APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Osborne Lady Smith	[2011] HCJAC INFO24 Appeal No: NO.XC240/10 OPINION OF THE COURT delivered by LADY SMITH in APPEAL AGAINST CONVICTION AND SENTENCE by STUART DOCHERTY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: McConnachie, Q.C., Smith; Reilly Cassidy, Solicitors

Respondent: Cherry, Q.C., A.D.; Crown Agent

9 March 2011

Introduction

[1] On 25 March 2010, at the High Court in Glasgow, the appellant was convicted of the following charge:

"(1) on 31 January 2009 at Govan Road, Elder Street, Garmouth Street, Garmouth Gardens, Harhill Street and Crossloan Terrace, all Glasgow you STUART DOCHERTY did assault Mark Morrison, formerly residing at Flat 2/3, 53 Crossloan Terrace, Glasgow, chase him, knock him to the ground, seize hold of him, repeatedly strike him on the head and body with a knife, repeatedly punch and you did murder him;

you STUART DOCHERTY did commit this offence while on bail, having been granted bail on 9 October 2008 at Glasgow Sheriff Court."

He had earlier pled guilty to the second charge on the indictment which was in the following terms:

"(2) between 31 January 2009 and 31 July 2009, both dates inclusive, at Napier Place, Glasgow, and Glasgow International Airport, St Andrew's Drive, Paisley and elsewhere, having committed the crime of homicide and being conscious of your guilt in respect thereof you STUART DOCHERTY did:

(a) on 31 January 2009 at said Napier Place, Glasgow discard clothing you were wearing when you committed said crime into the River Clyde there; and

(b) between 31 January 2009 and 31 July 2009, both dates inclusive, at said Glasgow International Airport, St Andrew's Drive, Paisley flee to Spain using a passport in the name of your brother, Neil Docherty;

and all this you did with intent to conceal or destroy evidence in respect of said crime and to avoid detection, arrest and prosecution in respect of said crime and with intent to defeat the ends of justice and you did thus attempt to defeat the ends of justice;

you STUART DOCHERTY did commit this offence while on bail, having been granted bail on 9 October 2008 at Glasgow Sheriff Court."

The sentence imposed was one of life imprisonment with a punishment part of twenty years.

[2] Two co-accused, Michael Linning and Matthew Burns, had also appeared on the first charge but it having become clear that they did not participate in the knife attack on Mark Morrison, their pleas of guilty to assault were accepted by the Crown. on the penultimate day of the trial, after the close of the Crown case.

The Evidence

[3] The events which led to the death of Mark Morrison occurred on a Friday night and into the early hours of a Saturday morning in the Govan area of Glasgow. The appellant and Mark Morrison knew each other but there was hostility between them related, it seems, to enmity between rival gangs. A twenty first birthday party was held in the function suite at the Clyde Masters Snooker Club on Govan Road. The appellant attended the party.

[4] Mark Morrison had spent the afternoon and evening drinking. He was not at the party but some communication was made to him in the early hours of the morning which resulted in him leaving his home and going to the snooker club carrying a large machete type weapon. He arrived there shortly before 2am. There were people outside in Govan Road and a few people, including the appellant, still inside the snooker club. As the appellant emerged from the door of the club, Mark Morrison lunged at him with the machete and tried to attack him. The appellant was pulled back into the club and the door was locked to prevent anyone else gaining entry. A minor disturbance ensued outside in the street in the course of which Mark Morrison was dispossessed of the machete.

[5] Mark Morrison left Govan Road and went into Elder Street. There he had a confrontation with the two co-accused but no blows were exchanged. Mark Morrison then ran off through a couple of other streets, along a cycle path, across a football pitch and into the housing scheme where he lived. He was chased by a group of people including the co-accused and some people who had been outside the club at the time of the earlier disturbance.

[6] The appellant emerged from the snooker club after the disturbance there had ended and the street was quiet again. The group that had chased after Mark Morrison were nowhere to be seen. CCTV footage showed that the appellant then spoke to a person in the street who pointed in the direction in which the chasing group had gone. The appellant then ran off in that same direction.

[7] The group chasing Mark Morrison caught up with him in Crossloan Terrace, the street where he lived. He was attacked. He was punched and kicked by a number of people including the co-accused and also, at some point, struck with a pole of some sort by Michael Linning. Most seriously, he received seven stab wounds which caused his death. They were administered solely by the appellant.

[8] The order in which the various attacks took place and their precise nature varied in the evidence from witness to witness. Those witnesses included four young teenage girls who were not part of the snooker club group but were returning home together from having been out elsewhere. They were Chelsea Geddes, Jodie Geddes, Alexandra McArthur and Michelle Kerr.

[9] The evidence of those four teenagers differed. Firstly, neither Jodie Geddes nor Alexandra McArthur said anything which contributed to the case against the appellant. Chelsea Geddes' evidence did do so. In particular, she spoke of Mark Morrison being on the ground when attacked by the appellant and although he tried to get up, he did not manage to do so. Michelle Kerr's account in her evidence at the trial was to the same effect but there were some discrepancies between what she said in court and her police statement.

[10] William Mitchell, whose birthday party it was that had taken place at the snooker club that evening, gave evidence. He was highly intoxicated and had to be helped into a taxi at the end of the party. He said that he saw the appellant and Mark Morrison standing at the time of the attack. He gave other evidence which was not consistent with the appellant's position.

[11] Charlene Linning, sister of the co- accused Michael Linning gave evidence about the confrontation between Mark Morrison and the two co-accused in Elder Street. She spoke of all three men lifting the back of the tops they were wearing so as to give the impression that they had items down the back of their trousers. She did not give evidence about the events in Crossloan Terrace. In his speech to the jury, Mr McConnachie founded on her evidence as showing Mark Morrison having behaved so as to give the impression that he had a knife, shortly prior to the fatal attack.

The Issue at Trial

[12] The appellant accepted having killed Mark Morrison by repeatedly stabbing him. The only issue at trial was, accordingly, whether he had committed murder or culpable homicide. The appellant's position was that he had acted under provocation and so did not have the necessary intent to commit murder.

The Crown Case

[13] The Crown case was that Mark Morrison was murdered by the appellant in circumstances which involved the appellant having attacked him - after the chasing group had done so - in a brutal assault with a knife which occurred whilst Mark Morrison was on the ground. In his address to the jury, the Advocate-depute submitted that whilst much of the evidence conflicted and required to be treated with care, the assault in Crossloan Terrace was witnessed from start to finish by the above group of four young girls whose evidence supported the Crown case. He invited the jury to accept and rely on their evidence, as a whole. No distinction was drawn between the evidence of the four girls.

The Appellant

[14] The appellant gave evidence on his own behalf. He had armed himself with a knife after Mark Morrison had appeared at the snooker club with a machete. He had decided to follow the group chasing him out of concern for his partner's brother who was amongst them. When he arrived at Crossloan Terrace he saw Mark Morrison and Matthew Burns exchanging punches. He went straight over and punched Mark Morrison. He said that Mark Morrison, who he could see was unarmed, took a step backwards and moved his hands towards the back of his trousers. That made the appellant think that he was about to withdraw a knife so he grabbed Mark Morrison by his left shoulder to turn him round. As a result his back was towards the appellant and he stabbed Mark Morrison in the back. The appellant only remembered stabbing him once but he accepted that they continued to grapple and exchange blows. The incident began, he said, with the two of them on their feet although it ended up with them both on the ground.

[15] The appellant got up, realised he had stabbed Mark Morrison and left the vicinity. The next morning he heard that Mark Morrison was dead whereupon he left home, checked into a hotel at Glasgow airport and remained there for six days until he flew to Spain using a passport in his brother's name and remaining in Spain for some six months.

The Character of the Deceased

[16] The Advocate-depute led evidence about the character of Mark Morrison. In particular, he led evidence that he had previous convictions for violence and drug dealing. He put to his sister that her brother had been "no angel", that he had been in trouble (unspecified), that he had had problems with drugs, that he had been convicted of drugs offences, that he had been convicted of crimes of violence and that he had been in jail (as a generality, without reference to any specific offences). Not all of these propositions were accepted by the witness. He put to Mark Morrison's brother that the deceased had been in trouble, that he had committed offences, that he had served prison sentences and that they included sentences for drugs offences and offences of violence. The witness broadly accepted the propositions put. Mark Morrison's partner had been cross-examined on behalf of one of the co-accused to the effect that he had been in trouble with the police and committed drugs offences. In the course of his address to the jury on behalf of the appellant, Mr McConnachie said:

"Let's look at some of the Crown evidence in this case. There was, you may think, at the very beginning of this case a body of evidence which one way or another attempted to portray Mark Morrison in a particular way. I think various phrases were used in the evidence. 'An angel to us' is one that I recall. 'Wouldn't go looking for trouble.' 'Not taking drugs; certainly not take heroin.' And, 'Everybody's friend.'

Now, I don't know if you remember any of these phrases or not. I don't know if I've got them right or not, but it's as good a time as any to say to you, you don't rely upon the evidence that I give you, because I'm not giving evidence. You rely upon your own recollection. But in reality certainly that night, is that a reasonable and realistic picture of Mark Morrison? You know from what other people asked about Mark Morrison, and other evidence that you heard, that he was somebody with a significant criminal record, including a record for violence. A drug dealer. But more importantly on the 30^th January ... 31^st January 2009, he was a man on a heavy cocktail of drink and drugs. A lot of drink. Okay. Heroin, valium, cannabis. Does that not give you a much truer picture of the Mark Morrison on the 31^st January? I'm not interested in him before then. On the 31^st January, what was he like?"

Police Interviews of Co-Accused

[17] Both co-accused had been interviewed by the police and they had been asked about the part played by the appellant in the events at Crossloan Terrace. Both spoke of Mark Morrison being punched by the appellant when he was on the ground. One spoke of the appellant having got Mark Morrison on the ground and punching him there. Neither spoke of the appellant having had or having used a knife. Their descriptions of the altercation between the appellant and Mark Morrison were general, they did not give detail about the precise order of events and neither described how it had begun.

Ground of Appeal (1)

[18] The first ground of appeal of appeal was essentially that the trial judge had, in his charge, commented in a manner that was liable to arouse the jury's sympathy for the deceased and that the risk of them being inappropriately influenced was not allayed by his having given them the usual general direction that they should not let themselves be swayed by emotional considerations.

[19] The passage in the charge referred to in this ground of appeal , ( to be found at pages 23 to 25 of the transcript) is as follows:

"Now, of course the other person who's at the centre of this case is Mark Morrison and much was made throughout the case of Mark Morrison's character and his own previous encounters with the authorities. You heard about his record of previous convictions, for example. It will be entirely a matter for you to decide whether any of that information is of any value at all to you in consideration of the real issues which remain in this case and I also wonder whether you think Mr McConnachie raised this in quite the right context in his speech to you. He said that a lot of evidence had been heard about how Mark Morrison was everybody's friend and things like that and yes, it's right of course to say that such phrases were used but were they not in the context of responses to questioners, including the Advocate Depute, who were seeking to [elicit] evidence of the fact that Mark Morrison had been in trouble and had been violent at times. Those were the general propositions which were put to witnesses and sometimes they were agreed with and sometimes they said things like, well he was everybody's friend as well, as if to say he had two sides to him. Well, you'll make what you think right of that but it is certainly beyond doubt that he turned up at the club on the evening of 30 January looking for trouble. You might also feel though, that a number of those around and about the time were just as happy to oblige him. What is clear is this, for all the talk of gangs, fighting and carrying on which seems to have been common place, Mark Morrison was a young man aged 25 who lost his life to violence. Who knows what he would have made of his life or where he would have ended up if he'd stayed in bed that night. What you must be sure to guard against though is any thought that his life was worth less than anyone else's or any thought that the law and the legal rules we've been discussing apply any the less simply because he himself behaved badly that night and on other occasions. In the eyes of the law, which you must now look through the case arising out of the death of Mark Morrison must be considered in precisely the same way as the death of any other young man, son or brother. Perhaps it is right to say that he was no angel but he was clearly a loved son and brother as conveyed perhaps most sympathetically and intelligently in the words of his sister Rosina when she said to the Advocate Depute in response to his suggestion that Mark was no angel she said, he was an angel to us."

[20] At page 4 of his charge, the trial judge had given the general direction that:

"... you wouldn't be entitled to speculate or to guess about any matters of which you've not heard evidence and nor of course must you allow yourselves to be swayed by any emotional considerations, any form of dislike or any form of prejudice. It is in the nature of such a serious case as this that you will be required to deal with upsetting events and events of course with very serious consequences for anyone found to be responsible but your function now is properly described as a judicial function and you must approach it that way."

[21] The trial judge explains in his report that there were two reasons for including the first of the above passages in his charge. The first was that evidence about Mark Morrison's character had been elicited in evidence. The other was the nature of the comments made by Mr McConnachie in his address to the jury in the passage in his speech from which we have quoted above. He considered that there had been such a focus on Mark Morrison's background and character as to call for the directions he gave which he felt were fair and appropriate in all the circumstances.

[22] Mr McConnachie had appeared at the trial and explained that it had not been his intention to suggest that Mark Morrison was a less worthwhile person than others or that he deserved to lose his life. When he referred to his character in his address to the jury, it was for the purpose of exploring how he was on the night of 31 January 2009, nothing more. He did, however, acknowledge that with the benefit of hindsight the reference to him having been a drug dealer was irrelevant to that purpose. Notwithstanding that, the effect of the trial judge's comments had been to invite the jury to be affected by emotional considerations and that amounted to a misdirection.

[23] For the Crown, the Advocate-depute submitted that there had been no misdirection. The passage required to be read in its entirety and in the context of the whole charge including the general directions not to be swayed by emotional considerations. The trial judge was best placed to reach a view as to the impact the evidence about Mark Morrison's character might have had on the jury, particularly as to the risk of their drawing the wrong inference from it. The defence position had not been to confine matters to Mark Morrison having been under the influence of drink and drugs on the night of the incident; his prior character, particularly that he had been a drug dealer, was referred to. It was plain that the trial judge's concerns had arisen from the evidence and the defence speech and his directions were not contradictory of his earlier general direction. The appropriateness of the directions was further supported by the fact that attacks on the character of complainers are not generally permissible (G v HMA [2010] HCJAC 34, paras 90 - 91) and the exceptions to that general rule did not apply in this case apart from evidence regarding Mark Morrison's previous convictions for offences of violence. The latter were relevant given the issue of provocation but the references to his bad character in the evidence and in the defence speech went much further.

[24] We are not persuaded that this ground of appeal is well founded. We are not entirely clear why the trial Advocate-depute led all the evidence that was led by him about the character of the deceased but what matters for present purposes is that it was led and commented on in the defence speech to the jury. Whatever Mr McConnachie's intentions - and we do not doubt that they were as he stated they were- the overall effect of the evidence and his observations was to create a risk that the jury would be left with the impression that Mark Morrison's life was worth less than that of others and, importantly, that he was a person of prior bad character who did not deserve the full protection of the law . Further, we have regard to the fact that the trial judge heard the evidence and the defence speech at first hand and evidently considered that a real risk had arisen of the jury being misled as to the correct approach if he did not specifically address the matter. In these circumstances, it was appropriate that directions be given by the trial judge with a view to obviate that risk. In the course of submissions, Mr McConnachie laid emphasis on the sentence in the above passage in the charge beginning with the words "Who knows..." and we accept that had that been all that the trial judge said about the matter, it would have amounted to a misdirection. The sentence must, however, be read in the context of the passage as a whole and in conjunction with the earlier general direction not to be swayed by emotional considerations. When that is done, we are satisfied that no misdirection occurred.

Ground of Appeal (2)

[25] In this ground, the contention is that the jury were misdirected in respect that the trial judge summarised the evidence of the four young teenage girls in his charge without balancing his reference to their evidence by referring to the evidence of William Mitchell and Charlene Linning which, it was said, contradicted the evidence of the four girls.

[26] The passage founded on is as follows:

"I think we heard witnesses for in the region of three weeks and in the end of the day the Advocate Depute has come to recognise that much of that evidence is unreliable and could not be used as the bedrock for the conviction. As I understood the approach which he took with you yesterday he comes now to present a case based only on the evidence of the four young girls, accordingly it's that evidence that you will need to focus on in deciding whether the Crown has established its case against Mr Docherty and in saying he relied only on the evidence of the four young girls he relies on that as to the factual evidence of what happened. You obviously add in the forensic evidence and the pathology evidence and matters of that sort. However, despite taking that approach I don't think the Advocate Depute actually sought to analyse out the evidence of the young girls with you to suggest what it might come to. Indeed, I think Mr McConnachie is probably right when he said to you that at least two of those girls didn't mention Mr Docherty's presence at all or even claim to have seen the stabbing. So standing the importance which is now attached to the evidence of those four young girls it might be helpful if I was to take just a moment or two to examine what they said with you but as always you must remember that I am just as capable of noting the evidence incorrectly or incompletely as anyone else and so rely on your own recollection if you think I've got anything wrong in the summary which I'll just go through with you and perhaps we should start with Chelsea Geddes since she seems to have assumed the greatest importance. You'll remember that when she gave evidence to the Advocate Depute she explained that she saw Mr Morrison being chased. She said that Michael Linning was the first of the chasers with a large group behind him and that she saw Mr Morrison trip at the pothole and that the group then started to kick and punch him. Now, just taking it shortly what she then said was, first of all she said that Mr Docherty was in this group. However, when it came to cross examination I understood her to explain that she's been mistaken in saying that and she went on to explain that she saw Mr Morrison sort of crawl away a bit from the group, and it was at that stage that she then first saw Stuart Docherty and she saw Stuart Docherty jump on him and she said that he and Mark Morrison were fighting. She said that Mark Morrison went down on the ground and the two of them were fighting and she acknowledged that she was only first aware of Mr Docherty when she saw him fighting on her own with Mark Morrison, on his own with Mark Morrison. She said of course that she saw Mr Docherty with a knife. When she was asking the, answering the Advocate Depute's questions I understood her to say to him that she saw Mr Docherty pull the knife out and saw him stab Mark Morrison with it a number of times and she explained that the incident came to an end when Mark Morrison managed to stand up and get away. In cross examination when she was asked questions by Mr McConnachie she said to him that Mark Morrison was still on the ground trying to pull himself away from the group when Stuart Docherty got involved. When Mr McConnachie put it to her directly that Mark Morrison was in fact on his feet when Stuart Docherty became involved Chelsea Geddes said he wasn't and she also rejected Mr McConnachie's suggestion that when the two were fighting they were both on their feet. She said that they were both on the ground, rolling about. She did agree with Mr McConnachie though that she hadn't noticed the knife until after the fight had started and that this part of the whole incident was over very quickly. Now of course we also heard from Chelsea's sister Jodie and from their friend Alexandra McArthur, but my understanding and I've looked again, of the evidence of these two young girls was that neither said they saw Stuart Docherty at all and neither appeared to have been aware of Mark Morrison being stabbed. Indeed you might remember that Alexandra McArthur was the young girl who spoke of seeing Mark Morrison running into Crossloan Terrace and then running all the way around the block in which he lived, being chased by the group, a picture that seemed quite inconsistent with that given by the rest of the evidence and so it might be rather difficult to see how either of these two girls can assist the Crown in establishing what Stuart Docherty did at Crossloan Terrace and of the group relied upon by the Crown then that just leaves the evidence of Michelle Kerr and again I think Mr McConnachie was correct in saying that she was one of those witnesses who appeared to have said something different to the police as compared with her evidence in court. As I understood her when she first gave evidence she said to the Advocate Depute that she saw Mark Morrison being chased by a group, that he tripped over a pothole and that the group caught up with him and she said that everyone in that group then started to kick him. She said at a later point, about two seconds later, she saw Stuart Docherty. She said that Mark Morrison had started to wriggle away from the group and Stuart Docherty ran at him. She said that Mark Morrison was just about to get to his feet when Stuart Docherty got him from behind and she said at first I thought he was punching him but then I saw a knife. Now as Mr McConnachie remarked perhaps that's an account quite similar to that given by Chelsea Geddes but of course when it came to cross examination Michelle Kerr was referred to production 95, which was the police statement that she gave on the 1^st of February of 2009 and you'll perhaps remember that parts of that statement were read to her and it may be helpful if I just remind you what some of them were. She said I could see Turtle running out from the tunnels, I could see a guy called Doc chasing him. Doc caught up to Turtle and I could see that he had a knife. Turtle tried to struggle away from Doc and they both fell to the ground. I don't know how many times it was but I know it was more than once. While they were on the ground Matthew Burns kicked Turtle in the head. I saw Mick Linning go and get a scaffold pole and stand near the containers. Turtle managed to get up and ran towards his house and made it to the containers at which point Mick Linning hit him on the head with a pole. Turtle just fell to the ground. Now, of course the difference between the two there was that in court she gave the same sort of explanation as Chelsea Geddes, of Mr Morrison coming in, being chased by one person and a following group and then Docherty arriving after the group had attacked but in the police statement she seems to be saying that Mr Morrison comes running in chased by Mr Docherty, Mr Docherty catches up, they're on the ground and there's no reference to the preceding attack by the group. Now, when that document with that account was shown to Michelle Kerr, as I understood her she said oh I've got the order the wrong way round today, in other words in the questions and answers that she spoke of with the Advocate Depute and she went on to say to Mr McConnachie that she got it wrong this morning because she wasn't thinking about it and I'm not sure if you found it terribly easy to follow those passages of her evidence but you might have got the impression from it that what she was then telling you was that the correct order of events was as she had given to the police in her statement. She also said that there were passages in her statement where she had said things that were wrong, for example she went on to say that after Mr Linning had hit Mr Morrison with the pole the group started kicking him again and she said that Docs, Stuart Docherty was involved at that stage in her statement but when that was drawn to her attention she said no that's something I got wrong, that didn't happen and as I understood her there were also passages and things that she'd said to the police where she said that she thought the police must have picked her up wrongly or maybe that even she didn't say what had been recorded and of course despite explaining to you that she saw the stabbing and saw who did it you will also understand from the joint minute that when Michelle Kerr looked at the video identification parade she picked out just a stand-in, she didn't pick out Stuart Docherty at all, she didn't select him. So I'm not suggesting ladies and gentlemen that I've just taken you through a complete summary of the evidence of these girls but perhaps I might have helped to draw together the essential components of what each had to say and it may be in the end of the day that you find Jodie Geddes and Alexandra McArthur don't help terribly much, leaving you with Chelsea Geddes and Michelle Kerr but leaving you also with some of the difficulties that we've just looked at in Michelle Kerr's testimony."

[27] The trial judge explains in his report that he included the above passage because it seemed to him that the Advocate-depute's approach had been to invite the jury to take the girls' evidence as a group and as if they had provided consistent evidence as between them. That was not, however, correct. He had, accordingly, sought not to summarise the competing evidence in the case as a whole but to focus the jury's attention on testing the validity of the Advocate-depute's approach to the evidence. He saw no need to refer to the evidence of William Mitchell or Charlene Linning. He noted that their evidence had been founded on by Mr McConnachie in his speech to the jury.

[28] Mr McConnachie not only accepted that it was open to the trial judge to go through the girls' evidence but seemed, ultimately, to submit that it was incumbent on him to do so since, contrary to what was suggested by the Advocate-depute in the Crown speech, their evidence had not all been to the same effect. However, in so doing, he ought, he said, to have looked at the whole charge and see to it that the effect of his reference to the evidence was balanced. That meant that there ought also to have been a reference to William Mitchell's and Charlene Linning's evidence because what they said had been supportive of the appellant's case of provocation. He did not submit that the trial judge had deliberately set out to highlight the girls' evidence but submitted that the effect of his directions had been to do so. That amounted to a misdirection.

[29] For the Crown, the Advocate-depute submitted that there was no misdirection. The trial judge had referred to the girls' evidence by way of criticism of the approach of the Advocate-depute which, it was accepted, required correction as the evidence of the four girls did not coincide. It was easy to see how and why the trial judge felt it necessary to correct the contrary impression that had been given by the Advocate-depute's speech. Overall, the passage in the charge founded on did not support the Crown approach. It helped the defence since it drew attention to certain difficulties with the Crown evidence. Further, as a matter of principle, it was open to a trial judge to deal with evidence in his charge on account of something arising from the speeches to the jury without being required to go through all the evidence. She referred, in support of that submission, to Shepherd v HMA 1996 SCCR 679; 1997 SLT 525 and F v HMA [2009] HCJAC 64. Given the clear purpose for which the trial judge referred to the evidence of the four girls, to say that he should have dealt also with the evidence of William Mitchell and Charlene Linning was, she submitted, to miss the point.

[30] We are not persuaded that this ground of appeal is well founded. We consider it to be clear that the purpose for which the trial judge made these references to evidence was to correct what was an erroneous assertion in the Crown speech that the four witnesses all supported the Crown case and did so in the same way. That was not correct, as the trial judge explained and in the circumstances it was entirely appropriate for him to approach matters as he did. It was, we accept, not a matter of him summarising the evidence for the jury and so any question of whether or not he was presenting a balanced summary did not arise. Rather, it was clearly a matter of him having noted a problem with a fundamental aspect of the approach of the Advocate-depute to proof of the Crown case and, out of fairness to the appellant, seeking to draw the jury's attention to what the evidence of the four girls had actually been. The directions fall within the category of cases identified in Shepherd and F where it is appropriate for a trial judge to refer to part of the evidence to correct a reference to it that has been made in a speech to the jury. As was said by Lord Carloway in F at paragraph 14:

"He may well require to correct a reference in a speech to the jury which does not accord with his own notes of the testimony given, even though recollection will ultimately be a matter for the jury to determine. But the fact that he does require to correct one or more references does not mean that he has to rehearse all the evidence linked to that reference."

[31] We would add that, so far as the evidence of William Mitchell and Charlene Linning was concerned, we would not regard it as linked to the girls' evidence. Even if it was, however, as Lord Carloway comments, whether or not it required to be mentioned was very much a matter for the judgment of the trial judge and we cannot fault his approach.

Ground of Appeal (3)

[32] As we have explained, there were originally two co- accused. until the penultimate day of the trial. Oral evidence had been led of parts of their police interviews on a "role play" basis. Transcripts of the relevant parts had not been given to the jury. Both co-accused had been questioned about the events at Crossloan Terrace and both had answered questions about their own assaults on Mark Morrison and about the appellant's assault on him. The trial judge did not direct the jury that nothing said by either co-accused in the course of those interviews could be used as evidence against the appellant. In his report, the trial judge accepts that he probably ought to have so directed them although, in his view, nothing said by them incriminated the appellant.

[33] Mr McConnachie submitted that the direction ought to have been given, that the failure to do so amounted to a misdirection and that there had been a miscarriage of justice. A critical issue of fact at trial had been whether or not Mark Morrison had been standing up or not when the appellant attacked him with the knife. That was the appellant's position and was supportive of his case of provocation. If, however, Mark Morrison had been on the ground at the start of the attack that would point away from the provocation alleged having operated when the appellant attacked him. He went through the parts of the interview transcripts that had been read out to the jury and submitted that they showed that what was said by the two co- accused could be seen as supporting the Crown case that Mark Morrison was on the ground when the appellant started his attack on him. The jury had not, however, been told anything about the status of this evidence and may well have used it to resolve other conflicts in the evidence so as to support the Crown case.

[34] It was accepted by the Advocate-depute that the failure to give the direction did amount to a misdirection. There had not, however, been a miscarriage of justice. The background was that there was no issue as to who was responsible for the knife attack on the deceased. It was not, accordingly, of any significance that their accounts of events excluded themselves from responsibility for the knife attack. What was said by the co-accused in the course of the police interviews was not, she submitted, actually incriminatory or inculpatory of the appellant as having committed murder.

[35] The Advocate-depute pointed out that the accounts given to the police by the co- accused were only that they saw the appellant punching the deceased. They did not state how the incident had begun and that was what was critical so far as the issue of provocation was concerned. The appellant himself had spoken of punching Mark Morrison and their account fitted as a generality with his account of events. The jury were not given the transcripts so they had only heard the interview evidence once and could not have pored over it in the jury room. There was no cause for concern that the jury could have used this evidence as supportive of the Crown case so far as the physical position of Mark Morrison at the start of his altercation with the appellant was concerned. There had not, accordingly, been a miscarriage of justice.

[36] The concession by the Crown that the direction should have been given was appropriate but we are not persuaded that a miscarriage of justice occurred. We note that the issue of whether or not Mark Morrison was standing up when the appellant arrived on the scene and began his attack on him was critical to the case of provocation. It was an essential feature of his account of being provoked that Mark Morrison was standing up and made a motion which he interpreted as him going to take a weapon out of the back of his trousers. That was not an account which, it seems, could have held water had Mark Morrison been down on the ground when the appellant's attack on him began. It is, however, evident from the transcripts of their police interviews that neither co-accused gave an account of how the attack by the appellant had begun. Whilst they certainly gave accounts of parts of the incident, those accounts did not purport to be an entire or detailed account of the events that occurred. Insofar as they were accounts of the appellant having punched the deceased whilst he was on the ground, the appellant himself gave evidence that after stabbing Mark Morrison he continued to grapple with him and they ended up on the ground with him on top of his victim. That is, to say that the appellant was seen to be assaulting Mark Morrison when he was on the ground was not inconsistent with the appellant's account. We find, accordingly, that this ground of appeal is not well founded.

Ground of Appeal (4)

[37] This ground is an appeal against sentence in which it is stated that the imposition of a punishment part of twenty years was excessive when regard is had to the circumstances surrounding the offence, the range of sentences imposed in other cases and the guidance given by this court.

[38] Mr McConnachie submitted that whilst, given the verdict of the jury, it had to be accepted that there was no provocation in law, in lay terms there was an element of provocation in the actions of the deceased. The incident had begun outside the snooker hall where Mark Morrison brandished a large and lethal weapon. The circumstances were exceptional and the punishment part ought to have been arrived at using a starting point of less than sixteen years. No submissions were made regarding the circumstances of charge two.

[39] The appellant had two previous convictions under section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 and a further conviction under section 49(1) of the same Act. The latter conviction involved possession of a knife, was prosecuted on indictment in 2007 and a sentence of twelve months imprisonment had been imposed. That is, he was shown to have a prior propensity for carrying weapons. He had otherwise received non-custodial sentences. The trial judge took the view, with which we would concur, that the efforts that had been made through his previous sentences to seek to discourage the appellant from carrying weapons which might lead to needless death had been ignored by him. We would, further, observe that the appellant's knifing of the deceased had all the hallmarks of being a brutal revenge attack. The appellant, whilst carrying a knife, chose to chase after Mark Morrison when he emerged from the snooker hall rather than go home. There was no requirement or justification for him doing so. The trial judge also took account of the circumstances surrounding charge 2. We agree with him that they constituted a determined and prolonged attempt on his part to avoid accepting responsibility for his actions and that they required to be reflected in the fixing of the appropriate punishment part. A punishment part of twenty years was in line with the guidance in HMA v Boyle 2010 SCCR 103; 2010 SLT 29 and was not excessive. We, accordingly, also reject this ground of appeal.