Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Carloway Lord Kingarth	[2012] HCJAC 123 Appeal No: XC659/05 OPINION OF THE LORD JUSTICE GENERAL in the APPEAL AGAINST CONVICTION AND SENTENCE by SEAN TOAL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Mackenzie; Mann Solicitors, Glasgow

Respondent: Bain QC, AD; Crown Agent

20 September 2012

I. THE CONVICTION

[1] On 26 July 2005 at Glasgow High Court the appellant was found guilty of the following charge:

"(1) on 8 August 2004 at Tirich Mir, Mollinsburn Road, and Annathill Gardens, both Annathill, Coatbridge you DAVID WINTERS, GARY ORR, SEAN TOAL and GRANT YOUNG did assault Paul McGilveray, now deceased, and repeatedly punch and kick him on the head and body, attempt to strike him on the body with a bird bath and repeatedly strike him on the head and body with a knife or knives or similar instruments and you did murder him."

[2] The Crown withdrew the charge against Winters and Young. The jury found the charge against Orr not proven. On 24 August 2005 the appellant was sentenced to life imprisonment with a punishment part of fifteen years.

[3] The appellant appeals against conviction and sentence. We are concerned at this stage only with the appeal against conviction.

II. THE TRIAL

The Crown case and the appellant's defence

[4] The Crown case was that the appellant killed the deceased by one stab wound to the chest. The case against Orr was that he participated in the murder by his presence and encouragement. The appellant accepted that he had inflicted certain wounds on the deceased. His defence was that those wounds were not the cause of death. He incriminated Young for having inflicted the fatal wound.

The background

[5] In the evening of 7 August 2004 there was a party at the house of Rachael Condie, the appellant's girlfriend. The four accused were present with Condie and Lindsay Rooney, the girlfriend of the deceased.

The eye witnesses

Lindsay Rooney

[6] Rooney said that in the early evening the appellant asked her about bruising that he had noticed on her shoulder. She told him that she had been carrying on with the deceased. She said that the appellant was "getting all worked up about it" and was angry towards the deceased. The appellant said "I'll fucking kill him".

[7] Rooney said that the deceased called her on the telephone about coming to the party. She handed the phone to the appellant, who told him "Come up as long as no bother starts." The deceased asked Rooney what the appellant meant by that.

[8] In the late evening the deceased turned up at the house and spoke to Rooney in the front garden. Then the appellant and Orr pushed past her, knocking her over. The appellant struck the deceased on the chest area. In cross examination Rooney said that the blow was to the chest or head, to the chest upwards. She said that she became covered in blood. She had broken her ankle and was helped inside by Winters. The house was empty.

[9] The appellant, Young, Winters and Condie returned to the house. The police arrived. She tried to tell them what had happened, but Young told her not to say anything.

[10] Rooney was cross-examined about other aspects of her account to the police. She had told police initially that her boyfriend had started a fight in the garden, which began before she left the house. She had been knocked over and covered in blood, but she did not know who knocked her over or whose blood it was. In court she said that she had given a different account to the police because she had been drunk, in shock, in pain and "mixed up."

Joseph Gorman

[11] Joseph Gorman was a friend of the deceased. His partner was the deceased's cousin. On the evening of the incident he drove the deceased and Jonathan Cocozza to the locus to pick up Rooney. On the way he heard the deceased say on the phone that he was going there only to pick up his girlfriend and that he did not want any trouble.

[12] On arrival, the deceased left the car first and walked to the door. Gorman then heard girls screaming. He and Cocozza ran to the house. He saw women being pushed out of the way and men "piling out the house." The deceased was backing off from someone who had two knives.

[13] Gorman told the police that the assailant had a "pig nose wie square features". The assailant had his top off and was attacking the deceased using stabbing movements that made contact with the chest area. There was another man behind the assailant. Gorman jumped over Rooney and punched the assailant square on the mouth. He also grabbed one of the assailant's knives.

[14] Gorman saw Cocozza in a hedge fighting with someone whom he could not see. This man stabbed Cocozza in the arm. Gorman "docked" him and got the deceased and Cocozza to leave the garden immediately.

[15] They returned to their car while the men who had fought with them returned to the house. Gorman could not start the car. They decided to flee. The other men came back and chased them. One of them hacked once with a knife at the deceased's head. He was the smaller one. Gorman said that he thought that it was the appellant.

[16] The deceased collapsed and died soon after. Gorman put the knife that he had taken from the assailant next to a fence. He identified the knife that the police recovered from the fence (Crown label 3) as the knife in question.

[17] Gorman identified the appellant as the assailant at an identification parade and in court. The advocate depute initially understood Gorman to have identified Young in the dock, but after the trial judge intervened to obtain clarification, Gorman said that he was identifying the appellant.

[18] When he was cross-examined on behalf of Orr, it was put to Gorman that he had told police that the assailant was wearing a t-shirt. Gorman said that he had his top off. Gorman was cross-examined by counsel for the appellant about his statement to the police that the assailant was the smaller one. Winters, Orr and the appellant were over six feet tall. Young was 5 feet 8 inches tall. Gorman adhered to his identification.

Jonathan Cocozza

[19] Jonathan Cocozza was the deceased's cousin. He heard the deceased speaking on the phone to Rooney on the way to the locus. After that the deceased said that there might be a fight when they arrived.

[20] When the deceased knocked on the door, four men came out. One lunged at the deceased's chest. At that point Cocozza left the car and followed Gorman. He started fighting with someone in the garden. They ended up in the hedge. Then Gorman came towards him. A different man then came from the front door and struck Cocozza's arm with a knife. This was the assailant who had struck the deceased. The assailant had "a kind of piggy nose and very wide nostrils". The assailant took off his top after the blow to the deceased.

[21] Cocozza identified the appellant in court as the assailant. He had failed to identify him at an identification parade. He said that he could identify him in court because the assailant was not among about 14 people, as he would be at an identification parade.

[22] In cross-examination, Cocozza admitted that he had told the police that he could definitely identify the two men who fought with him in the garden. At the identification parade he had identified a stand-in as the assailant because of his pig nose. He was "pretty sure" that the other man was Young because Young was crying and was therefore likely to have been involved. Counsel put to Cocozza that he would accordingly have no qualms about identifying someone in the dock on a similar basis, even if he could not truly identify them. He suggested that this was what Cocozza had done at the parade. Cocozza agreed, but said that in court he could get a good look at the accused without another ten people sitting around them. Counsel again suggested that as Cocozza purported to identity an accused just because he was crying, he might do the same because that person was in the dock. Cocozza denied this.

[23] Finally, Cocozza made this concession:

"Counsel: ... the simple fact of the matter is that you could not identify at the identification parade, [the appellant], even as a possible, maybe being involved, you couldn't even get him as a 'maybe', and if he had been the person who was right up beside you that you said you could definitely identify, you'd have picked him out in an identification parade. -

Witness: You'd think so.".

Rachael Condie
[24] Condie told the police that the appellant might have said something like "I'd do him", "I would batter him" or "I would kill him". She was in the front garden when the fighting took place. Later, when she was some way down the road the appellant and Orr came running back towards her. The appellant had a knife. His mouth was cut. He told her: "I only hit him twice in the head with the knife" and "He burst ma lip".

[25] They returned to the house together. The appellant handed a serrated knife to her. She returned the knife to the knife block in the kitchen, which was otherwise empty. It held five knives. Crown label 2 was the knife block and the serrated knife. Condie was given a blood stained t-shirt which she understood was Young's. She was also given the appellant's blood stained t-shirt. The police arrived. The appellant said that the incident was caused by gypsies.

[26] In cross-examination Condie accepted that, when the deceased arrived, trouble was no longer expected. She agreed that the atmosphere had mellowed.

The appellant's extra-judicial statements

At the locus

[27] The police took all of those who were still in the house to police stations to be interviewed as witnesses. As the appellant, Young and Winters walked towards the police vehicle, a fight broke out between Young and Winters. The appellant became agitated, gestured towards them and said to the police: "It's fuck all to do with they two."

At the police station
[28] When interviewed at the police station as a witness, the appellant said that he had stayed in the house throughout the evening. After his statement was completed, he was told that a person had died. He then said: "Tell them it was me that done it. I caused the guy to die." He was cautioned and asked to repeat his comment. He said: "I caused the guy to die. I chased him down the street and hit him with a knife."

The tape-recorded interviews

[29] After this, the appellant was interviewed on tape. He began by telling the police that he had answered the door to the deceased. The deceased head-butted him twice. The appellant fell, got up, went back inside and got a knife. He entered the garden. The pal of the deceased had pulled a knife out. The deceased and his pal were "kinda goin' fur it". The deceased ran off. The appellant chased him and hit him twice on the head with a knife. No one else was involved.

[30] The appellant told the police that he had spoken to the deceased on the phone and had told him "There's nae trouble startin' if you come tae the door." The appellant expected that there would be a fight when the deceased arrived.

[31] The appellant had seen a kind of red mist because the deceased had brought trouble to his girlfriend's house. He "hit a flakey", was "psycho", "hit a loopy turn", and went "menta[l]."

[32] The appellant repeatedly said that he was responsible for killing the deceased, because he thought that the deceased had died from the blows to his head. He had not otherwise hit the deceased or stabbed anyone.

[33] The appellant was asked if the other man with the knife, namely Gorman, was injured, who was likely to have injured him. He answered:

"Ah couldnae tell ye, it wis probably me, init, ... if ah've done it tae him ah've probably done it tae him an' all and ah'm, ah, ah, cannae remember, ah've obviously took a psycho turn and ah cannae remember."

[34] The appellant suggested that the deceased and the other man were out to attack him. He struck the deceased just after or as the other man went to stab him. He explained:

"Well ... ah remember hittin' him and ah enjoyed hittin' him at the time 'cause ah'm pretty sure he'd have enjoyed fuckin' wackin' me wae it, do you know what I mean?"

[35] The appellant at first said that no-one else was involved in the fight, but over the next few hours he was to implicate Young and to link Orr to the scene.

[36] The appellant said that he saw no-one else at the party with a knife. He denied that he was covering for friends. Only he, Winters, Young and the two women were in the house. When the appellant was chasing the two boys he did not know whether Winters and Young were running behind him. After he returned to the house, he told Winters and Young that he had "fucked that cunt ower the heid wae that blade." They said nothing to him about anything that they had done. The appellant later said that if the deceased had been stabbed with a knife, rather than hit in the head, this had been done by Winters or Young.

[37] After a break of nearly an hour, the appellant was asked whether he had left anything out. He then said that he, Young and Winters had got knives, although he was later doubtful about Winters. When the three returned to the house, Young admitted having stabbed the deceased. Young took a knife from the kitchen. After the appellant struck the deceased, Young appeared to stab him in the back. He collapsed immediately. This contradicted the appellant's earlier claim that the deceased had chased the appellant. He said that Winters was close by. The appellant was told that there was a trail of blood from the garden. He said that either Winters or Young must have stabbed the deceased there.

[38] When asked why he had not at first told the police about Young, the appellant said that he did not want to be called a grass. If the death was caused by head injuries, the appellant would take the blame for it. If it was caused by stab wounds, he would say that it was Young's fault.

[39] He was asked whether anyone else was there. He said there was not. He was asked about Orr. He then admitted that Orr had been there but had left about an hour before the incident. He then said that Orr was present during it.

The appellant's evidence

[40] The appellant gave evidence broadly in line with his first position at his police interview. One difference was as follows. After his interview he said that he was head-butted, returned inside to get a knife and then went to the garden. In court he said he was head-butted, returned to put his trainers on, went into the garden, saw people with knives and only then obtained a knife.

[41] In cross-examination, he said that he had not seen Young stab the deceased. The appellant was questioned about his failure to tell the police about putting his trainers on before getting a knife. He said that he had not gone into all of the details as he had just been told that he had killed a boy. The appellant was taken through his police interviews. He was asked about seeing a "red mist", hitting a "flakey", and going "psycho". He departed from certain aspects of his account to the police. He said that it was probably not true that the deceased chased him. He must have been getting mixed up with the deceased's friend. His initial explanation that the friend pulled a knife out did not refer to the incident in the garden. It happened after the pursuit. He did not know that there would be trouble when the deceased arrived. He did not know why he told the police otherwise. The contradictions in his account to the police about Young were caused by his being mixed up, by his belief that he had killed someone and by his reluctance to involve others. He had told Young and Winters that he had struck the deceased over the head with a blade, as he had explained at his interview, though he had not then used the particular language that he used at interview. He was ashamed about telling the police that he enjoyed hitting the deceased.

The evidence of Orr

[42] Orr said that he did not hear the appellant make threats towards the deceased on seeing Rooney's bruises. Young had said that he "plugged" someone, but it was not clear when he said this. Orr said that the appellant struck the deceased after the chase.

The medical and scientific evidence

[43] Death was caused by one stab wound to the chest. The knife entered the lung and severed two arteries but did not penetrate bone or cartilage. In this way, only a lower range of force was necessary.

[44] Several kitchen knives were recovered from the locus. The Crown pathologist, Dr Marjorie Black (now Dr Turner) preferred the knife label 3 to the knife label 4 as the murder weapon because label 4 was "too wide."

[45] A bread knife (label 2) was consistent with the deceased's head wounds. It contained DNA profiles of the appellant and the deceased. The appellant's clothing was heavily stained with the deceased's blood.

[46] Young's clothes were also stained with the deceased's blood. Label 4 had Young's fingerprints and had been in contact with the blood of Cocozza and the deceased.

The advocate depute's speech

[47] The advocate depute said that the efforts made by the appellant to distance himself from his statements to the police affected his credibility. He said that the Crown case depended largely on the jury's appreciation of four witnesses, Condie, Rooney, Gorman and Cocozza; but perhaps less so in the case of Cocozza. He said that Cocozza's evidence was "very ... unusual about identification." He invited the jury to consider whether it fitted with Gorman's "clear and emphatic" identification.

[48] The advocate depute commented on Young's failure to give evidence as follows:

"Now, speculation, ladies and gentlemen, is something that all juries are warned by the judge to avoid. There is a natural tendency in all of us to wonder about certain things in the course of a trial. For example, there was reference to other people who Mr Orr met up with and you may wonder why did the Crown not call Mr McConville or some other person, whether they could add anything.

You cannot speculate on what these witnesses would have said. Equally in this case, though there was an adjournment for this purpose, you never heard the evidence from Mr Grant Young or Mr David Winters. The Crown cannot call accused persons when they are accused. The defence could if they wished. You can't speculate on what ... may have been said. You just have to go on the evidence you have heard in court. There is no point in saying what would Mr Young have said if you had heard him in court or what would Mr Winters have said? That is all irrelevant."

Defence counsel's speech

[49] Counsel for the appellant said that the evidence of blood-staining was neutral, since both the appellant's and Young's clothes were blood stained. He said that the appellant's account to the police was the key to the whole thing. He repeatedly said that the appellant's proposition had not changed fundamentally from the outset of the tape-recorded interviews. He first expressed his guilt for having killed the deceased while he believed that the wounds to the head were fatal. That added weight to his denial of having stabbed the deceased in the torso. He was either telling the truth, or was a devious genius performing a double bluff. For the Crown to succeed it must establish that the appellant was a genius who had "bluffed the whole system".

[50] Counsel took up the advocate depute's comment about Young. He said that he would not call Young because Young would not admit it to him. He asked: "What is that going to do for me?" The advocate depute said that he could not call Young, but counsel did not believe a word of it. The libel against Young could have been withdrawn before the end of the Crown case. That would have made him a competent and compellable witness. The advocate depute's suggestion that he could not call Young was "categorically ... not true." It was "bunkum." The advocate depute had displayed "effrontery" in saying this. He concluded:

"I said I would deal with that because it was mentioned, because it is neither here nor there, the truth of the matter, to either of our cases ... It is the red herring. It has got nothing to do with anything in the end of the day because what matters is not who didn't give evidence. What matters is who did."

The judge's charge

[51] The trial judge told the jury:

"Do not speculate as to why persons have not given evidence or what they might have added or not to the case had they given evidence. You must consider this case only on the evidence that you have heard ... "

[52] She explained that the identification of an accused as the perpetrator need not come from two eye-witnesses. Evidence, sometimes of great weight, could come from indirect sources or from circumstantial facts. She gave specific directions on eye-witness identifications. She gave the standard warnings as to the fallibility of such identifications and the need to assess them with particular care. She suggested to the jury, in accordance with good practice, how they should approach that evidence. She did not give specific directions regarding dock identifications.

III. Subsequent developments

[53] After the trial, the appellant's agents learned that the police had recovered a pair of trainers from the house. They had been sent for scientific analysis but had been overlooked before the trial. The Crown then had the trainers analysed. The analysis showed that they had been worn by Young and were stained with blood from the deceased.

IV. The grounds of appeal

[54] The following are the grounds of appeal: (1) that the advocate depute's comments to the jury regarding Young's not being a witness caused prejudice to the appellant which was not corrected by the trial judge's directions (Grounds 1 and 2); (2) that the trial was unfair as a result of the Crown's reliance on a dock identification by Cocozza and the trial judge's failure to direct the jury as to the dangers of dock identification (Grounds 4(i) and 6(i)); (3) that the Crown failed to disclose the existence of Young's bloodstained trainers (Ground 4(ii)); (4) that the trial judge gave inadequate directions as to the eyewitness evidence (Ground 6(ii)); (5) that the verdict was one that no reasonable jury, properly directed, could have returned (Ground 7); and (6) that the admission of the incriminating statements made by the appellant when he was interviewed by the police was contrary to his right to a fair trial because he could not consult a solicitor beforehand (Grounds 8 and 9).

V. CONCLUSIONS

Perverse verdict (Ground 7)

[55] I shall deal with the perverse verdict argument first. It presents us with an overview of the evidence that will also be relevant to the other grounds of appeal. Counsel for the appellant submitted that in light of the weaknesses in the Crown case, seen against the evidence incriminating Young and the appellant's consistent denial that he committed the fatal stabbing, no reasonable jury could have convicted the appellant. The central theme in this submission was that the court, with the combined forensic experience of its members, was better placed to assess the shortcomings in the Crown witnesses' evidence than the jury had been (AJE v HM Adv 2002 JC 215).

[56] Gorman's identification of the appellant was questionable. He consistently identified the assailant as the smaller person. On no view could that be the appellant. Gorman originally identified Young in the dock. His identification of the appellant as the person who chased the deceased, when he was close to them, was tentative. This cast doubt on his identification of the appellant in the garden when he was further away. Gorman said that the assailant had his top off, whereas the evidence suggested that the appellant had kept his top on. Gorman could not identify the man who stabbed Cocozza, yet Cocozza identified him as the appellant. Rooney's evidence could not be relied upon. It was inconsistent with the account that she gave to the police. There were inconsistencies in her evidence as to where the appellant's blow to the deceased had landed. Cocozza's evidence was effectively worthless in light of the identification parade.

[57] The circumstantial evidence was largely equivocal. The appellant's threats had to be considered against the time that passed before the incident and the fact that he invited the deceased to the party. His confession was based on his belief that the knife wounds to the head had been the cause of death.

[58] On the other hand, the way in which the appellant's position developed during the police interviews was significant. He had been consistent throughout in saying that if the death was caused by head wounds, he was responsible; but if it was caused by stab wounds to the torso, he was not. His acceptance of responsibility on one hypothesis strengthened the credibility of his denial of responsibility on the other.  His lies to the police stemmed from a regrettable reluctance to implicate others. This reluctance added credibility to his evidence. There was other evidence incriminating Young. Orr spoke to Young's self-incriminating comment. Young had told Rooney to keep quiet. Young was the shortest of the accused. Like the appellant, he had the deceased's blood on him.

[59] The advocate depute submitted that the question was whether a reasonable jury would have been bound to have a reasonable doubt. The jury need not have had such doubt even if there was a substantial body of evidence supporting the defence. It was entitled to reject the evidence favourable to the defence precisely because it was inconsistent with the Crown case (King v HM Adv 1999 JC 226). The credibility and the reliability of witnesses were matters for the jury (Rubin v HM Adv 1984 SCCR 96). The strength of the eye-witness evidence was in how it fitted together. It was wrong to examine it piece by piece. The statements by the appellant before and after the incident provided powerful corroboration.

[60] In my view, the submission for the appellant is misconceived. The question that this ground of appeal raises is whether, on any view, a verdict of guilty was one that no jury could reasonably have returned. In our consideration of that question, it is unnecessary, and would be unhelpful, for us to compare and contrast in detail the evidence in AJE v HM Adv (supra) with the evidence in this case. It is sufficient to say that AJE v HM Adv was a most unusual case in which the evidence of one of the complainers, on which the entire prosecution depended, was so unsatisfactory that the court could conclude that the conviction was unreasonable. Moreover, there was no objective evidence that the crime to which that complainer spoke had been committed at all. The medical evidence pointed against that conclusion.

[61] In this case we have to decide whether, taking the Crown case at its highest, there was a sufficiency of evidence to entitle the jury to convict. It is common ground that the deceased was killed by a stab wound to the chest. There was evidence that shortly before the incident, the appellant had threatened to kill the deceased. There was evidence that at the time of the incident the appellant was armed with two knives. Rooney said that she saw the appellant strike the deceased on the chest area. Gorman said that he saw the appellant attack the deceased with stabbing movements to the chest. That, in my opinion, constituted a sufficiency of evidence entitling the jury to convict. There were of course criticisms to be made of it and contradictions and inconsistencies to be brought out. All of these were highlighted in the presentation of the defence case. But what weight was to be given to the defence points, and whether all or any of them introduced a reasonable doubt, were matters for the jury to decide (Affleck v HM Adv [2010] HJAC 61).

[62] In addition to this basic sufficiency of evidence, there were the appellant's

own de recenti statements, when he was interviewed by the police as a witness, that he had caused the deceased to die. His later statements in his formal police interview provided a qualification to those remarks, namely that at that time he thought that the deceased had died from knife blows to the head. Whether or not that explanation affected the matter was again a question for the jury to assess.

[63] I do not think the jury were bound to find that the appellant had been a "devious genius" in order to explain the position that he adopted in his police interview We need not assume that the appellant knew that he had fatally penetrated the deceased's chest with a knife. Only moderate force was required. The deceased was able to run for some minutes after. In considering the point, the jury were entitled to take into account the appellant's own uncertainty as to the violence that he had inflicted. He told the police that he had hit a flakey, had been psycho, had hit a loopy turn and had gone mental. He told them, regarding another man's injuries, that he had probably struck that man as well, as he had taken a psycho turn, and could not remember.

[64] Looking at the whole evidence, I consider that this was a straightforward case in which the jury had to assess the incriminating evidence that I have summarised in light of the appellant's competing evidence, his explanations and his incrimination of Young. They then had to decide on the whole evidence whether the case against the appellant was proved beyond reasonable doubt. In short, this appraisal of contradictory and inconsistent lines of evidence was exactly the function of the jury. Inconsistencies in the evidence of a material witness do not of themselves constitute a ground of appeal. In Affleck v HM Adv, supra, for example, this court, acknowledging the jury's function, refused an appeal in a case where the crucial eye witness "repeatedly equivocated ... claimed he could not remember things which he subsequently appeared to remember ... completely contradicted himself on many occasions," and was under the influence of drugs at the material time (at paras [17], [18]).

[65] I see no reason why we should disturb the verdict. It cannot be said that no reasonable jury could have convicted the appellant. On the contrary, there was a cogent and logical case against the appellant that the jury were entitled to accept. In that context, the question as to which particular knife inflicted the fatal wound was not, in my opinion, crucial.

The advocate depute's comments about Young (Grounds 1 & 2)

[66] Counsel for the appellant, who did not draft these particular grounds, disavowed any suggestion that the advocate depute was attempting deliberately to mislead the jury. He submitted that the jury may have thought that the Crown was disabled from calling Young. This may have had a prejudicial effect. It was significant that senior counsel acting at the trial felt it necessary to deal with the matter in his jury speech.

[67] The advocate depute submitted that the trial advocate depute's comments were legally correct. They were replied to robustly by defence counsel. The matter was of no real relevance. The jury were directed not to speculate. The court should proceed on the basis that the jury followed that direction. Any further direction would have drawn more attention to those comments.

[68] In my opinion, counsel for the appellant was wise to disclaim any suggestion that the advocate depute had been deliberately misleading. There was no basis for such an allegation. In my view, the advocate depute's comments were not misleading at all. It was correct to say that the Crown could not call an accused person. There was nothing in what the advocate depute said to imply that the Crown had been deprived of potentially valuable evidence. The only indication of the possible content of Young's evidence came from counsel for the defence in his speech. Any misleading impression would have been corrected by the advocate depute's urging the jury not to speculate, by defence counsel's lengthy and outspoken discussion of the topic and by the trial judge's directions to avoid speculation about witnesses who had not been called.

Dock identification of Cocozza (Grounds 4(i) & 6(i))

[69] Counsel for the appellant submitted that the tenor of Cocozza's evidence was that, having failed to identify the appellant at the identification parade, he could identify the appellant in the dock because he was not surrounded by a number of other persons. Cocozza had to look at only four persons who were sitting in it.

[70] The advocate depute submitted that whether directions were required depended on the circumstances of the case (McLean v HM Adv
[2011] HCJAC 99). In this case, positive identifications had been made by Gorman at an identification parade and by Rooney, who knew the appellant. Cocozza's evidence was relied on by the Crown simply to support Gorman's identification. It was inconceivable that the jury would have rejected Gorman's identification but accepted Cocozza's. There was also circumstantial corroboration.

[71] In Holland v HM Adv (2005 SC (PC) 3) the Judicial Committee of the Privy Council commented that a dock identification suffered from two key disadvantages. It lacked the safeguards of an identification parade, which ensure that there is evidence of a positive identification rather than of a mere resemblance. The presence of the accused in the dock between security guards was suggestive of his guilt and could accordingly influence the witness (ibid, at paras [47]-[48]). Nonetheless, the Judicial Committee held that evidence of a dock identification was admissible. The requirement for corroboration, the opportunity of the defence to cross-examine the witness and the opportunity to address the jury appropriately could overcome the risks of unfairness. Whether these safeguards did so would depend on the quality of corroboration, the cross-examination and the speech to the jury (para [57]). The judge's directions might also remove the potential unfairness, but only if they went beyond the general warning of the dangers of eye-witness evidence and dealt explicitly with the peculiar dangers of dock identification (para [58]).

[72] In this case the trial judge's omission to give specific directions to the jury on the dangers of dock identification was understandable since the decision in Holland v HM Adv (supra) represented new law at the time of the trial. Nonetheless, best practice is always to give particular directions where the Crown relies on a dock identification of an accused person who was previously unknown to the witness which is not supported by a prior identification by a parade or by a VIPER exercise. This avoids any possible argument that unfairness has resulted.

[73] Looking at the circumstances as a whole, I do not think that there was any unfairness in the case. It was abundantly clear that Cocozza could not identify the appellant when he was surrounded by stand-ins of similar appearance. It was a classic example of selection because of resemblance rather than of identification stricto sensu. The inadequacy of Cocozza's identification is obvious to us. It must also have been obvious to the jury. They had the witness's own words to explain the weakness of his evidence without assistance from the judge.

[74] The danger that the accused was identified because of his presence in the dock was not as potent in this case as in others. The only realistic candidates for the fatal stabbing were all in the dock. The suggestion that the appellant was identified only because he was in the dock was clearly before the jury. Cocozza was specifically cross-examined on that issue. He accepted that if the appellant definitely was the person who had attacked him, it was to be expected that he could have identified the appellant at the parade.

[75] The jury were reminded of the weak nature of Cocozza's identification evidence during both speeches. The advocate depute said it was very unusual. He invited the jury to have regard to it only so far as it fitted with Gorman's evidence. That was a legitimate exercise, given Cocozza's description, in common with Gorman's, of the assailant as having a "pig nose."

[76] Accordingly, in my view the absence of specific directions on dock identification did not cause a miscarriage of justice. There was no realistic prospect that such a direction would have made any difference to the jury's understanding of the limitations on Cocozza's evidence.

Crown non-disclosure (Ground 4 (ii))

[77] Counsel for the appellant submitted that the existence of Young's trainers ought to have been disclosed. The presence of the deceased's blood inevitably strengthened the case against Young and correspondingly weakened the case against the appellant.

[78] The advocate depute submitted there had been no failure to disclose. The defence must have known that the trainers had been seized. The defence never requested production of the trainers for analysis (cf letter from Robertson & Ross to Crown Office, 18 May 2010). In any event, there was evidence of the deceased's blood on Young's clothing. The presence of blood on the trainers had no particular significance.

[79] In my opinion, it is impossible to suppose that an analysis of the trainers before the trial would have had any effect on the outcome. There was already evidence of Young's having come into contact with the deceased's blood. The post-trial analysis added nothing to what was already known. Furthermore, the defence strategy was to treat this aspect of the scientific evidence as neutral. That is sufficient to dispose of this ground of appeal.

Directions regarding eye witness evidence (Ground 6(ii))

[80] The appellant submitted that should the identifications of any two of Rooney, Gorman and Cocozza be rejected, there would be an insufficiency of evidence. The jury ought to have been directed accordingly, since each witness's identification had significant weaknesses.

[81] In my view, the trial judge's direction that corroboration could be found in indirect sources or in circumstantial facts was sufficient and correct. The jury were entitled, for instance, to proceed solely on the basis of Gorman's identification and to find corroboration in the circumstantial evidence.

No legal advice before interview (Grounds 8 & 9)

[82] Counsel for the appellant submitted that in light of Cadder v HM Adv (2011 SC (UKSC) 13) the leading of evidence of the police interviews by the advocate depute infringed the appellant's article 6 rights (Scotland Act 1998, s 57). The appellant would have been entitled to advice from a solicitor when he became a suspect and had his freedom of movement significantly curtailed (Ambrose v Harris 2011 SLT 1105). That point was reached when the appellant was being led to the police vehicle to be taken for questioning. It had clearly been passed when he was cautioned and the tape-recorded interview began. In reality, he was a detainee (Criminal Procedure (Scotland) Act 1995, s 14).

[83] In cross-examination of the appellant, the Crown relied on the tape recorded admissions and in particular on his references to having gone into a "red mist," having gone "psycho" and having "enjoyed" striking the deceased. When the inconsistencies in his account were put to the appellant, he variously accepted that he had lied or was "mixed up." This had been seriously damaging to his defence.

[84] Counsel for the appellant submitted that if Cadder had applied at that time, the Crown could not have led evidence of the police interviews. There was a realistic possibility that, without that evidence, the jury would have had a reasonable doubt.

[85] The advocate depute pointed out that the ground of appeal attacked the admission of "interviews." The admissibility of the appellant's statement on the way to the police vehicle, and of his initial confession immediately after the witness statement was taken, was not questioned. The Crown conceded that the appellant was a suspect at the point at which the taped recorded interviews began. However, the evidence of these interviews provided an opportunity to explain his confession. It was inconceivable that the defence would have objected to evidence of the interview. It was a cornerstone of defence counsel's speech to rely on the appellant's statements, including the incriminating comment made by Young, and corroborated by Orr, when the appellant was isolated.

[86] I cannot see how the exclusion of the appellant's statements would have improved his prospects of acquittal. Until the appellant was cautioned he was treated as a witness to a major incident. Like all of those who were at the house, he was taken to a police station and interviewed. A handwritten statement was taken setting out his position that he had not left the house and that he had no real knowledge of the incident outside. He admitted his involvement when he was told that someone had died. He had said that the incident had nothing to do with Young and Orr, and that he had killed someone. At that point he was cautioned and became a suspect, both in domestic law and for the purposes of the Convention (Ambrose v Harris, supra, at para [62]). By then the real damage had been done.

[87] The Crown rightly conceded that at the point at which he was cautioned, the appellant's freedom of movement was significantly restricted. If he got up to leave the police station, he would immediately have been formally detained.

[88] That being so, the question arises as to what part the interviews played in the trial. A breach of article 6 occurs only when evidence of the incriminating interview is led. If the law declared in Cadder had been applied at the trial, the choice for the Crown would have been to lead the evidence of the interviews on the understanding that the defence would not object or not to lead the evidence at all. The defence could not have led that evidence either as evidence of its terms or as evidence of prior consistent statements to support the appellant's credibility (Coyle v HM Adv 1994 JC 239). If defence counsel had led evidence from the appellant that he gave the same account to the police, the Crown could have cross-examined him on that account in order to expose his inconsistencies.

[89] If the Crown had not led evidence of the police interviews, the defence would have been left with weaker means to defend a formidable Crown case. The interviews allowed the defence to advance the "devious genius" argument to the jury. Counsel could argue that his account was not a recent concoction co-ordinated with Orr. That strategy failed; but it is inconceivable, in my view, that the absence of the interviews would have improved the prospects of an acquittal.

VI. APPLICATION TO ADD NEW GROUNDS OF APPEAL

The proposed new grounds

[90] On 30 January 2012, on the eve of an appeal hearing, additional proposed grounds of appeal were lodged. They were presented as raising an issue under article 6, or as raising an orthodox fresh evidence point. They centred on the evidence given by Dr Marjory Turner.

[91] It was said that new investigations by Professor Pounder indicated that the knife label 4 could have been the murder weapon. The approach of the Crown pathologists had been flawed. If they had adopted a sound approach, Dr Turner could not have given evidence that label 4 should be ruled out. Dr Turner, having been informed of Professor Pounder's observations, had recanted. If label 4 was a potential murder weapon, that tended to incriminate Young and thereby to exonerate the appellant.

[92] There was a reasonable explanation for the absence of evidence. It was to be found in (i) the Crown pathologists' lack of diligence; or (ii) the Crown's failure to make further enquiries of them; or (iii) a lack of diligence by those acting at the trial for the appellant. Notwithstanding the last point, counsel for the appellant said that he did not seek to add an Anderson ground to the grounds of appeal.

The procedural history

[93] The history of this appeal has been protracted. On 23 February 2006, a note of appeal was lodged. None of the proposed grounds concerned the possibility that label 4 was the murder weapon. On 27 March 2006, at first sift, leave to appeal was granted. On 12 March 2007, the agents intimated that they had been dismissed. On 20 April 2007, new agents intimated their interest. On 29 January 2008, counsel requested further time to consider lodging additional grounds of appeal.

[94] In a Report dated 8 May 2008, Professor Anthony Busuttil concluded that label 4 could have been the murder weapon. On 15 August 2008 the court granted warrant for examination of labels 2, 3 and 4 by Professor Busuttil. In a report dated 16 September 2008, Professor Busuttil described the features of the knives.

[95] On 9 October 2008, the court directed that any proposed additional grounds should be lodged by 17 October. On that date additional grounds were lodged (the 1A grounds). Again, none of them concerned label 4. On 24 October, the defence agreed that Professor Busuttil could be precognosed by the Crown.

[96] On 13 October 2009, further additional grounds were lodged (the 1B grounds). They related to the appellant's lack of legal advice before his police interview. No point was taken regarding label 4. On 26 November leave to argue certain of the 1A grounds was granted. On 19 May 2010, the court refused leave to argue the remaining 1A grounds. On 16 November 2010, the court formally granted leave to argue the 1B grounds.

[97] On 25 May 2011, at a procedural hearing, counsel for the appellant informed the court that there had been a recent change of agency and that an additional line of enquiry regarding scientific evidence was to be pursued. On 27 September 2011, the court granted the defence application to have labels 2, 3 and 4 inspected by Professor Pounder. The court directed that any further proposed grounds should be lodged within four weeks. On 28 October 2011, an extension of time to lodge further grounds was sought, and on 31 October refused.

[98] On 6 January 2012, a report from Professor Pounder was lodged. On 18 January 2012, at a procedural hearing, counsel for the appellant said that he proposed to rely on Professor Pounder's report at the full hearing. The court found that this was not warranted by any of the grounds for which leave had been granted. Counsel did not seek to amend the grounds. He said that he was not in a position to draft any further grounds. He declined an invitation to make any other application regarding the hearing.

The enquiries with Dr Turner

[99] On 30 January 2012 a third set of additional grounds (the 1C grounds) was lodged. Counsel for the appellant informed us that the appellant's agents had precognosed Dr Turner and that, as suggested in the grounds of appeal, she had changed her view. Counsel declined our invitation to produce the precognition.

[100] The advocate depute said that the Crown Office had made its own enquiries with Dr Turner. She had not changed her view. She did not agree with Professor Pounder's view.

The letter from Mann Solicitors

[101] Before the hearing the agents for the appellant attempted to consult with Dr Turner. The advocate depute fortuitously learned of this. She was concerned as to the value of this exercise in the absence of a proposed relevant ground of appeal and without Dr Turner's having read a transcript of the trial. The Crown expressed these concerns to Dr Turner. She decided not to consult with the appellant's agents. 

[102] On 30 January 2012, Mann Solicitors, the appellant's present agents, delivered a letter, dated that day, to the Lord Advocate's private office. The writer, whom I assume to be Mr G A Mann, made the following assertions:

"Despite the failure by the Crown to provide Ms Turner with a copy of Professor Pounder's Report we can confirm that Ms Turner has considered the Report in detail and on 25^th January 2012 she confirmed to our Mr Mann that she is in broad agreement with Professor Pounder's assessment of her original evidence.

Consequently, the effect of such a concession and her admission that she does not take issue with the findings of Professor Pounder simply highlights the material errors inherent in her evidence as spoken to at the original trial.

In addition, Ms Turner has expressed deep regret that her evidence may have led directly to a miscarriage of justice resulting in the conviction of the Appellant for the crime of Murder."

He then said that Dr Turner's secretary had told the agents that the advocate depute had "instructed" Dr Turner not to discuss the case with them. He continued:

"If accurate, this account of events represents nothing short of a blatant attempt by a senior Advocate Depute to influence the course of justice insofar as it relates to the present appeal."

The writer then made a threat and issued an invitation, as follows:

"Should we fail to receive your written assurance of access by 2pm today then we shall have no alternative but to bring the whole matter to the attention of The Lord Justice Clerk either before or during the appeal hearing.

Et Separatim, given that the Crown has had ample time to consider the terms of Professor Pounder's Report, we would welcome your view as to the effect, if any, such report may have on the instant appeal?

In particular, we invite you to concede that the whole thrust and impact of these latest findings serves to highlight the fact that an obvious miscarriage of justice has occurred. As such, we maintain that the Crown should properly concede the point and intimate to the High Court of Justiciary that the conviction for Murder is unsafe and that the appeal against conviction will not be resisted.

We invite you to regard this letter as an open letter written for the purpose of securing a successful appeal against conviction and of course in an effort to save the High Court of Justiciary a great deal of time and expense in hearing the appeal over 3 days."

[103] It is disappointing that the appellant's agents should have written such an offensive letter. The writer's remark about the advocate depute was disgraceful. He could have pursued the question of consulting with Dr Turner by a simple letter written with the courtesy that any responsible lawyer would show in such circumstances. More generally, I consider that this truculent letter would have had a bearing on the appeal only if the conviction turned on the question whether label 4 could have been the murder weapon. For the reasons that I have given, there would have been a sufficiency of evidence to warrant the conviction, even if label 4 could not have been excluded.

The appellant's motion

[104] Counsel for the appellant moved the court to continue the appeal for consideration of the application to amend the grounds, or to allow the addition of the 1C grounds there and then; and to appoint a further hearing on them. He said that the grounds were not in final form and that he would prefer to make further enquires with Dr Turner before finalising them. It was in the interests of justice that the appellant should have leave to argue the new set of grounds. The delay in tabling them had been caused by a second change of agency and the loss of the trial correspondence file. The delay in hearing the appeal was fortuitous. It had the result that Professor Pounder's opinion, which had emerged only towards the end of 2011, might now be relied upon before the appeal was finally determined. Counsel declined to say why similar grounds had not been lodged in 2008, in reliance on Professor Busuttil's opinion. He said that the reasons for that were confidential.

[105] The Crown expressed concern about the late stage at which it was sought to introduce this set of new grounds. The delay was extraordinary. When Professor Busuttil expressed his views on label 4, the correspondence file was still available. There was no explanation for the lack of any application to amend the grounds at that point. The explanation for the delay in obtaining Professor Pounder's report was inadequate.

Discussion

[106] The motion for the appellant proceeds, in my view, on two misconceptions. The first is to treat finality as an achievement when attained; but otherwise as an irrelevance. On counsel's approach, until there is a final determination of the appeal in the sense of section 124(2) of the 1995 Act, the need for finality is simply not a material consideration. On this view, where further arguable grounds come to light while an appeal is pending, the delay becomes a happy circumstance rather than a consideration adverse to the appellant.

[107] The second misconception is that the need to determine appeals expeditiously and to achieve finality is somehow a separate and subordinate consideration to the interests of justice. On counsel's approach it did not theoretically matter whether the point came to light one year or ten years after the appeal was lodged, so long as finality under section 124 had not been reached, because the paramount consideration was to do justice.

[108] In my opinion, the need for finality and the interests of justice are not opposed concepts. The former is an aspect of the latter. There is a legitimate public interest in the maintenance of a jury verdict unless there is a substantial reason to doubt its integrity. That is why the court in fresh evidence appeals has observed that the setting aside of a jury's verdict is no light matter (Cameron v HM Adv 1991 JC 251, Lord Justice General Emslie at p 262; Al Megrahi v HM Adv 2002 JC 99, Lord Justice General Cullen at para [219]). That too is an aspect of finality. Where there is a challenge to a jury's verdict, it is in the interests of justice that it should be brought to a final decision within a reasonable time. Expeditious disposal of appeals is in the interests of appellants, of victims, including the families of deceased persons, and of the public generally (Lilburn v HM Adv [2011] HCJAC 39, Lord Justice-General Hamilton at para [7]). Any application to amend grounds of appeal should be presented as soon as any proper basis for it comes to hand.

[109] The appellant has been given three opportunities over the space of seven years to state and argue his grounds of appeal. His fourth attempt seeks to raise a point for which, it seems, he had the relevant supporting material in 2008. No explanation has been given as to why an appropriate ground of appeal was not tendered at that time. The delay has been substantial whether it is measured from the date of the conviction, or from the date of Professor Busuttil's report, or from the date of the deadline set by the court for the lodging of additional grounds arising from Professor Pounder's opinion. In my view, the application further to amend the grounds comes too late and should be refused.

VII. The application while the case was at avizandum

[110] On 25 April 2012, whilst this appeal was at avizandum, the appellant's agents applied for permission for Dr Turner to listen to the tapes of her evidence. The court refused the motion in hoc statu, on the view that the matter could be reconsidered in light of the outcome of the appeal.

[111] On the view that I have taken about the latest set of proposed grounds of appeal, this matter is now academic.

VIII. DISPOSAL

[112] I propose to your Lordships that we should refuse the appellant's application further to amend the grounds of appeal; refuse the appeal against conviction and continue the case for a hearing on the appeal against sentence.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Carloway Lord Kingarth	[2012] HCJAC 123 Appeal No: XC659/05 OPINION OF LORD CARLOWAY in the APPEAL AGAINST CONVICTION AND SENTENCE by SEAN TOAL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Mackenzie; Mann Solicitors, Glasgow

Respondent: Bain QC, AD; Crown Agent

20 September 2012

[113] I agree with Your Lordship in the chair that, for the reasons given by Your Lordship in respect of each of the grounds of appeal argued, the appeal against conviction must be refused. Whatever criticisms might be made of the quality of certain aspects of the eye witness testimony and whatever contradictions in that testimony might be highlighted, there were no less than four separate sources of eye witness testimony pointing firmly to the appellant as the murderer. There was, first, evidence from Lindsay Rooney that, shortly before the fatal attack, the appellant had threatened to kill the deceased. On the deceased's arrival, the appellant rushed past Miss Rooney and struck the deceased on the chest. The appellant returned to the house, after which, Miss Rooney was covered in blood. One inference from these facts, when placed in the context of a death caused by stabbing to the chest, is that the appellant was the culprit. Secondly, Joseph Gorman identified the appellant both in court and at an identification parade as the person with a "pig nose" who made stabbing motions towards the deceased's chest and from whom he had obtained one of two knives which the assailant had been brandishing. Mr Gorman had punched the assailant on the mouth. Thirdly, Jonathan Cocozza said that he had seen a man with a "piggy nose" stabbing the deceased on the chest and that this was the same person as had stabbed him also. He identified the appellant as that person. Although he had not done so at an identification parade, he explained, not unreasonably, that he was able to do so in court because he could then concentrate upon comparing the appellant with the other three accused (who were the only other candidates for the murder) in the dock. Fourthly, Rachael Condie spoke to the appellant threatening to kill or otherwise assault the deceased in advance of the attack. She said that the appellant had returned to the house carrying a knife. She testified to the appellant having a cut mouth, a feature which linked the appellant, through Mr Gorman's evidence, to the stabbing.

[114] Upon that eye witness testimony alone, there was not only a legal sufficiency of evidence but also a convincing and compelling case. That testimony was then bolstered by the appellant's own admissions. These began with a statement to Miss Condie that he had stabbed the deceased, albeit on the head. More significantly, however, he had said to the police, both at the scene and during his initial interview as a potential witness, that he was the person who had caused the death by stabbing and that the others had not been responsible. It is, of course, possible to place emphasis upon the appellant's later interviews, in which his varying accounts ultimately sought to distance himself from the chest wound and to blame his co-accused. Whether the glosses on the earlier statements provided by the appellant in these later interviews and in his own testimony were to carry any weight was a matter for the jury to assess, having heard all the evidence. It is clear that the jury rejected the appellant's account that he had not stabbed the deceased on the chest. They had good reason to do so, standing the eye witness testimony and the plain meaning of the appellant's earlier confessions to the police.

[115] Whatever defects might be perceived in the trial proceedings following the decisions in Holland v HM Advocate 2005 SC (PC) 3 and Cadder v HM Advocate 2011 SC (UKSC) 13, it cannot be affirmed that a miscarriage of justice has, or even might have, occurred. Any such defects are, for the reasons given by Your Lordship, insignificant in the context of this trial. The evidence against the appellant was substantial and it is difficult to conceive of how a properly directed jury could have reached any verdict other than the one which this jury did reach.

[116] In agreeing also with Your Lordship's view that leave to amend the Note of Appeal to add new grounds should also be refused, I wish specifically to endorse Your Lordship's Opinion on the context of the need for finality within an overall concept of justice. Any properly functioning system of appeals from jury verdicts must have, as a central feature, means by which such appeals can be concluded within a reasonable time. This is in the interests of all, whether appellants, respondents, victims (including relatives of deceased persons) or the public in general. It follows from this that the courts should promote compliance with the timetable set by Parliament for the lodging of Notes of Appeal, which are required to contain a full statement of all the grounds to be argued (Criminal Procedure (Scotland) Act 1995 s 110). The lodging of the Note is intended to be the normal end point for the formulation of grounds of appeal and not, as might appear from this process, the beginning. Where leave to appeal is given, the courts should then also attempt to enforce the timetable for the lodging of the written case and argument (Act of Adjournal (Criminal Procedure Rules) 1996, rule 15.15A) and thereafter, usually at a Procedural Hearing, to appoint the appeal to a final hearing to take place as soon as reasonably practicable.

[117] Consistent with the idea that the need for finality is an aspect of justice itself, it should only be in exceptional cases, where cause is shown for the tendering of late grounds, that an appellant should be afforded an opportunity to present such grounds. The later grounds are tendered, the less accommodating the court should be in allowing the Note of Appeal to be amended in advance of any consideration, at first sift or otherwise, of whether leave should be given to argue them. Indeed, where the grounds tendered late do not appear to have clear substantial merit, leave to amend the Note ought not to be permitted. That is the position in this appeal, where the issue of whether a particular knife was the murder weapon is, at best, of peripheral significance.

[118] The indulgence afforded by the court to this appellant can only be described as extreme. The appellant was allowed to lodge his Note of Appeal on 23 February 2006, some six months after being sentenced. There were three grounds in that Note, of which only two (grounds 1 and 2) were argued at the appeal hearing. Although the court fixed a number of Procedural Hearings, none actually took place until 29 January 2008, almost two years after the lodging of the Note. The many discharges and continuations of diets, which had occurred before then and continued to occur thereafter, related to matters largely unconnected with the then existing grounds and hence with the appeal itself. On 17 October 2008, the appellant presented "additional" grounds of appeal (numbers 4 to 7). The court did not then determine whether the Note should be allowed to be amended. Rather, it simply remitted the grounds to the trial judge and requested a supplementary report from her. Thus that judge was being asked, for the first time, to comment upon grounds, relating to alleged unfairness in the trial proceedings and the reasonableness of the verdict, over three years after that verdict had been delivered.

[119] What happened after receipt of the judge's report is best described as continued procedural confusion. In summary, eventually, at a Procedural Hearing on 26 November 2009 the court itself granted "leave to argue" parts of the new grounds 4, 6 and 7 (cf Practice Note No 2 of 2010). It took until 19 May 2010 for it to "refuse to entertain" other aspects of grounds 4 and 5. Although it was not minuted at the time, the court had also, at that diet, allowed grounds 8 and 9, which had only been raised on 5 October 2009, to be argued. Thus, none of grounds 4 to 9 were subjected to the normal sifting process. Ultimately, over thirty Procedural Hearings were fixed over a period of some six years before the final hearing took place. The causes of this were generally: (a) the pursuit by the appellant of material for potential grounds of appeal quite different from those which he had presented in the original Note and for which leave to appeal had been given; and (b) crucially, the court repeatedly allowing the appellant the latitude to do so despite the statutory timetable, which is measured in weeks and not years, for the lodging of a Note intended to encapsulate all grounds. This degree of latitude cannot, in the interests of justice, be allowed to recur.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Carloway Lord Kingarth	[2012] HCJAC 123 Appeal No: XC659/05 OPINION OF LORD KINGARTH in the APPEAL AGAINST CONVICTION AND SENTENCE by SEAN TOAL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Mackenzie; Mann Solicitors, Glasgow

Respondent: Bain QC, AD; Crown Agent

20 September 2012

[120] For the reasons given by your Lordship in the chair I agree that the appellant's motion further to amend the grounds of appeal, and the appeal against conviction, should be refused.