoking a cigarette. They may also have watched some or all of the Barcelona/Manchester United match on the deceased's Sky television. At some stage, the appellant used the WC in the bathroom. Having chatted with the deceased, drunk tea, smoked a cigarette, and watched the match, the appellant then launched a vicious attack on his unsuspecting victim, hitting her on the head with such force that she died. He then took a large quantity of coins from some of her savings tins. He used a towel and hot water in the bathroom to try to remove some bloodstains. He took the blood-stained cushion which might be thought to link him with the deceased and the locus, and placed it in a plastic carrier bag on the hall floor, intending to remove it from the flat. He then left the flat without turning off the hot water, and forgetting to pick up the blood-stained cushion. He thereafter telephoned Mr Traill several times to try to let him know that he could repay the debt. He took a taxi to the Coinstar machine in ASDA and exchanged almost £400 of twenty pence coins, together with other coins, for notes. He repaid Mr Traill the following day. He was reluctant to tell the police about his visit to Coinstar as he realised that his exchanging such a quantity of coins on the day of the deceased's murder could be regarded as highly significant, bearing in mind the way in which the deceased saved her tips. He was concerned that his green satchel may have been contaminated during the attack on the deceased: he accordingly disposed of the satchel, telling the police (wrongly) that he had not used it on 23 April 2008, he had not been using it for some months and did not know where in his house it was, although he had to concede that the CCTV film from ASDA showed him carrying that very satchel on the night of the deceased's death.

[30] Particularly significant features in the evidence which, in our view, the jury would be entitled to rely upon included:

(i) The appellant's anxiety about his debt to Mr Traill, coupled with his inability to repay it until late on 23 April 2008.

(ii) The evidence of Pamela Scott that the deceased had saved about £800 in twenty pence coins by November/December 2007; the apparent lack of expenditure by the deceased on, for example, furniture or holidays; the relatively small number of twenty pence coins found in the deceased's flat on 23 April 2008, and the large number of twenty pence coins exchanged by the appellant late at night on 23 April 2008.

(iii) The appellant's DNA, found on one of the two mugs (both spattered with blood); on the cigarette end in the plastic bag which had not yet (as was the deceased's daily habit) been placed in the bin; on the handle of the plastic carrier bag containing the blood-stained cushion; and on the blood-stained towel in the bathroom.

(iv) The many inaccuracies in the information given by the appellant to neighbours, workmates, and the police: for example, the statement that he had not seen the deceased for some weeks or months before her death; the claim that he had not used his green satchel for some months and had not used it on 23 April 2008; the failure to tell the police about his visit to Coinstar in ASDA.

[31] But there were, in addition, many other pieces of evidence which contributed to making a cogent circumstantial case against the appellant. In the result we are not persuaded that the trial judge erred in repelling the defence submission of "no case to answer".

Decision

[32] For the reasons given above, we refuse Grounds 1 and 2 of the Note of Appeal. We remit Ground 3 to a bench of five judges.