Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Nimmo Smith Lord Mackay of Drumadoon Revised as at 13 Jan 2011 ++ Revd. WANS 16.6.11	[201109] HCJAC 83 Appeal No: XC1268/03 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in APPEAL AGAINST CONVICTION by MARY RYAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead & McKenzie; Gilfedder McInnes, Solicitors, Edinburgh

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

18 August 2011

Introduction

[1] On 3 September 1999, after a trial lasting five weeks, the appellant was convicted at Glasgow High Court of charges of murder, theft and attempt to defeat the ends of justice. The charges were in the following terms:-

"Having formed a criminal purpose to murder Manus O'Donnell, 33 Inverewe Drive, Glasgow,

(1) between 19 and 22 November 1998, both dates inclusive, at a wooded area at Barbana Road, Phillipshill, East Kilbride or elsewhere to the Prosecutor unknown, you did assault said Manus O'Donnell, 33 Inverewe Drive, Glasgow and repeatedly discharge a shotgun at him and shoot him on the head and body, repeatedly strike him on the head and body with a knife or similar instrument and did murder him and further did steal from him a watch, diary, mobile telephone and money clip containing a quantity of money;

(2) having on 19 November 1998 hired motor car registered number R 187 KGD you did on 19 November 1998 at the Tinto Firs Hotel, Kilmarnock Road, Glasgow, and elsewhere appropriate said motor car for your own use and did steal same;

and

(3) on 20 November 1998 at Broomburn Drive, Newton Mearns, Glasgow, with intent to destroy evidence in respect of the murder libelled at charge (1) above) above and to avoid detection and the pains of prosecution for said murder, you did set fire to motor car registered number R 187 KGD feloniously obtained as libelled at charge (2) above) above and you did thus attempt to defeat the ends of justice."

[2] The appellant was had been indicted with two other accused, Patrick Francis Devine and Francis Martin Thomas O'Donnell. All three accused faced the same charges. The co-accused Devine, who was the boyfriend of the appellant, was acquitted of charges (1) and (2) and convicted onf charge (3). The co-accused O'Donnell ("O'Donnell") was convicted on charge (1) and acquitted of charges (2) and (3).

[3] Following her conviction by the jury, the trial judge sentenced the appellant to life imprisonment on charge (1), with a recommendation, in terms of the provisions of section 205(4) of the Criminal Procedure (Scotland) Act 1995 (which then applied), that the appellant should serve a minimum period of 15 years. The appellant was admonished and discharged in respect of charges (2) and (3).

[4] The appellant appealed against her conviction of murder. The hearing of the appeal fell into two parts, during each of which the Court also dealt with grounds of appeal relevant to a referral by the Scottish Criminal Cases Review Commission at the request of Francis Martin Thomas O'Donnell, one of the appellant's co-accused.. The Opinion of the Court dealing with that referral ( O'Donnell v HM Advocate [2011] HCJAC ???, 84, "the O'Donnell Reference Opinion") is dated of even date with this oOpinion.

Ground of appeal 1A

[4] The grounds of appeal originally lodged on behalf of the appellant on 21 June 2001 (document 1 A of the appeal court process) raised three separate and distinct issues. In the event only the first of the grounds of appeal set out in thate document was insisted upon and argued at a hearing in June 2009. We refer to that ground of appeal as Ground 1 A. It is in the following terms:

"The trial judge erred in rejecting the submission that there was no case to answer. There was insufficient evidence in law to entitle the jury to convict of murder. The evidence was sufficient to establish that the appellant was present when the murder was committed but was insufficient to establish that she knew the murder was to take place or that she was acting in concert with those who actually killed the deceased. There was insufficient evidence to entitle the jury to find that she had ab initio been part of a common enterprise to murder the deceased and it was not sufficient to establish that she had formed or acted upon a common criminal purpose the scope of which extended to murder."

[5] Ground 1A refers back to a submission of no case to answer that had been argued unsuccessfully on behalf of the appellant at the conclusion of the Crown case. The ground proceeds on an acceptance that the deceased was murdered. It formed no part of the argument on behalf of the appellant during the trial, or before this court, that the jury was not entitled to conclude that the deceased had been murdered. The ground of appeal raises the issue of whether there had been sufficient evidence before the jury to entitle them to convict the appellant of that murder.

On 7 April 2010, the Court allowed the appellant to have received "Revised Additional Grounds of Appeal" (document 1C of the appeal court process). Those grounds, which we refer to a Ground 1C, were argued before the Court on 18 and 19 January 2011. They are in the following terms:

" Since the conviction the Crown has disclosed two additional statements given by the witness William McKinnon. The statements were not made available to those acting for the accused at the trial. In particular, the statement dated 26 July 1999 contains information which was essential to the proper preparation and presentation of the defence case. In particular the lack of disclosure meant that there was no opportunity for those acting for the defence to cross-examine the witness on the contents of these statements.

While the burden of challenging evidence of William McKinnon fell primarily on those who acted for Francis O'Donnell the appellant had an interest in seeing that his credibility and reliability were fully tested at the trial.

Given the importance of his evidence to the Crown's contention that there was a common plan to murder the deceased to which the appellant subscribed the failure in the duty of disclosure materially prejudiced the fairness of the appellant's trial.

In any event, the breach of duty having occurred, the Lord Advocate was acting incompatibly with the appellant's right to a fair trial guaranteed by Article 6(1) in seeking the appellant's conviction. Such an act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998."

Ground of Appeal 1 C arises out of failures on the part of the Crown to disclose witness statements in advance of the appellant's trial.

Background to the charges of which the appellant was convicted
[6] The jury heard unchallenged evidence that the appellant and the deceased, Manus O'Donnell, were well known to each other. They were business associates. The trial judge reports there was clear evidence before the jury that the appellant was a close confidante of the deceased and that she was trusted by him. The appellant worked with the deceased in the building and civil engineering industries. The deceased was apparently involved in the supply of labour-only services at the lower end of these industries. The conduct of his businesses was, according to the evidence the jury heard, irregular in a number of respects, including (a) the payment of wages in cash, without deduction of tax or national insurance contributions; (b) the employment of gangers without proper health and safety certification; and (c) the use of shell companies to defeat the interests of creditors. The evidence disclosed that the appellant and the deceased were in frequent and regular contact with each other. They met regularly, at the deceased's premises in Victoria Road, Glasgow, at the offices of various construction companies in Glasgow and, during the evening, in hotels, bars and clubs in the Glasgow area. During October 1998, the appellant accompanied the deceased on a holiday to Spain. The jury heard some evidence that whilst he was in Spain the deceased may have taken part in trading in illicit drugs.

[7] In 1998, the appellant also became involved in other business activities with the co-accused O'Donnell. They were both involved in the setting up and the managing of an escort agency under the name "Pretty Woman", in which the deceased also had an interest . The accused O'Donnell introduced the appellant to William McKinnon, who also became involved in the "Pretty Woman" business.

The murder of the deceased

[8] During the trial the jury heard unchallenged evidence that on Thursday 19 November 1998 the appellant hired a Renault Megane motor car registered number R 187 KGD from Arnold Clark. She uplifted that car from the firm's Govanhill Depot at 17.30 hours that day. Later that evening the appellant drove the Megane car to the Tinto Firs Hotel in Glasgow, where, by arrangement, she met the deceased. The deceased had driven himself to that hotel in his own car. Around 21.00 hours the appellant and the deceased left the Tinto Firs Hotel together. They both entered the Megane car, which the appellant then drove out of the hotel's car park. The deceased's car was left in the car park.

[9] At 02.34 hours the following morning, Friday 20 November 1998, the fire brigade was summoned to a car park at Broomlands Drive, Newton Mearns, Glasgow. On their arrival firemen discovered the Megane car, which had been hired by the appellant. It had been set on fire. When the car park had been inspected by a police officer, around 23.50 hours the previous evening, the Megane car had not been in the car park. However, when the same police officer returned to the car park approximately two hours later, at 01.40 hours, he noticed the Megane car parked and undamaged. Residents of a flat adjacent to the car park gave evidence of having heard, around the time the Megane car went on fire, an explosion, the sound of a woman's voice and the noise of a large 4x4 vehicle leaving the car park. The Megane car was completely destroyed during the fire.

[10] Around lunchtime on Sunday 22 November 1998 a member of the public came across the deceased's body in a wooded area in East Kilbride. Post mortem examination of the deceased's body disclosed that he had been shot twice with a shotgun, initially in the chest and subsequently to the back of his head. The deceased had also been stabbed with considerable force a total of 22 times, in the back, head and neck. During the trial, two pathologists gave evidence that the deceased might have survived the shotgun wound to his chest but that he would have died instantly following the shotgun wound to his head. In light of that evidence it is understandable why the trial judge described the crime as having been one of extreme viciousness carried into execution with horrendous violence.

[11] In his charge, the trial judge directed the jury that there would not be a case against any of the accused on the charge of murder unless they were satisfied upon the evidence that the deceased had been murdered sometime after 21.00 hours on the evening of 19 November 1998, and prior to the destruction of the Megane car in the car park in the Newton Mearns in the early hours of the following morning. No criticism was made of that direction to the jury. Nor was it argued, on behalf of the appellant, that the jury had not been entitled to reach the conclusion that the deceased had been murdered during that period of time.

Crown The case against the appellant

[12] The Crown's case against the appellant was presented on the basis that she had been acting in concert with her two co-accused and with others. It was alleged that the appellant had played a pivotal role in the preparations for the murder, and in its execution, by bringing the deceased to his killers. It was not contended that she had killed the deceased herself.

[13] Before the court was addressed by Mr Shead, on behalf of the appellantus, the Advocate depute was invited to outline the chapters of evidence upon which the Crown relied in supporting the conviction of the appellant on the charge of murder. The Advocate depute explained that the Crown took no exception to the description of the evidence in the trial judge's report. He confirmed that the Crown relied on the evidence indicating that the death had occurred in a manner and within the time frame to which reference has already been made. From the summary of the evidence the Advocate depute provided, supplemented by the terms of the report by the trial judge and the contents of certain Crown productions, which we were informed had been placed before the jury, namely police statements given by the appellant, transcripts of her interviews under caution and an analysis of phone calls made to and from the appellant's mobile phone, it is clear that the following chapters of evidence along the following lines was before the jury relating to on which they could base their verdict on the charge of murder of murder the appellant facedwere before the jury:-

(a) The appellant and the deceased were close associates. They had regular dealings with, and confided in, each other.

(b) TThe hiring of the Renault Megane car was hired by the appellant on 19 November 1998. The evidence relating to the hire of the Megane car disclosed (i) that when the appellant arrived to pick up a hire car, she was unaware what model of car she was going to be given, (ii) that when she was offered a Megane car the appellant enquired whether the rear seats of the car folded down, (iii) that there were only two keys in existence which could be used on that car, one key handed over to the appellant and the other retained by Arnold Clark, (iv) that no other person had ever sought a replacement key from Renault for the Megane car, prior to its destruction on 20 November 1998, and (v) that the Megane car did not have central locking.

(c) The meeting between the appellant and the deceased met at the Tinto Firs Hotel during the evening of 19 November 1998 and their departedure from the hotel around 21.00 hours. The jury heard evidence from staff at the hotel that prior to the appellant and the deceased leaving the hotel the appellant had suggested to the deceased that they travel in her car, because she required to get petrol, and that the deceased had left his own car in the hotel car park.

(d) The evidence given by Robert Graham gave evidence of as to what he heard when he telephoned the appellant's mobile phone at 21.07 hours on 19 November 1998. The witness spoke of having heard voices and threats and then a bang, which could have been a gun going off, followed by gurgling noises. He had not heard any noise of a car engine.

(e) The circumstances in which the Megane car was discovered ablaze in the car park in Newton Mearns early in the morning of 20 November. The jury heard evidence that examination of the burnt out car disclosed that there were no signs of the car having been forcibly opened, that the car had not been "hot-wired" and that it could not have been driven to the car park without the use of a key.

(f) Evidence of the appellant (i) reporting to Aitkenhead Road Police Office on 20 November 1998 that the Megane car had been stolen from Queen's Drive and (ii) making a report in similar terms to Arnold Clark later the same day, when she had also handed over the key to the Megane car, which she had been given when she had hired the car.

(g) Evidence about a series of phone calls made to and from the appellant's mobile phone during the period between 16 November 1998 and 22 November 19982008. Those calls were enumerated in Crown Production 140 and included a number of calls between the appellant and her associates, including the co-accused Devine, the co-accused O'Donnell, Paul McGeough (who drove the appellant to Arnold Clark when she hired the Megane car), a man called John Gorman, Robert Graham and William McKinnon. The jury in particular heard evidence of calls having been made to and from the appellant's mobile phone on 19 November 19982008. The details of these calls were summarised by the trial judge in his report. They include a number of calls with each of the two co-accused, and with Paul McGeough. In particular, after 16.45 hours, when the appellant concluded a short meeting with the deceased in office premises in Meadowpark Street, Glasgow (during which it would be reasonable to infer they would have mentioned their arrangement to meet later at the Tinto Firs Hotel), the appellant had spoken with each of the co-accused. Moreover, there had followed a series of calls with the co-accused O'Donnell and Paul McGeough, prior to the appellant receiving Robert Graham's call at 21.07 hours. Subsequently she had received further short calls from Paul McGeough and the accused O'Donnell and made three calls to Paul McGeough.

(h) What had been said by the appellant to police officers following on the murder, during a series of witness statements and statements under caution she had provided. The first statement was a witness statement given by the appellant at 16.15 hours on Monday 23 November 1998. In that statement, the appellant claimed that the last time she had seen the deceased had been before 1700 hours on 19 November 1998, during their meeting at Meadowpark Street, Glasgow. The second statement was a further witness statement given at 13.20 hours on 24 November 1998, in which the appellant had confirmed that the last time she had seen the deceased had been at their meeting in Meadowpark Street. The third statement was a further witness statement given by her at 16.20 hours on 25 November 1998 and was to similar effect. In all three of those witness statements, the appellant told the police that the last time she had seen the deceased had been around 16.45/17.00 hours on Thursday 19 November 1998 and that she had not been in the Tinto Firs Hotel during the course of that evening.

(i) On Wednesday 2 December 1998, the accused attended on a voluntary basis at Aitkenhead Road Police office with her lawyer. She made a lengthy statement to the police, during which she gave an account of her movements during the evening of 19 November 1998 which was significantly different to that she had provided in her witness statements. In the statement she provided on 2 December, the appellant indicated that on 19 November she had met the deceased at the Tinto Firs Hotel around 21.00 hours, that they had both left the hotel shortly thereafter in the Megane car, that after she had stopped the car at the exit from the car park two men wearing balaclavas had got into the back of the car and that the two men had ordered her to drive the car away from the hotel. She had done so. In her statement the appellant went on to describe having seen a flash and heard a bang, which she had taken to be a gun going off. She had then seen the deceased slumped in the front passenger seat. She had continued driving in accordance with the directions she was given. There had been a further shot. She was instructed to turn off the main road and to stop the car, as she drove it along a quiet road with trees on the left hand side. She was then ordered out of the car. The key to the car was thrust into her hand and she was told to go away and report the car stolen the following morning around 11.00 hours. In her statement the appellant indicated that she had walked away along the road, in the same direction as the car had been travelling. She spoke of having crossed a bridge over the motorway and of having reached Paisley Road West, before walking to the house of the co-accused Devine, at 58 Queen's Drive, Glasgow, which she had reached around 23.00 hours and where she had remained overnight. In her statement the appellant went on to indicate that when she reached 58 Queen's Drive she had not told Devine what had happened. The following day she had gone to Aitkenhead Road Police Office and had reported that the Megane car had been stolen from Queen's Drive. Later in the day she had made a similar report to Arnold Clark, to whom she had returned the key to the car.

(j) Having made that statement on 2 December 1998, the appellant remained at the police station on a voluntary basis. Whilst there she had agreed to accompany police officers in a motor vehicle, and pointed out to them the route she claimed that she had been directed to take on 19 November 19982009, after she had driven the Megane car away from the Tinto Firs Hotel. That route had involved the appellant turning left, as she drove out of the hotel car park, and had ended in a street in the Ibrox area of the city, a short distance to the south of the M8 motorway. The appellant identified that street as being where she had been ordered to leave the vehicle and from which she had walked, with the car key, across a bridge over the motorway, onto Paisley Road West and from there to the house of the co-accused Devine in Queen's Drive, Glasgow.

(k) Later on 2 December 1998, after the appellant had been cautioned in the presence of her solicitor, a police officer read over to her the statement she had made earlier and sought to interview her under caution in relation to the statement. The appellant declined to answer many of the questions she was asked.

(l) The following day, 3 December 1998, the appellant was detained under section 14 of the Criminal Procedure (Scotland) Act 1995 and interviewed under caution in relation to the police investigation into the death of the deceased. That interview, during which there were a number of breaks, extended over four hours. Throughout that interview the appellant declined to answer many of the questions she was asked.

(m) Subsequently on 7 January 1999 the accused attended at Aitkenhead Road Police Station with her solicitor, when she was cautioned and charged on the charges she subsequently faced during her trial. She replied "not guilty" to each of those charges.

(n) Technical evidence relating to the transmitters that had picked up the telephone calls made from the appellant's mobile phone to Paul McGeough's mobile phone. In particular the jury heard evidence that three calls made from the appellant's mobile phone to Paul McGeough on 19 November 1998 at 22.00 hours, 22.29 hours and 22.29 hours had been picked up by a transmitter in Newton Mearns (in the case of the first of the calls) and a transmitter in Giffnock (in the case of the other two calls). The jury heard evidence that this would not have occurred had those calls been made by the appellant whilst she was walking from where she claimed to have been ordered to leave the Megane car in a street in Ibrox, along Paisley Road West on her way towards Queen's Drive.

(o) The jury also heard evidence from which they would have been entitled to infer that, following upon the death of the deceased, the co-accused O'Donnell had been involved in the disposal of weapons that could have been used in the commission of the murder.

GROUND OF APPEAL 1A

Submissions for the appellant

[14] Counsel for the appellant stressed that when considering the appellant's Ground 1Aground of appea l it was important to recognise that the case against the appellant had been a circumstantial one. Accordingly it was necessary for the Crown to be able to point to factual circumstances which, when looked at in the round, were capable of giving rise to an inference of guilt beyond reasonable doubt. In support of that submission counsel referred to Al Megrahi v HMA 2002 SCCR 509, at paras 31 to 35and 32 in the opinion of the court delivered by Lord Justice General Cullen. Counsel also stressed that it was important to bear in mind that in a case in which the Crown was alleging an accused's guilt on the basis of antecedent concert, but one in which the actor or actors could not be identified, the guilt of the accused depended on whether there had been a common criminal purpose to which the accused had been a party and, if so, what was the scope of that common criminal purpose. Both the existence of and the nature and the scope of thee common criminal purpose required to be determined on an objective basis. The question in the case of an individual accused was what had been foreseeable as liable to happen - what was or was not obvious in that respect. It was also important to bear in mind that the common purpose in a particular case might change over time and acquire a more serious character. Reference was made to the opinion of the court delivered by Lord Coulsfield in McKinnon v HM Advocate 2003 SCCR 224 at paras 28 and 29.

[15] Counsel for the appellant argued that on the basis of the evidence before the jury the Crown had not been in a position to establish that the accused had subscribed to a pre-arranged plan to murder the deceased. It was accepted on behalf of the appellant that there had been sufficient evidence to entitle theo jury to hold that the appellant had been present when the deceased was killed. She had admitted that to the police. Counsel also accepted that it had been open to the jury to draw the conclusion that the appellant had driven the car to the car park in Newton Mearns. However he submitted there had been insufficient evidence led during the trial to hold that the appellant had been involved in a concerted criminal plan to murder the deceased in the manner that had occurred. Counsel accepted that some of the evidence the jury heard might have given rise to suspicions about the appellant's involvement in the murder, but that did not assist the Crown in proving the existence of a pre-arranged plan to murder the deceased. In particular, the fact that the Megane car had been hired in the appellant's own name was an obvious difficulty for the Crown. If it was being alleged that the hiring of a car had been an important element of the pre-arranged plan to which the appellant was a party, it was hardly consistent with that that the car had been hired in her name. It would have been easy for someone else to have hired the car.

Submissions for Crown

[16] In response the Advocate depute relied on the various chapters of evidence that he had previously outlined. He submitted that the evidence the Crown had led had disclosed a clear case to answer. The Crown's case was one of antecedent concert. The evidence demonstrated the existence of a murderous plan to abduct and murder the deceased. The whole evidence produced a compelling case against the appellant. When the court was addressing the important question of whether the appellant had become party to a common criminal purpose, it was important to view the actings of the appellant objectively. Likewise the question of what had been foreseeable as likely to happen had to be approached objectively (see Cameron v HM Advocate (No 1) 2008 SCCR 669, at paras 15 and 16 of the opinion of the court of the court delivered by Lord Justice General Hamilton).

[17] The Advocate depute argued that the jury had been entitled to take the view that the appellant had lured the deceased to his death, having hired the Megane car and persuaded him to be driven by her. The suggestion that individuals intent on killing the deceased had come upon the Megane car by chance, at the entrance to the Tinto Firs Hotel, was fantastical. No-one could have been aware that the appellant and the deceased were meeting at the Tinto Firs Hotel around 21.00 hours on 19 November and would be leaving shortly thereafter, unless they had been informed in advance about those plans by the appellant, whether directly or indirectly. The evidence of what Robert Graham heard when he called the appellant's mobile phone at 21.07 hours pointed to the appellant having been present when the deceased was murdered. The evidence relating to the appellant's continued possession of the key for the Megane car after the car had been destroyed, and the woman's voice being heard by the residents of property adjacent to the car park in Newton Mearns, pointed to the appellant having remained with the car after the deceased had been killed. Such evidence together with the fact that the appellant was not injured or killed; the fact that she had not contacted the police after the deceased was killed; her false claim that the Megane car had been stolen from her and the steps she took to mislead to the police as to the circumstances in which, and when and where, she came to leave the Megane car, all demonstrated that what had occurred had the hallmarks of a pre-planned murder and that the appellant had been a participant in the plan.

Discussion

[18] In our opinion, the jury heard evidence which entitled them to convict the appellant on the charge of murder. That evidence enabled them to hold that prior to the appellant leaving the Tinto Firs Hotel around 21.00 hours on 19 November 1998, the appellant had entered into a common criminal purpose, whose scope was such that the deceased was liable to be killed. That common criminal purpose involved the appellant hiring a car, driving the deceased in that car so that he met up with those who intended to kill him, being present whilst the deceased was killed, taking part in the subsequent destruction of the hire car and engaging in an attempt to cover up the circumstances in which the destruction of the hire car took place. In our opinion, inferences to that effect could have been drawn by the jury from the evidence we have summarised in paragraph [13]. We refer in particular to the steps the appellant took to hire the Megane car; the numerous telephone calls she had with others, including her co-accused, during the run up to the evening of 19 November 1998; the arrangements the appellant made to meet up with the deceased at the Tinto Firs Hotel, arrangements which no-one else could have been aware of, unless details of those arrangements had been divulged by the appellant, in which regard there was evidence that the appellant had made a number of telephone calls to the co-accused O'Donnell and Paul McGeough between 17.00 hours and 2100 hours on 19 November 1998; and the circumstances in which, at the appellant's suggestion, she drove the deceased away from the hotel in the Megane car. Also of relevance are the evidencefact that, within a few minutes of his leaving the hotel, the deceased was driven into contact with those who killed him; the evidence of Robert Graham as to what he heard over the phone, after he called the appellant at 21.07 hours; the nature of the murder, being one which it was reasonable to infer had been planned in advance; the evidence of the appellant having received telephone calls from the co-accused O'Donnell and Paul McGeough, during the hours immediately following the deceased's death; and the fact that the appellant took no steps to contact the police following the killing of the deceased. On the contrary, the evidence of the appellant's continued possession of the key for the Megane car and relating to the phone calls she made to Paul McGeough late in the evening of 19 November was capable of supporting the inference that the appellant had remained in contact with the Megane car, when it was driven (whether by her or others) to the car park in Newton Mearns, prior to being set on fire. That continuing association with the Megane car was also supported by the technical evidence the jury heard which pointed to the appellant's mobile phone having received calls whilst it was in the general area in which Newton Mearns lies. That technical evidence was inconsistent with the appellant's contention to the police, that, around the time when those calls would have been received, she had been in Paisley Road West on her way to Queen's Drive, Glasgow. In our opinion, although some of the evidence to which we have referred relates to the appellant's actings (and to events) after the deceased must have been killed, such evidence could have been relied upon by the jury as supporting the inference that the appellant was party to a pre-conceived plan to murder the deceased.

[19] Additionally, of course, the jury heard evidence that the appellant falsely alleged to the police and to Arnold Clark that the Megane car had been stolen; and that she took steps to mislead the police as to the circumstances in which she ceased to be in possession of the Megane car. In our opinion, this is a case where the lies which the appellant told the police in the various witness statements she provided can be said to have had some evidential value and could have been taken into account by the jury in assessing the other evidence that was before them (see Bovill v HM Advocate 2003 SCCR 182).

[20] No doubt it could have been argued on behalf of the appellant, before the jury, that whatever common criminal purpose the appellant may have entered into, and whoever she may have met up with after she drove away from the Tinto Firs Hotel, the scope of any common criminal purpose did not include that of murdering the deceased. However, the test we have to apply is whether, when the evidence before the jury is viewed objectively, it was open to them to reach the conclusion that before she left the hotel the appellant had become a party to a common criminal purpose whose scope was such that it was foreseeable that the deceased was liable to be murdered. For the reasons we have set forth, we consider that the evidence was capable of supporting such conclusions. In these circumstances, Gground of appeal 1A on behalf of the appellant, which is set out in para [54] of this opinion, falls to be repelled.

Ground of appeal 1C

[21] On 7 April 2010, the Court allowed to be received "Revised Additional Grounds of Appeal" on behalf of the appellant (document 1C of the appeal court process). Those grounds, which we refer to as Ground 1C, were argued before the Court on 18 and 19 January 2011. They are in the following terms:

" Since the conviction the Crown has disclosed two additional statements given by the witness William McKinnon. The statements were not made available to those acting for the accused at the trial. In particular, the statement dated 26 July 1999 contains information which was essential to the proper preparation and presentation of the defence case. In particular the lack of disclosure meant that there was no opportunity for those acting for the defence to cross-examine the witness on the contents of these statements.

While the burden of challenging evidence of William McKinnon fell primarily on those who acted for Francis O'Donnell the appellant had an interest in seeing that his credibility and reliability were fully tested at the trial.

Given the importance of his evidence to the Crown's contention that there was a common plan to murder the deceased to which the appellant subscribed the failure in the duty of disclosure materially prejudiced the fairness of the appellant's trial.

In any event, the breach of duty having occurred, the Lord Advocate was acting incompatibly with the appellant's right to a fair trial guaranteed by Article 6(1) in seeking the appellant's conviction. Such an act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998."

Ground 1 C thus arises out of failures on the part of the Crown to disclose witness statements in advance of the appellant's trial.

[22] During the hearing in Juneanuary 200911, Mr Burns, senior counsel for O'Donnell also argued a number of ground s of appeal based on failures on the part of the Crown to disclose police statements given by William McKinnon. During the hearing in January 2011, Mr Gilchrist, by then senior counsel for O'Donnell, argued a similar ground based on the failure of the Crown to disclose a police statement given byand Christina Lawson (Ground 1E) and a related ground allegingation of defective representation on the part of those who had acted for O'Donnell during the trial (Ground 1G). All of those grounds involved consideration of the evidence of McKinnon, who had been a a former co-accused of the appellant and O'Donnell on an earlier indictment in this case., McKinnon who was called as a Crown witness during their trial which gave rise to the appellant's conviction. The importance of McKinnon's evidence to the Crown case against O'Donnell is summarised in para [15] of the O'Donnell Reference Opinion.

[23] McKinnon also gave evidence about his dealings with the appellant. They were business associates in connection with the "Pretty Woman" escort agency. Some months before the date of the murder, McKinnon had been introduced to the appellant by O'Donnell, who was a friend of his of some years standing. The appellant was introduced to him as "Amanda", although he subsequently learnt her correct name. Discussions with the appellant had led to his becoming involved in operating an escort agency, which was based at premises in Clydebank. McKinnon had worked at the premises and had been in regularly been in telephone contact with the appellant. The co-accused O'Donnell drove McKinnon, when necessary, and was involved with the appellant and McKinnon in discussions about the business. Through the co-accused O'Donnell McKinnon had met the deceased, who he understood to be the "Mr Big" who was behind the escort agency business. McKinnon's day to day dealings had beenwere with the appellant, with whom he had regular telephone conversations. McKinnon spoke to having received a couple of telephone calls from the appellant, during the days before the deceased's body was found. She who had been looking for the deceased., during the days before his body was found. She had not phoned him after the body was discovered on Monday 23 November 1998.

[24] When McKinnon was cross-examined by senior counsel for the appellant, no challenge was advanced to anything he had said during his evidence in chief. On the other hand, dDuring an extensive and rigorous cross-examination, on behalf of O'Donnell, McKinnon was challenged about the evidence he had given incriminating O'Donnell, the appellant and Devine and in particular what he alleged O'Donnell had said about the murder, during a visit the pair of themy had made to Blackpool some weeks after its occurrencethe murder. At one point, McKinnon gave evidence that at one point said that O'Donnell, when talking about the murder, had stated he had "done it wi two other bams" and had mentioned the names of Pat and Mary. The jury was, of course, directed by the trial judge that that evidence was not evidence against the appellant (pages 66-67 of charge).

[25] The grounds of appeal relating to McKinnon's evidence that were argued on behalf the co-accused O'Donnell are consideredsummarised in paras [24] - [26] of the O'Donnell Reference Opinion, in these terms:

"[24] The second document containing grounds of appeal was lodged on 30 January 2008, 1D of the appeal court process. It contains several grounds, some of which have not been supported by counsel for the appellant. Paragraphs 3 to 6 of this document contain grounds which have been supported. These can be briefly summarised in this way. It is said that, at a procedural hearing on 11 July 2007 in the present proceedings, the Crown disclosed two additional statements from the Crown witness William McKinnon, which had not been disclosed to the defence at the trial, or during the course of the original appeal. These statements were not available for consideration by the Commission during their investigations. It is claimed that these statements contained information which was essential to the proper preparation and presentation of the defence case. The lack of them is said to have resulted in inability to cross‑examine the witness William McKinnon fully. It is said that a statement dated 26 July 1999 contained details of the alleged confession by the appellant to William McKinnon at Blackpool, which differed in material respects from those that he had given in previous police statements and in his evidence. Now it is contended that the disclosure of this particular statement would have provided the defence with significant additional material with which to undermine the evidence of William McKinnon and would have further emphasised the inherent problem in the Crown case of the appellant's admitted presence in Dublin at the time of the killing. It is contended that it would also have strengthened the defence proposition that William McKinnon had engaged in a process of embellishing his evidence over time.

[25] The third document containing grounds of appeal is dated 2 July 2009 and is 1E of the appeal court process. It contains nine paragraphs, the material parts of which may be summarised in this way. It is said that, approximately two weeks in advance of the hearing of this case before this court on 9 June 2009, the Crown disclosed inter alia a statement from one Christina Lawson, who was Crown witness No.43 on the indictment. This statement had not been disclosed to the defence at the trial, or during the course of the first appeal, nor had it been disclosed to the Commission during the course of their investigations. In the statement, the terms of which are more fully quoted at paragraph [74] below, Christina Lawson, who, at the time referred to in it, was the girlfriend of William McKinnon, said to the police:

"About a month ago I remember seeing something in the papers about a murder inquiry. Willie Kinnon [(sic): William McKinnon] phoned me up and asked me if I had seen the papers about the murder and I asked why. He told me that he wasn't involved but that he was part of the cover-up. When I asked him what he meant he said that he hadn't murdered him but that he had helped to get rid of the body. I didn't ask him any more because Willie is always telling me stories to make out that he was a gangster. He phoned me from Blackpool and said that he wanted to get away from things. He had too much pressure from the police and people. He was in Blackpool with his friend Frank [the appellant]."

The witness Christina Lawson had been precognosced by the defence, but at no time had she disclosed the telephone call referred to with William McKinnon. The statement by Christina Lawson had not been lodged as a production at the trial, at which ultimately she was not called as a witness by either the Crown or the defence. It is contended in this ground of appeal that this statement contained information which was essential to the proper preparation and presentation of the defence case. The Crown's failure to disclose the material in advance of the trial meant that the defence had been unable properly to prepare and conduct the appellant's defence. In particular, they had been unable to cross-examine Crown witness William McKinnon as to the contents of the statement. The Crown's duty had been to disclose the information in advance of the trial. By withholding this statement it is contended that the defence were denied information which, in all likelihood, would have resulted in a special defence of incrimination being lodged against William McKinnon, if not for the charge of murder then perhaps for the charge of attempting to defeat the ends of justice. Further, it is claimed that the information concerned would have provided the defence with significant additional material with which to cross-examine William McKinnon and to undermine his credibility as a witness. He was a crucial witness for the Crown and if the jury were not satisfied that he was credible, then there would have been insufficient evidence to convict the appellant. The content of the statement by Christina Lawson was wholly inconsistent with the evidence given by William McKinnon and his position taken up in numerous statements to the police. At no time had he stated to the police, or in evidence, that he had been involved in moving the body of the now deceased. It is also contended that the timing of the conversation between William McKinnon and Christina Lawson was of significance. It was when William McKinnon had been in Blackpool with the appellant that he claimed that the appellant had admitted to him that he had been involved in the death of the deceased. It is argued that if the statement of Christina Lawson had been available to the defence it would have provided material with which to undermine that alleged confession. That confession, however interpreted by the jury, was the single most significant piece of evidence against the appellant. It is also contended that the defence were denied information which would have provided an alternative explanation as to the element of special knowledge attributed by the Crown to the Blackpool confession. The Crown had argued at the trial that the appellant must have been involved in the murder of the deceased in order to have confessed to specific details that only someone intimately involved in the murder would have known. If William McKinnon had been involved in the disposal of the deceased's body, it followed that he would also be familiar with the injuries sustained. It is contended further that this ground of appeal has an impact on the first ground of appeal in document 1B. It is said that, in the light of the content of Christina Lawson's statement and the contents of the averments in this ground of appeal, there was no compelling Crown case against the appellant. If the court were to hold that the trial judge had misdirected the jury, then that had led to a miscarriage of justice.

[26] The fourth document containing grounds of appeal, lodged on 22 September 2010, is 1G of the appeal court process. The contents of this document are related to the contents of document 1E. It is said that, subsequent to the lodging of document 1E on 25 November 2009, the Crown lodged certain pages from what was Crown Production 72 at the trial, the transcript of a tape recording of an interview between police officers and a suspect, namely William McKinnon, on 24 March 1999. In that interview it is said that police officers make reference to a statement taken from Christina Lawson by police officers and also a statement taken from her by a procurator fiscal. The police officer questioning William McKinnon used those statements as a basis for questioning him. From the police questioning it would appear that Christina Lawson had given statements to the effect that William McKinnon had telephoned her from Blackpool and told her inter alia that he had been involved in the disposal of the body of the deceased. Therefore, although the statements of Christina Lawson were not disclosed to the defence prior to the trial, there was at least some information which could have been gleaned from the interview that would have informed the defence of the position of this potential witness. Although not relieving the Crown of the burden of disclosure, that could have prompted the defence to request copies of the statements referred to and to consider acting on them. It is averred that senior counsel who conducted the trial has taken the view that, based on the information that they had at the time, the defence should have led evidence from Christina Lawson. It is said therefore that this particular ground of appeal is a corollary of ground of appeal 1E. On the assumption that the court was to find that the Crown had failed in its duty of disclosure in relation to the statement of Christina Lawson, but that the defence had had knowledge of the contents of that statement, it might be that a ground of appeal based on the failure to disclose would fail. However, in such circumstances, it is contended that the failure to obtain further information from the Crown about statements of Christina Lawson and to lead evidence from her, in order to attack the evidence of William McKinnon, constituted defective representation on the part of those representing the appellant at the time of the trial. It is contended that the ultimate question for the court to decide when looking at grounds of appeal 1E and 1G is whether the appellant, in the absence of the disclosure, or in the absence of the defence acting on the oblique disclosure constituted by the contents of Crown Production 72, had a fair trial"

[27] The Court was addressed on these grounds of appeal by senior counsel for O'Donnell (paras [32] - [45] ) and by the Advocate depute (paras. [52] - [56]). Having considered the submissions received, the Court has rejected all of the grounds of appeal. Our reasons for doing so are to be found in paras. [72] - [ 85] of the O'Donnell Reference Opinion. In summary we reached the conclusion that the additional police statements of William McKinnon would not have added anything to the defence case. In particular it would not have enabled the extensive cross-examination of William McKinnon to have had a broader scope than it did. As far as the police statement of Christina Lawson is concerned, we take the view that any reader of the transcript of the police interview of William McKinnon on 24 March 1999 would have been aware of the crucial parts of Christina Lawson's police statement. In such circumstances it cannot be concluded that the non-disclosure of the police statement of Christina Lawson caused O'Donnell's trial to be unfair. As far as the allegation of defective representation of O'Donnell is concerned, we are not persuaded that the explanation of the non-use by senior counsel for O'Donnell of the material derived from Christina Lawson's police statement, when he was cross-examining William McKinnon, was anything other than a proper exercise of professional judgment.

[286] It will be noted that some of the issues raised in those grounds of appeal on behalf of O'Donnell are similar to the issues that arise under Ground 1C on behalf of the appellant. On 19 January 2011 the Court granted the appellant leave under section 110(4) of the Criminal Procedure (Scotland) Act 1995 to rely on the police statement of Christina Lawson, dated 21 December 1992008, in arguing this Gground 1C

Submissions for the appellant

[297] In support of Ground 1C, counsel for the appellant stressed that the test which fell to be applied when considering a failure to disclose evidence on the part of the Crown was to be found in McInnes v HM Advocate 2010 SCCR 286. Counsel for the appellant adopted the submissions which had been advanced on the issue of disclosure by senior counsel for O'Donnell. He argued that the Court would require to apply the test laid down in McInnes to the factual context disclosed by of the evidence relating to the appellant, which was different to that relating to O'Donnell. On the other hand, as the Crown had sought convictions against both the appellant and O'Donnell on the basis that each was acting in concert with those who actually killed the deceased, the court required to bear in mind that it had been open to the jury to take account of the evidence of William McKinnon when considering the cases against each of the appellant and O'Donnell. The jury had heard evidence that the appellant was an associate of O'Donnell. During evidence in chief, William McKinnon had given evidence incriminating O'Donnell. It was accordingly in the interests of the appellant, as well as the interests of O'Donnell, that William McKinnon's credibility be undermined.

[3028] Counsel supported the line of argument advanced on behalf of O'Donnell that during the trial it had not been possible to take the attack on the credibility of William McKinnon as far as it might have been on account of the Crown's failure to disclose the police statements given by William McKinnon and Christina Lawson. During the trial senior counsel for the appellant had been the first defence counsel to cross-examine William McKinnon. His cross-examination had been limited in scope. It appeared that senior counsel may have relied on senior counsel for O'Donnell to challenge the evidence of William McKinnon. Furthermore, as had been argued on behalf of O'Donnell, during the present appeal, there had been a failure on the part of those representing O'Donnellhim at the trial. They had failed to obtain further information from the Crown about the statement of Christina Lawson referred to in Crown production 72, the transcript of the police interview of William McKinnon, and to lead evidence relating to that statement in support of an attack on the credibility of William McKinnon. As a consequence the cross-examination of William McKinnon on behalf of O'Donnell had been limited in scope and O'Donnell had suffered as a consequence. The appellant had been in a similar position. As a consequence there was a realistic possibility that the appellant had not received a fair trial. The appellant had not received a fair trial, nor had O'Donnell. That was the position whether that issue was considered at common law or in terms of article 6 of the European Convention on Human Rights.

Submissions for Crown

[3129] The Advocate depute responded to these submissions on behalf of the appellant in similar terms to those he had deployed in replying to the submissions of senior counsel for the O'Donnell. He accepted that the police statements of William McKinnon and Christina Lawson should have been disclosed. However, there was no real possibility that the jury would have reached a different verdict in respect of the appellant had the police statements of William McKinnon and Christina Lawson been disclosed prior to the trial. The Advocate depute he submitted that the police statementsose of William McKinnon would not have provided any material assistance in challenging his evidence. As far as the failure to disclose the police statement of Christina Lawson was concerned, having regard to the terms of the transcript of the police interview of William McKinnon of 24 March 1999 (Crown production 72), it could not be argued there was anything material in the police statement of Christina Lawson which was not already known to those acting for the appellant during prior to the trial. There had been no risk of prejudice arising from the failure to disclose Christina Lawson's police statement. In these circumstances it could not be said that the appellant's defence had not been presented to the jury or that the appellant had not received a fair trial.

Discussion

[320] We reject Ground 1C. As we have explained in the O'Donnell Reference Opinion (para [73]), we do not consider that the contents of the police statements given by McKinnon on 7 and 26 July 1999 would have enabled anyhis cross-examination of him to have been taken any further than it was taken by senior counsel for O'Donnell. In that regard it is important to note that the experienced senior counsel who defended the appellant during the trial restricted his own cross examination of McKinnon. He refrained from challenging any of the evidence that McKinnon had given during examination in chief. It is easy to understand why he did so. There was, of course, no dispute that the appellant and McKinnon were business associates and that McKinnon and O'Donnell were friends of long standing. In such circumstances there would have been no basis for challenging the evidence the jury had heard that the appellant and McKinnon had been in telephone communication with each other around the date of the murder. Furthermore William McKinnon was a known associate of the co-accused O'Donnell. The potential dangers of cross-examining McKinnon at length on behalf of the appellant, as to the contents of any dealings or telephone calls between them or as to McKinnon's dealings with O'Donnell, were obvious. Significantly the Court did not receive any submissions on behalf of the appellant pointing tofounding on any passages in either of the police statements of McKinnon that mightcould have founded any additional lines of cross-examination which could have been pursued with McKinnon, whether on behalf of O'Donnell or the appellant. As we have indicated in the O'Donnell Reference Opinion the police statements would have added nothing material to the defence case of O'Donnell. We take a similar view in respect of the Crown case against the appellant, which we have discussed in some detail earlier in this Opinion. In these circumstances we are not persuaded that had the additional two police statements of William McKinnon been disclosed prior to the trial there would have been a real possibility of the jury returning a different verdict in respect of the appellant.

[331] Turning to the police statement given by Christina Lawson, we have dealt with this statement in paras [74] - [80] of the O'Donnell Reference Opinion. As we explained in that opinion, her police statement of 21 December 1998 was extensively quoted from by police officers when they interviewed McKinnon under caution on 24 March 1999. A transcript of that interview was Crown Production 72 during the trial. Any reader of that transcript, and in particular those acting for the appellant during the trial, would have been aware of the existence of Christina Lawson's police statement and have been aware of the important parts of that statement. In these circumstances, for the reasons we have given in the O'Donnell Reference Opinion, while there was a failure on the part of the Crown to disclose timeously the police statement of Christina Lawson to the appellant's representatives, we are not persuaded it cannot be concluded that the appellant's trial was unfair in consequence. In our opinion, even if the police statement of Christina Lawson had been available prior to the trial there would have been no realistic possibility that the jury would have reached a different verdict.

[342] Ground 1C does not contain any allegation of defective representation on the part of those acting for the appellant during the trial. Notwithstanding the absence of such a contention, counsel for the appellant sought to adopt the submissions relating to defective representation that had been advanced by senior counsel for O'Donnell. We reject such submissions on behalf of the appellant for the similar reasons to those we have set out in paras [81] - [85] of the Opinion in O'Donnell Rreference Opinionral. We are not persuaded that the fact that William McKinnon was not cross-examined about the contents of Christina Lawson's police statement (as disclosed in Crown Production 72) is indicative of any failure on the part of the senior counsel acting for O'Donnell or, for that matter, the senior counsel acting for the appellant at the trial. In these circumstances Ground 1C falls to be rejected.

Decision

[353] In view of the foregoing, the appellant's appeal against conviction must fail.