Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lord Carloway Lord Hardie	[2011] HCJAC 16 Appeal No: XC591/10 OPINION OF THE COURT delivered by LORD CARLOWAY in the appeal by JOHN MARTIN McCARRON, Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act : McConnachie QC, MC Mackenzie; John Pryde & Co SSC (for JP Mowberry Ltd, Glasgow)

Alt: Shand QC AD; the Crown Agent

2 February 2012

1. The Trial

[1] On 15 July 2010, after a trial at the High Court in Glasgow, the appellant was convicted of the murder of William Auld on 3 January 2010 at the Cavendish public house in Nitshill Road, Glasgow, by repeatedly stabbing him with a knife. On 12 August 2010 he was sentenced to life imprisonment, with a punishment part of 18 years.

[2] The facts established in the evidence, as reported by the trial judge, were that the appellant, who was aged 42, was the manager of the pub and had worked there for over twenty years. The deceased, aged 45, was a customer. On 3 January 2010, the pub had been busy, partly because of the showing of a Rangers v Celtic match and a subsequent karaoke session. The deceased had watched the game at home and had gone to the pub later with his son Gary Cairney. Mr Cairney left the pub at about 10.30 and then met his girlfriend, Caroline Sheldon, and her friend Michelle Annan going into the pub. Having spoken to Mr Cairney, the two women went into the pub and joined the deceased.

[3] At about 11 pm, Miss Sheldon went to the bar for a carry out of vodka. The appellant refused the request as coming too late. The deceased intervened and a heated exchange and scuffle followed between the appellant and the deceased. According to Miss Sheldon, the appellant then went behind the bar and returned with a knife. He again became involved in a scuffle with the deceased, who ended up on the floor of the seating area. Miss Annan described the appellant as on top of the deceased. Scott McGregor was the boyfriend of Lisa Quinn. She is the sister of the appellant's partner, Yvonne Quinn. Mr McGregor spoke to the appellant bending towards a person on the ground. Several of the customers said that they had thought that the appellant had been trying to break up a scuffle. These included Archie McLeish, who had earlier been assisting bar staff in clearing up the glasses.

[4] The deceased got up, leaned against a pillar and was escorted from the bar. He had been stabbed and he collapsed on the entrance steps. This was captured by the closed circuit television system from a camera covering the main pub entrance. He died very soon afterwards, before an ambulance had time to arrive. His death was caused by four penetrating stab wounds to the area of the left nipple, two of which had penetrated the heart. He had other knife wounds to his face, arms and hands.

[5] In his evidence, Mr McGregor spoke to having meantime seen the appellant with a knife in his hand and blood on his arm. The appellant picked up a chair and threw it at a picture hanging in the bar. He said: "Someone is going away for a long time for this" or, possibly, in terms of Mr McGregor's police statement: "I'm going away for a long time for this".

[6] A large number of knives were recovered by the police from behind the bar in an upstairs lounge area, even although the pub did not normally serve food. One knife was found in a cistern in the gentlemen's toilet beside the main bar. Another was located placed underneath the plastic liner in a bin behind the bar. Mr McLeish said that he had been given this knife by the appellant sometime before the incident. He had been asked to place it behind the bar but had placed it in the bin. This knife could have caused the injuries. It had traces of blood on it and showed signs of having been cleaned.

[7] The appellant's blood was found in an area behind the bar and on a sink in a utility room, also located behind the bar. The appellant had a cut to a finger of his left hand and an abrasion to his neck. His T-shirt was recovered from a small office behind the bar. It had a tear at the neck. The front, back and right sleeve of the shirt had contact blood staining and spots of blood on the mid and lower front. Part of the contact area contained the mixed DNA of four persons, the major component being that of the deceased. The appellant's jeans were stained with spots and spatters of the deceased's blood. The forensic scientist who gave evidence was of the view that the appellant would have been within three feet of the deceased at the time of the stabbing.

[8] The appellant gave evidence, which was clearly rejected by the jury in its essentials. He said that he had told Miss Sheldon to leave the pub in the late afternoon or early evening because she had had too much to drink and had been argumentative. He had taken a knife from a customer about an hour before the incident with the deceased and had given it to Mr McLeish to place behind the bar. He had later stopped the staff supplying vodka to Miss Sheldon, who had returned to the pub. She had become abusive and he had gone from behind the bar to speak to her. The deceased had intervened and punches had been exchanged at a point near the far end of the bar. He had seized hold of the deceased with a view to his ejection, but the deceased had fallen in the middle of the pub. The appellant had stumbled over him. The deceased had been punched and kicked by a number of people whilst being ejected. The appellant denied ever having stabbed the deceased or being in possession of a knife at the material time.

2. The Appeal

[9] The appellant's original Note of Appeal, which is dated 8 November 2010, contained one ground; that of defective representation by his trial agents and counsel. The appellant had been represented by a very experienced and able senior counsel. The trial judge comments that counsel had conducted the appellant's defence "vigorously and robustly" and "made an excellent speech to the jury, analysing the Crown case... and making a number of strong criticisms of it". Senior counsel had the assistance of junior counsel at the trial and both were instructed by a well known and experienced firm of agents.

[10] The appellant contended, amongst other things, that his representatives: "failed to carry out his instructions in relation to the tracing and precognoscing of a witness", namely "Jennifer Donlin or Dolan". It was said that she:

"was named by a number of other witnesses as being present at the locus of the offence. The appellant believed that she was in a position to give evidence confirming that the appellant was not in possession of a knife at the relevant time. The appellant was advised by his Junior Counsel that the witness' precognition was not helpful. The appellant now believes that no precognition was ever taken from this witness, no police statement existed for this witness and that the information provided to him by Counsel was inaccurate. The possession of a knife by the appellant was the crucial issue at the trial. In those circumstances the failure of the appellant's legal advisors to carry out his instructions on this matter resulted in a situation whereby his defence was not properly put before the jury and thereby deprived the appellant of his right to a fair trial".

It should be observed that no contemporaneous written material was put before the court to confirm what the appellant's instructions before and at the trial had actually been.

[11] In due course, reports from the appellant's legal representatives at trial were obtained. In relation to tracing and precognoscing the witness, senior counsel responded in an impressively detailed Note dated 3 December 2010. This states that he had consulted with the appellant on four occasions prior to the trial and that, in relation to the instructions which he was said to have failed to carry out, the appellant gave "no such instructions of which I am aware". He continues:

"In the course of considering police statements disclosed by the Crown, the name of a person Jennifer Donnelly came to light but only in so far as she may have been in the company of the witness Scott McGregor after this witness had left the bar and was walking to a house with his girlfriend, Lisa Quinn".

[12] Senior counsel explains that the name Jennifer Donnelly arose along with that of Elaine McGuiness, who was traced and precognosced. Other persons in this group, who were said to have accompanied Mr McGregor from the pub, included Lisa and Yvonne Quinn. Agents had attempted to trace Miss Donnelly but they were not provided with an address by the appellant, through his partner. Another person in the group was Caroline Donnelly, who was precognosced. She was, on the instructions of the appellant, not called to testify, although cited as a witness. Her precognition referred to a "Jennifer Donlan" being in the group walking away from the pub. In addition, senior counsel explains that the CCTV recording had actually shown the appellant putting a knife down the waistband of his trousers at an earlier point in the evening and that thus the cross examination of Mr McGregor had been confined to the timing of when he had seen the appellant with a knife rather than whether he had seen the appellant with a knife at all. The appellant too had confirmed his earlier possession of a knife. Three witnesses, namely the two Quinns and Pamela Wylie, who had been sitting together near the front door of the pub, had testified to seeing the disturbance at the far end of the bar. Neither Quinn spoke to seeing the appellant at all and none gave evidence that the appellant was positively not in possession of a knife at the material time. Finally, in terms of senior counsel's Note, it is said that the appellant had been fully aware, prior to the start of his trial that the witness Jennifer Donnelly or Donlan had not been traced and that his instructions were to "proceed without further investigation of the witness".

[13] In her Note dated 5 December 2010, junior counsel confirms much of senior counsel's narrative. She proceeds on the basis that the missing witness is called Jennifer Donnelly. Having seen this witness's name in her papers, junior counsel had instructed that she be precognosced because she might have been able to speak to any conversation with Mr McGregor after they had all left the pub following upon the incident. The witness was not traced. The appellant had been advised of this and he had agreed that the trial should proceed. Junior counsel explains that she had advised the appellant about the contents of the precognition of Caroline Donnelly. In a letter dated 30 November 2010, the agents instructed for the trial state that the appellant never provided an address for "Jennifer Donnelly" and hence she was not traced or precognosced. The appellant had not stated to agents that she would be able to provide helpful evidence beyond that relating to a possible conversation with Mr McGregor. Agents also confirm that the decision not to call Caroline Donnelly was taken in consultation with the appellant. Agents state that they visited the appellant in prison on fifteen occasions prior to trial. Moreover, during the trial he was seen in custody each day and on some days he was visited more than once.

[14] On 21 December 2010, leave to appeal on this (and other) grounds was refused by the first sift judge, partly because there was no statement or precognition from the witness, Miss Donlin, submitted with the papers. However, leave was given at second sift on 15 February 2011. This followed the submission of a Note dated 22 January 2011 from the senior counsel instructed in the appeal which stated that the appellant had not known the surname of the witness and that, contrary to the Notes by trial counsel, he had not been told that she had not been traced. This time a precognition of Miss Donlin, although no affidavit, was included with the Note from appeal counsel.

[15] The precognition, which is dated 19 January 2011, states that Miss Donlin was in the pub, for only the second time, but did not know the people who were there. She was, however, sitting close to the door in the company of the Quinns, Mr McGregor, Charlene Rea and Caroline Donnelly; all of whom she was able to name. She saw the appellant trying to eject the deceased, who fell to the floor with the appellant on top of him. There were lots of people involved but she did not see a knife until after the deceased had left the pub. She then saw a person, whom she describes only by his first name, holding a knife which he passed to an unnamed third party. This was in the area where the deceased had fallen.

[16] On 18 March 2011, just over a month after leave had been granted on the defective representation ground, the appellant lodged two documents. The first is headed "Proposed Amended Ground of Appeal 1(a)". This departs from the defective representation ground of appeal and substitutes therefor a new evidence ground under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995 based upon the precognition of Miss Donlin. The second document is headed "Proposed Additional Ground of Appeal" and refers to further new evidence from Brian Cochrane. An affidavit from Mr Cochrane, dated 15 March 2011, states that he was a regular at the pub and witnessed the appellant putting the deceased out of the pub. The appellant and the deceased had stumbled and the appellant had then got up and held his hands up to Mr Cochrane in an expressive way to accompany the words "there's a nice night ruined". The appellant had no knife in his possession. Mr Cochrane had then said to the appellant "I'm off" and the appellant had replied, using the witness nickname: "'Night, no problem Cokie".

[17] At a procedural hearing on 7 April 2011, the court heard the appellant on his applications relative to these documents. The Crown stance was said to be "neutral", meaning, presumably, that there was no opposition to the substitution, for the defective representation ground in the Note of Appeal, for which leave had been granted, of one based on new evidence. The court allowed the amendments sought and did not require the new grounds to go through any sifting process. The appellant mentioned at this hearing that he would apply to have the evidence of Miss Donlin given anonymously. This issue was revisited at a procedural hearing of 13 May 2011, when the Crown stated that they would be undertaking "further enquiries" in relation to the witness. By the time of the next such hearing on 20 July 2011, the appellant had lodged a formal application for special measures under s 271P of the Criminal Procedure (Scotland) Act 1995 and addressed the court in respect of a witness anonymity order under section 271N. The Crown had meantime ascertained that Miss Donlin was on holiday and sought further time to consider the position.

[18] The appellant thereafter lodged further "Proposed Additional Grounds of Appeal", this time relating to the potential testimony of Ronald Dempster and Michael Strickland, both of whom deponed to having been present in the pub at the material time. Mr Dempster's affidavit states that he heard the commotion in the bar and turned round to see a person, who was not the appellant, with a "shiny thing". Mr Strickland had observed a scuffle which ended up with the appellant and the deceased on the floor. The appellant had got up and put his hands up towards him and there had been no sign of any weapon. On 16 August 2011 the court allowed the "Proposed Additional Grounds of Appeal" to be argued. On 26 October 2011 the court determined that a hearing would be assigned to the appeal, confined to the issue of whether, in terms of section 106(3A) of the 1995 Act, there was a "reasonable explanation" for the new evidence not having been heard at the trial

3. Anonymity Order

[19] At the commencement of the hearing of the appeal, the appellant moved the court to make an order which would ensure that the identity of Miss Donlin was not disclosed in connection with the proceedings. In that regard, it was recognised that such an order could not have been made under section 271N prior to the trial because the statutory provision was not then in force. However, it was maintained that the court could make an order at common law, as had on occasion been done in the case of evidence from an undercover police officer. In support of the application, an affidavit from Miss Donlin was produced. This states:

"I am a witness who has given a precognition... I am happy with the contents of my precognition but I am not willing to sign an affidavit or give evidence, at present, as I am afraid of repercussions from certain people who live near me who will not like what I have to say.

I have young children and I am so frightened of these people and what they could do to me and my family that I do not want to say any more about them or my fears in case they find out and I am thought of as a grass".

The Crown accepted that the court could make such an order, where it was necessary to protect a witness from serious harm. It appeared that, prior to the appeal hearing and despite what had been said at the procedural hearings, the Crown had done little investigation into the genuineness of any fears which the witness may have had. There had been unsuccessful attempts to have the witness attend for precognition. Since the witness was present in the court building, the court afforded the Crown time to seek such a precognition. At the end of that exercise, the Crown submitted that there appeared to be no specific reason or basis for the witness to be especially concerned for her safety.

[20] The court recognises the need to ensure that witnesses should be able to give evidence without fear of illegal repercussions from having done so. However, the court also recognises the importance of preserving the public nature of court proceedings, including the giving of testimony in criminal trials, in order to ensure the fairness of trials generally and to promote public confidence in the justice system through the conduct of trials and other court proceedings in foro publico. In the present case the witness in question expressed only a general concern about giving evidence with no particular or specific threat, or a basis for such, being identified. There was also no other material presented to the court that would suggest that she would be at risk in testifying in the appeal process. The application was therefore refused.

4. The Evidence

[21] The appellant gave evidence at the appeal hearing. He accepted that, prior to his trial, he had consulted with his counsel and agents in prison. He had been told of the content of witness statements, although he had not read any. He stated that there had been no statements taken from Messrs. Cochrane, Dempster or Strickland or "another person", who had been a friend of his niece. He had been aware that his partner, Yvonne Quinn, had been present in the pub as part of a group of persons, which included her sister Lisa, his niece Miss Rea and Mr McGregor. He had also become aware at some point that the friend of his niece had been present.

[22] His position on whether he became aware of the presence of this person in the pub prior to the trial was unclear, as was the extent to which he knew her name. His evidence on these matters appeared to fluctuate, especially between examination in chief and cross examination. The appellant appeared to be saying, at some points in his testimony at least, that, although he had not been aware of her presence at the time of the incident, he had, prior to the trial, been made aware of this and had known, or had ascertained from junior counsel, that her first name was Jennifer. Although he said at one point that he had not asked his solicitors to trace her prior to the trial, at another he maintained that he had instructed them to take a statement from her because she had been present. He did not accept that he was to provide contact details for her. He had come to be under a misapprehension about what she would say at trial because he had thought, prior to the trial, that her name was Jennifer Donnelly. Junior counsel had taken this to be a reference to Caroline Donnelly, another witness, from whom a statement of no value had been taken. After the trial, the appellant had spoken to his sister and had ascertained that no statement had been taken from "Jennifer". He had learned her surname at some point and had realised that it was not the same as the name, presumably Donnelly, that he had been given. The appellant said that he had had no discussion with his legal representatives about any conversation which Mr McGregor might have had with persons in his partner's group after the incident.

[23] Shortly after the trial, the appellant was told by either his trial agents or the new ones that he had instructed for the appeal that, if "fresh" evidence was to be presented, it had to come from persons who had not been witnesses at the trial. After the trial, he actively sought new witnesses. He asked his friend Philip Stevenson to review the CCTV recordings of persons leaving the pub. He maintained that he had not been given the opportunity to view these recordings prior to the trial, although he had seen some "stills". It was on Mr Stevenson viewing the recordings that Mr Strickland had been identified as a possible witness.

[24] In relation to Mr Cochrane, the appellant's position was that he had not known that he had been in the pub that night, although he accepted that he had known Mr Cochrane as a customer. He had not spoken to him that evening. He had only discovered that Mr Dempster had been in the pub after his friend Joseph Short had spoken to him, or to a friend of his. He had not been aware of the presence of Mr Strickland in the pub. He did not dispute, however, that he may have spoken to Mr Strickland and Mr Cochrane in the pub on the evening of the incident.

[25] According to the appellant, he knew nothing of court proceedings and had not discussed with his legal representatives whether further witnesses could be found. The pub had been busy and this had affected his ability to recall who had been present. He thought that the police would have located everyone who had been in the pub and he had not appreciated that some people might have been missed. Although he had been aware of the CCTV recordings, he had not advanced any investigative ideas of his own.

[26] Mr Stevenson gave evidence confirming that he had come up with the names of Messrs Dempster, Cochrane and Strickland following inquiries which he had made. These appeared to have been in conjunction with Philip Rogers, the licensee of the pub. Mr Stevenson had been at the trial. After it, he had viewed the CCTV recordings and Mr Strickland had been identified, although he did not know his name at the time. Mr Stevenson confirmed that Mr Dempster's name had come up following a conversation with Mr Short. He had encountered Mr Cochrane in the local bookmakers, although he was not sure of this as he had had many conversations with persons who might have been witnesses.

[27] Mr Cochrane thought that he had contacted the appellant's agents after a conversation with Mr Rogers in the bookmakers after the trial. Mr Cochrane's testimony was unclear about whether he had been aware that the appellant was to stand trial for murder. The pub had been closed after the incident, although he had continued to frequent the local bookmakers, which was next door. He had not come forward as a witness and attributed this to fear of repercussions. He had altered his approach following the conversation with Mr Rogers. He had spoken to the appellant in the terms outlined in his affidavit. The appellant, whom he had known for 14 years, had acknowledged him in the pub by reference to his nickname.

[28] Mr Dempster had known the appellant since childhood. He maintained that, after the incident, which he had witnessed, he had been contacted by the police during the course of the following week. He had agreed to a request to "keep himself available for questioning" but this had not been followed up. He had known that the appellant was to stand trial, but had not come forward for fear of repercussions. He had been contacted by Mr Stevenson after himself speaking to Mr Short in a nightclub. He had not stated to the police, when telephoned, that he had left the pub at about 10 pm. If he had said that then it would have been a lie. In that respect, the only witness called by the Crown, Detective Sergeant Michael McCarron, said that he had contacted Mr Dempster and had noted on a "Major Incident Action Form", which was produced, that Mr Dempster "claims he left at 22.00 hours". DS McCarron expected that this would have been followed up by an interview but he had gone on holiday.

[29] Mr Strickland also knew the appellant. Although he said initially that this had only been for 3 or 4 years, he acknowledged in cross-examination that it was probably 10 years and that he had made a mistake. He too said that he had witnessed the incident. He had been aware of the appellant going to trial but had not come forward as he had thought that the appellant had "no case to answer". He had later been contacted by Mr Stevenson following the CCTV viewing. He had spoken to the appellant, albeit briefly, after the incident.

[30] The Crown tendered certain witness statements taken by the police, which were said to have been disclosed to the appellant prior to the trial. The first of these, from Lisa Quinn, refers to her own boyfriend as Mr McGregor and to her sister Yvonne's boyfriend as the appellant. Lisa Quinn refers to the pub as being her local, in which she would know the faces, if not the names, of most of the customers and staff. She describes being in the pub with her sister and friends, Caroline Donnelly and Pamela Wylie. They were joined by Mr McGregor and then "Jennifer Donlan" and Charlene Weir. According to the statement, although she was aware of a fracas, she was unable to say who or what was involved before being told by one of the bar staff that it would be better for her group to leave. The group of seven all left together. The second statement, from Yvonne Quinn, is in similar terms and refers to the group as composed of the same persons, including "Jennifer". She too was unable to identify anyone involved in the incident. She refers to Jennifer being picked up by her (Jennifer's) husband. The third statement, from Charlene Rea, the appellant's niece, refers to "Jennifer Dolan" as being her best friend. This statement refers to the same group of people sitting in the pub. Again, she saw nothing of the scuffle or its participants. The statement makes mention of Jennifer's "man" by name, Gary Tees. The fourth statement is from Caroline Donnelly, who refers to herself as best friends with the Quinns, "Jennifer Donlin", Charlene Reid and Pamela Wylie. Again, she refers to them all being in the same company, with Mr McGregor. She said that she saw the scuffle but was unable to identify anyone involved.

5. Submissions

[31] The appellant first addressed the issue surrounding the "evidence" of Miss Donlin, who had not been called to give evidence at the appeal hearing, despite being under citation and present in the court building. It was asserted that she was not persuaded to give evidence following upon the court's ruling on the anonymity order. It was acknowledged that there was no affidavit from Miss Donlin in relation to the merits of the appeal. However, the appellant maintained his position in relation to her evidence, arguing that there was ample support, from the responses from trial counsel and agents, for the evidence from the appellant to the effect that there had been confusion over her name, which had admittedly been referred to in the police statements. The appellant's agents had been looking for someone who did not exist.

[32] The other witnesses had not given statements to the police at the time of the police investigation and it was stretching matters to suggest that the appellant should have been able to identify all the persons in the pub. He had been reliant on his agents and had no reason to suppose that they had not spoken to all relevant persons. Although the appellant might have known of the existence of the male witnesses as customers, he had no reason to know that they were in a position to give evidence in his favour.

[33] The test in section 106(3A) was whether there was a "reasonable explanation" for why the evidence of the various witnesses had not been heard at the trial. It was accepted that it was for the appellant to demonstrate that the explanation was genuine (Campbell v HM Advocate 1998 JC 130, LJ-C (Cullen) at 146). If the explanation tendered was objectively plausible, sufficient and not unreasonable (Lord McCluskey at 168-9), that was sufficient to proceed to the next stage of determining the significance of that evidence. The reasonable explanation test had been met.

[34] The Advocate Depute contended that the test had not been met. The appellant's focus had been solely on what he did or did not know, whereas the correct approach was to look at the matter from the point of view of his trial legal representatives (Hall v HM Advocate (No 2) 1999 SCCR 130, LJ-C (Cullen) at 137). In relation to Miss Donlin, it had been made clear that, where new evidence was being advanced as a ground of appeal, it ought to be in the form of an affidavit or other acceptable medium (Binnie v HM Advocate 2002 SCCR 738, LJ-C (Gill) at para [15]). There was no new evidence in relation to this witness. In any event, it was clear from the statements produced that the name of this witness had been identified. There was no explanation given as to why she could not have been traced and precognosced.

[35] In relation to the other witnesses, there was also no explanation as to why they could not have been identified, traced and precognosced by the appellant's agents. In this regard, the circumstances were similar to those described in Burzala v HM Advocate 2008 SCCR 199 (Lord Macfadyen at para [49]).

6. Decision

[36] The court is, at this stage, concerned only with the issue of whether there is a "reasonable explanation of why" "evidence which was not heard at the original proceedings" was not so heard (1995 Act s 106(3)(a) and (3A)). The test is less stringent than that under the former provision, which required the appellant to satisfy the court that the evidence could not reasonably have been made available at the trial. The test requires to be applied flexibly in light of what the court considers to be necessary or expedient in the interests of justice (Campbell v HM Advocate 1998 JC 130, Lord McCluskey at 169). However, the test still requires an appellant to provide a reasonable explanation for the evidence not being heard at the trial. There are two elements to that. First, the court has to be satisfied that the explanation is a genuine one. Secondly, the explanation requires to be reasonable.

[37] In relation to Miss Donlin, there is an initial question of whether the material presented amounts to "evidence" at all. It has been made clear that an appeal on the ground of new evidence must proceed on the basis of such "evidence" being in existence in terms of section 106(3)(a). That "evidence" requires to be demonstrated to the court in limine in an acceptable form. In the normal case this may be by affidavit or some other medium, such as an audio or video recording clearly indicating that the witness is saying what he or she is alleged to be saying (Binnie v HM Advocate (supra) LJ-C (Gill) a para [12]). A precognition, other than one taken on oath, "is not the authentic word of the witness" but "merely the precognoscer's account of what the witness said to him" (ibid para [13]). It is conceivable, although not good practice, that a witness could incorporate the terms of his precognition into an affidavit, if it were made clear that the precognition was read over to the witness, adopted by him or her and the precognition was duly authenticated by the witness and the notary public. Even that has not happened here. If the proposed witness refuses even to swear an affidavit, the court is not able to be satisfied that the witness is in a position to give evidence on the matters contained in the precognition lodged in the appeal process. It is not satisfied that any new evidence from the proposed witness exists. For that reason alone, the appeal in relation to Miss Donlin must fail.

[38] It must be added that the need to satisfy the court of the existence of the new evidence is not overcome by stating that the witness is not persuaded to give evidence because the court declined to make an order guaranteeing her anonymity. Testifying in criminal proceedings is not, or at least not always, a voluntary act. It remains compulsory where the witness is duly cited. A refusal to testify, or to answer specific questions, may have significant consequences for any person. It was a matter for the appellant to decide whether to call the witness to give evidence. He did not do so.

[39] In any event, the court does not accept that the explanation advanced for Miss Donlin's testimony not being available at the trial is either genuine or reasonable. Miss Donlin was in a circle of friends which included the appellant's partner, her sister and his niece. The statements available to the appellant prior to the trial revealed her name, albeit that it was variously spelled. The court does not consider that, prior to the trial, there was any room for confusion, especially in the mind of the appellant, whereby it might have been thought by him that Jennifer Donlin was the same person as Caroline Donnelly. It considers that the appellant was either aware of the presence of this witness in the pub at the time of the incident or could easily have found that out himself from speaking to his partner or niece, or the others in the group that he did know. He could with equal ease have found out her address if he had wanted this matter pursued. Standing the terms of his trial agents' letter and the existence of the various relationships to the appellant within the relevant group, the court is not prepared to accept his evidence that he did not know the witness's identity and was not able to ascertain her whereabouts.

[40] In relation to Messrs Cochrane, Dempster and Strickland, these persons were all well known to the appellant for one reason or another. The court has little difficulty in concluding that the appellant either knew that they were all in the pub on the evening in question or could quite easily have ascertained that fact from simple enquiries amongst the bar staff, from viewing CCTV footage and from asking the other customers whom he did know had been present.

[41] The appellant was the manager of a pub in the Nitshill area, in which it is clear, from what he himself said to the police at interview, violence was not a rare occurrence. The court is unable to accept as plausible the proposition that the appellant considered that the police would necessarily have traced all those present in the pub at the material time, or that all those present would have been inclined to go to the police to relate what they had seen and heard. The court is equally unable to accept that this appellant would not have requested or caused investigation to be made in relation to persons known to be in the pub, if he had thought that the persons in question might be useful witnesses in support of his position at trial. From the information and materials before it, the court concludes that the appellant was content with what his trial counsel and agents did by way of investigation in the lead up to the trial.

[42] The present case echoes Burzala v HM Advocate (supra) where, equally, it was held that the new evidence came from a witness who was:

"a member of a class of witness whose ability to confirm the appellant's position could readily...have been investigated... [T]he steps by way of investigation that could reasonably have been undertaken on the appellant's behalf go beyond merely contacting witnesses suggested by the appellant, but include those steps that could and should have been undertaken if thought had been applied to possible sources of helpful evidence".

In a similar vein to the conclusion in Burzala, assuming for present purposes that the evidence from all of the witnesses now tendered is factually accurate, all of these witnesses could easily have been uncovered in the course of a reasonable investigation in preparation for the trial. In these circumstances there is no reasonable explanation for their evidence not having been tendered at the trial and the appeal must be refused on that basis. It is not open to the appellant in this process to tender as new evidence witnesses of whose existence he was aware and whom he could have instructed be traced, precognosced and cited to give evidence at his trial.