APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Mackay of Drumadoon	[2012] HCJAC 50 Appeal No: XC213/05 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION AND SENTENCE by BRENDAN CHRISTOPHER DIXON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, M C Mackenzie; Capital Defence Lawyers

Respondent: Prentice, Solicitor Advocate QC, Advocate Depute; Crown Agent

18 April 2012

Appeal against conviction

[1] The appellant was charged along with Patrick Docherty and Colin Miller with the murder of Margaret Irvine, aged 91, at her home at 21 Barward Road, Galston, on Sunday 28 September 2003 (Charge 3). He was also charged with attempting to defeat the ends of justice by washing himself, his footwear and his clothing with the intention of destroying any evidence linking him to the murder (Charge 4).

[2] The appellant lodged a Special Defence of Alibi, in the following terms:

"McPherson, for the panel Brendan Dixon, pleads not guilty and specially and without prejudice to said plea states that, between the hours of 1.00 am and 1.00 pm on Sunday 28 September 2003, between which times the crime libelled in charge (3) is believed to have been committed, the panel Brendan Dixon was within the dwelling house situated at 23 Tinto Avenue, Kilmarnock in the company of Kevin Donald and Margaret Marie Dixon, and thereafter in a car journey between the towns of Kilmarnock and Hurlford in the company of Robert Allan Smith and thereafter within the town of Hurlford and more specifically within the dwelling house situated at Portland Brae, Hurlford, in the company of Lee Sheville and Antoinette Wallace."

[3] A trial took place in Kilmarnock High Court. On 1 March 2005, the appellant was convicted of both charges, the jury having rejected the alibi evidence. Patrick Docherty was also convicted of murder. Colin Miller was acquitted not proven.

[4] The appellant appealed against conviction. In November 2009, four Grounds of Appeal were argued, namely Ground 1 (insufficient evidence), 2 (misdirection relating to corroboration), 4 (the treatment of two defence witnesses), and 7 (non-disclosure of police statements of a Crown witness Sheena Orr). Two grounds (Grounds 3 and 5) were not insisted upon. Counsel sought to continue Grounds 8 and 9, which related to a police interview with the appellant which had taken place without his having had the benefit of a solicitor. The continuation was sought to await the outcome of the appeal to the Supreme Court in Cadder v HM Advocate [2010] UKSC 43; 2010 SCCR 951; 2010 SC (UKSC) 13; 2010 SLT 1125.

[5] On 26 March 2010, the court refused Grounds 1, 2, 3, 4, 5, and 7: Docherty and Dixon v HM Advocate [2010] HCJAC 31; 2010 SCL 874. Details of the murder and the surrounding circumstances can be found in that opinion. Some further details taken from the trial judge's report and necessary for this Opinion (particularly paragraphs [10] and [14] below) are noted here:

Margaret Gill, a charge nurse at Crosshouse hospital, overheard the appellant talking to a patient in the laundry on 6 October 2003. She heard the appellant say that he was being discharged, but that he had been told not to leave the ward because the police were coming to interview him. He said that they were coming to talk to him about the "old dear" or "old bird" who had been killed in Galston. The patient made a reply, to which the appellant said "I'll take my chance".

Doreen O'Farrell, a psychiatric nurse in the hospital, gave evidence of a conversation with the appellant. He said how terrible it was that the old lady had been murdered. He thought that the lady had known the person or people who did it, and had probably let the person or people into the house. He said that the police might want to speak to him about it.

[6] The decision of the Supreme Court in Cadder became available on 26 October 2010. In February 2012, the continued Grounds 8 and 9 were argued in the appeal court. Those grounds are in the following terms:

"8. In connection with the allegations against him, the appellant was detained and interviewed by the police. It is understood that he did not have the opportunity to consult with a solicitor before being interviewed, nor was a solicitor present during that interview. Evidence of that interview was led at the trial. It was relied on by the advocate depute in seeking a conviction. In leading that evidence and seeking conviction, the Lord Advocate was acting incompatibly with the appellant's Convention rights including Article 6(3)(c) and 6(1). Such an act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998.

In any event, the reliance on that evidence by the Crown deprived the appellant of the fair trial to which he was entitled under Article 6(1) and at common law.

9. Separatim. The trial judge ought to have ruled the evidence inadmissible or at least directed the jury to disregard the evidence insofar as it was relied on by the Crown for conviction. Reference is made to the preceding paragraphs."

The appellant's witness statement and his interview with the police
Crown production 20: the appellant's witness statement dated 8 October 2003

[7] The appellant was interviewed on 8 October 2003 by the police in the course of their general inquiries. He was not a suspect at the time. He told the police that he was staying with his sister Marie Dixon at her house at 23 Tinto Avenue, Kilmarnock. He said that he also stayed regularly with his friends Lee Sheville ("Shev") and Antoinette Wallace ("Toni") at their house at 6B Portland Brae, Hurlford. He often slept in an old car parked outside their house. He said that he had separated from his partner Tricia Cooper, who lived at 1 Academy Court, Hurlford.

[8] The appellant told the police that he had last been in Galston "several months ago". In relation to the weekend Friday 26 to Sunday 28 September 2003, he explained that he had been staying at Shev's house. Toni had just returned from hospital with a new baby. The appellant described one night where he had slept in the old car parked in Shev's yard. In the morning, he went into Shev's house, and Toni commented that his clothes were all wet. She washed his wet clothes and gave him dry clothes to wear. He cut himself shaving and left drops of blood in the bathroom. In the evening he went to a party in Hurlford. He stayed at the party until about 11 pm. He then walked to a friend's house in Hurlford, stayed there for about 15 minutes, and walked back to Shev's house hoping to stay overnight. However Shev and Toni were sleeping, so he walked along the old railway line to his sister's house in Kilmarnock, arriving at about half past midnight. He slept on her couch. The next morning his sister told him that an old woman had been murdered in Galston. Later that day he went back to Shev's house in Hurlford.

Crown productions 39, 41, 43, and 45: the police interview of the appellant as a suspect on 31 October 2003

[9] On 31 October 2003, the appellant was interviewed by the police as a suspect. The tape-recordings of the interview were not played to the jury, nor were copies of the transcripts given to them. Parts of the transcripts were read out. In this appeal, the Advocate depute accepted that the interview was struck at by Cadder v HM Advocate, cit sup.

[10] During the interview, the appellant's witness statement of 8 October 2003 was read to him. He confirmed that it represented his position and that he had no alterations to make. He said that he believed that the party had taken place on Saturday night, so he must have slept in the car on Friday night. He knew Pat Docherty but did not like him or associate with him. He had last seen him about 11/2 months before he and his partner Tricia split up. He knew Joseph Leiper, but had not spoken to him about the murder. Nor had he mentioned the murder to any members of staff or patients when he was in Crosshouse Hospital. He agreed that he had spoken to Tricia, who said that she hoped he had nothing to do with the murder. He had reassured her that he had not. He had slept in the car on Friday night, and come into Shev's house on Saturday morning with wet clothes, when he had washed himself. He had arrived at his sister's house in the early hours of Sunday morning. He had slept on her settee. When he woke up, his sister told him something about a woman being murdered in Galston. When it was put to the appellant that Colin Miller had seen him with Patrick Docherty in Galston at about 8 am on Sunday 28 September 2003, and that Toni and Shev said that he had arrived at their home on Sunday morning at about 8.30 am, when he had scrubbed himself with Dettol, and had looked out of their window for four hours, worried about the police, he said that none of that was true, he had been at his sister's.

Alibi evidence

[11] At the trial, the appellant did not give evidence on his own behalf. Two defence witnesses, namely the appellant's sister Marie Dixon and her partner Kevin Donald, were led by the Crown.

[12] Marie Dixon (aged 32 at the trial) had given several statements to the police. In the first, given on 8 October 2003, she explained that the appellant had not stayed in her house for well over a month (and thus he could not have stayed overnight on Saturday 27 to Sunday 28 September 2003). In her second statement, given on 14 October 2003, she said that the appellant had arrived at her house on Sunday 28 September 2003 in the evening, about an hour before a television film, American Pie, began. He had stayed overnight. In her third statement, given on 11 November 2003 (which she acknowledged was given after the appellant had been charged with the murder, and after he had telephoned her on 9 November 2003 wanting her to - in defence counsel's words put to her in cross-examination and accepted by her - "reconstruct her memory"), she said that the appellant had arrived at her house early on Sunday 28 September 2003 and had left at about 12 noon, returning just before the film American Pie started on Sunday evening. During the trial, Miss Dixon gave evidence that the appellant stayed in her house from around midnight on Saturday 27 September 2003 and during the morning of Sunday 28 September 2003, at which time he made several telephone calls, including calls to his partner Patricia Cooper. Miss Dixon's prior inconsistent statements were put to her, and it was suggested to her that she was lying. She denied that. Telephone records showed that there had been no phone calls to Patricia Cooper until Monday 29 September 2003.

[13] Kevin Donald (aged 33 at the trial) had also given statements to the police. In his first statement, given on 8 October 2003, Mr Donald said that he had visited the appellant in Crosshouse Hospital on 5 October 2003, but made no mention of seeing the appellant during the weekend of 27-28 September 2003. In his next statement, given on 11 November 2003 (by which time the appellant had been charged with the murder) Mr Donald said that he could recall the appellant coming to the house at 23 Tinto Avenue, and using the phone on Sunday morning. In his evidence at the trial, Mr Donald said that the appellant arrived at 23 Tinto Avenue just after midnight on Saturday 27/Sunday 28 September 2003. The appellant slept overnight on the couch in the living-room. He was in the house all night. When he got up, he used the phone. According to Mr Donald, (and contrary to the telephone records), the appellant made several telephone calls to Patricia Cooper and to Patricia Cooper's mother.

Jury speeches

[14] The Advocate depute, when addressing the jury, made one reference to the appellant's interview with the police on 31 October 2003, in the following terms (page 347 of the transcript):

" ... When Mr Dixon is asked in the course of his interview with the police whether he ever said anything to anybody in the hospital about the Galston murder, he said no. Now if you accept the evidence of Margaret Gill, the charge nurse, Doreen O'Farrell, the nurse, then he did. If he did, why lie about it to the police? ..."

[15] Counsel for the appellant, in his defence jury speech, did not refer to the police interview on 31 October 2003, but emphasised that the appellant had volunteered information to the police at the outset of their inquiries, as recorded in the witness statement dated 8 October 2003. Counsel reminded the jury:

" ... that it was Mr Dixon who, when first asked about these matters on 8 October, told the police about Lee Sheville and Toni Wallace. He was the one that volunteered this information, that he went to their house the night before the party, slept in the car, and we know the party was on Saturday; and after the party, left the party and went to his sister's in Kilmarnock. It is Brendan Dixon who volunteers these people who the Crown say are so damning against him. He volunteers that information. If he thought, if he knew that, having been involved in the murder, he went straight back to Lee Sheville's and acted in this way, he would hardly volunteer that information to them."

Submissions
Submissions for the appellant

[16] Ground 8: (a) A real possibility of a different verdict: Counsel submitted that, as the police interview was a mixed statement, the jury could use it as a source of alibi evidence, independent of the two alibi witnesses Marie Dixon and Kevin Donald. But the police had subjected the appellant to close questioning. They had not accepted what he said, and had ultimately called him a liar. That had a collateral effect on the evidence of the two alibi witnesses, in that it was easier for the jury to reject their evidence. It was significant that defence counsel had not relied directly on the appellant's police interview, despite its being exculpatory. The reason for that approach was clear: counsel did not wish to draw attention to the nature of the questions being put to the appellant, and the challenging of his account as lies. If therefore the evidence of the police interview was subtracted from the evidence at the trial (leaving Marie Dixon and Kevin Donald as the only witnesses providing alibi evidence), the appellant would have had a better chance of being acquitted. In other words, there was a real possibility that the jury might reasonably have reached a different verdict: McInnes v HM Advocate [2010] UKSC 7; 2010 SC (UKSC) 28; 2010 SLT 266.

[17] (b) Sufficiency of evidence: Counsel submitted that, minus the police interview, the other strands of circumstantial evidence were not strong. As the Crown case depended on concert, the alleged utterances by the appellant to witnesses such as Joseph Leiper did not go far enough. All they did was to place the appellant at the scene of the crime: they did not demonstrate participation. Thus if the evidence of the police interview was subtracted from the evidence at the trial, the result was sufficient to meet the second limb of the test in McInnes v HM Advocate cit sup.

[18] (c) Final submission on Ground 8: For all the above reasons, counsel invited the court to conclude that a miscarriage of justice had occurred. The conviction should be quashed.

[19] Ground 9: The trial judge had made a material misdirection by failing to direct the jury that they must disregard the evidence of the police interview, so far as that interview was relied upon by the Crown. Any material misdirection deprived the appellant of a fair trial. Accordingly the appellant had suffered a miscarriage of justice, and the conviction should be quashed.

Submissions for the Crown

[20] Ground 8: The Advocate depute accepted that the lack of the offer of legal advice at the interview made that interview fall foul of Cadder v HM Advocate, cit sup. Thus the appeal court had to apply the test set out in paragraph [64] of that case. In relation to sufficiency of evidence, the Crown's contention was that there had been ample circumstantial evidence upon which the jury could convict the appellant without the evidence of the police interview. There was a significant body of evidence capable of undermining the alibi relied upon by the appellant, without any reference to the police interview. The trial Advocate depute, in his speech to the jury, had used the body of evidence for that purpose, without referring to the police interview. In his police interview, the appellant maintained the position already adopted in his witness statement, namely that he had been elsewhere at the time of the murder. As his own counsel reminded the jury, it was the appellant who, in his witness statement, first mentioned Lee Sheville and Antoinette Wallace, and who gave information unfavourable to his defence. Evidence relating to the witness statement had been led before the jury without objection. While the police officers conducting the subsequent interview on 31 October 2003 may have given the impression that they did not accept what the appellant was telling them, no common law objection based on unfairness or oppression had been made. It had not been suggested by the defence either that the appellant had not said what he had said, or that the information had been extracted from him by improper means. What had happened in the interview had been the appellant's adherence to his earlier position, and the supplying of further information about that position. In conclusion, the Advocate depute invited this court to conclude that neither limb of the test set out in paragraph [64] of Cadder v HM Advocate, cit sup had been satisfied, and that the appeal should be refused.

[21] Ground 9: The case of Crozier v HM Advocate [2011] HCJAC 95; 2012 SCL 37 governed the issue. The evidence relating to the police interview had been led at the trial without objection, and had in fact re-asserted and confirmed the appellant's alibi. The appellant's approach was misconceived, and Ground 9 should be refused.

Discussion
Ground of Appeal 8
[22] As Lord Hope of Craighead noted in paragraph [64] of Cadder v HM Advocate, cit sup:

"[The quashing of the conviction] would only be appropriate if it was clear that there was insufficient evidence for a conviction without the evidence of the police interview or that, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them: McInnes v HM Advocate [2010] UKSC 7, 2010 SLT 266."

We therefore address each limb of the test set out in paragraph [64] in turn.

[23] Whether there was insufficient evidence without the evidence of the police interview. The Crown presented the case on the basis that the time of death was about 8 am on Sunday 28 September 2003. The case against the appellant, excluding the evidence of the police interview, included the following pieces of evidence.

(a) The appellant's friends Lee Sheville and Antoinette Wallace gave evidence which directly contradicted the appellant's alibi. Lee Sheville said that the appellant left their house at Portland Brae, Hurlford, at about 9 pm on Saturday 27 September 2003. When Mr Sheville got up at 7 am the next morning (Sunday 28 September 2003) there was no sign of the appellant. Miss Wallace got up at about 8.30 am. The appellant then arrived at their house. They described him as sweating profusely, soaking wet up to the knees, with wet and muddy trainers. He took his clothes off and scrubbed himself and his trainers with Dettol, using half a bottle. He put on different clothes, and Miss Wallace washed his discarded clothes. Mr Sheville said that the appellant was "hyper ... paranoid ... spooked". The appellant stared out of the window for about four hours. He said that he was worried that the police would come as he had been arguing with his partner Tricia Cooper.

(b) There was evidence from Detective Constable Cree and Elizabeth Paton that Mrs Irvine's house in Galston was connected to Hurlford by a pedestrian route measuring about 2 miles via a path, a field, and a disused railway line, which could be walked in under half an hour, and run in just under 15 minutes.

(c) Various witnesses gave evidence that the appellant made statements to them about the murder. Lee Sheville said that the appellant told him that Pat Docherty and Dave McCormack were responsible for the murder. The appellant's partner Patricia Cooper gave evidence that the appellant contacted her in October 2003, and asked if Pat Docherty had been arrested. When she asked "Why Pat?" he replied "Because Pat done it", but then he denied having been present at the murder. A patient at Crosshouse Hospital, Patricia Greenan, testified that the appellant told her that he had been present when there was a murder, but that he had not done it. Charge Nurse Margaret Gill overheard the appellant saying to a patient that he could not leave the ward because the police were coming to interview him about the "old dear" or "old bird" killed in Galston, adding the comment "I'll take my chance". Psychiatric Nurse Doreen O'Farrell said that the appellant commented how terrible it was that the old lady had been murdered. He thought the lady must have known the people who did it, and had probably let them in. He said that the police might want to speak to him about it. Joseph Lieper said that the appellant told him that Pat Docherty had done the murder and that he (the appellant) had been present and had run away. One consequence of the appellant's naming of Pat Docherty (a co-accused) was that if the jury concluded on the evidence that Pat Docherty was involved in the murder, the appellant demonstrated special knowledge by naming Mr Docherty as a participant.

(d) The appellant's alibi witnesses, namely his sister Marie Dixon and her partner Kevin Donald, gave the police various accounts of the appellant's whereabouts during Saturday 27 to Sunday 28 September 2003. Marie Dixon first told the police that the appellant had not stayed in her home in Kilmarnock for well over a month (and therefore could not have stayed at Tinto Avenue on the Saturday and Sunday in question). She next told the police that the appellant had stayed with her on Sunday 28 September 2008, arriving in the evening about one hour before a TV film was about to start. Then she told the police that the appellant had been in her house from early on Sunday morning. During the trial, Miss Dixon gave evidence that the appellant stayed in her house from about midnight on Saturday 27 September 2003, and that he had telephoned his partner Patricia Cooper. Mr Donald initially told the police that he had visited the appellant in Crosshouse Hospital on 5 October 2003, but did not mention seeing him on Saturday 27/Sunday 28 September 2003. In his next statement (following the appellant's being charged with the murder) he said that the appellant came to 23 Tinto Avenue and used the phone on Sunday morning. During the trial, Mr Donald gave evidence that the appellant arrived at 23 Tinto Avenue just after midnight on Saturday 27/Sunday 28 September 2003. The appellant slept overnight on the couch in the living-room. He was in the house all night, and when he got up, he used the phone. On the basis of the prior inconsistent statements and the telephone records (quite apart from an assessment of the witnesses' demeanour) the jury were entitled to disbelieve the evidence of Miss Dixon and Mr Donald, and to reject the appellant's alibi. In that event, the jury were also entitled to conclude that the appellant had concocted an alibi for the time of the murder.

(e) Patricia Cooper gave evidence that she had not had any telephone calls from the appellant on Sunday, although there had been calls on Monday.

(f) There were the further adminicles of evidence relating to the circumstances surrounding the murder, all as set out in paragraphs [3] to [6] and paragraphs [65] to [70] of the opinion in Docherty and Dixon v HM Advocate [2010] HCJAC 31; 2010 SCL 874. In particular, that evidence was sufficient to entitle the jury to conclude that the perpetrators were acting in concert, developing from pre-planned concert to spontaneous concert as events unfolded, and moving from theft (or theft by house-breaking) to robbery and murder.

[24] In our opinion, the evidence, excluding the evidence of the police interview, established a strong circumstantial case against the appellant with an element of special knowledge: cf paragraph [60] of Docherty and Dixon, cit sup. We are not therefore persuaded that there was insufficient evidence if the evidence relating to the appellant's police interview were to be excluded.

[25] Whether there was a real possibility that the jury would have arrived at a different verdict had they not had the evidence of the police interview before them

In the police interview, the appellant denied any involvement in the murder and set out his alibi (namely that he was at his sister's house at the relevant time). He said that he had not made any statements relating to the murder to persons such as Lee Sheville, Patricia Cooper, the nurses at Crosshouse Hospital, the hospital patient Patricia Greenan, and Joseph Leiper. He said that it was on Saturday morning (not Sunday morning) that he arrived, dirty and wet, at the house of Lee Sheville and Antoinette Wallace. He had washed and changed his clothes on that occasion. Despite questioning by police officers, he did not depart from that position.

[26] Having carefully considered all the circumstances of the trial, it is our view that there was no real possibility that the jury might have reached a different verdict had they not had the evidence of the police interview before them. The jury had all the strands of the circumstantial case against the appellant (including sub-paragraphs (a) to (f) in paragraph [23] above). Furthermore, as the trial judge points out at page 21 of his Supplementary Report:

" ... Before taking evidence of the contents of the interview following the appellant's detention, the Advocate depute referred [the witness, namely the interviewing police officer] to the appellant's witness statement [Crown Production 20] and elicited from him parts of its contents. Thereafter he referred the witness to the transcript [Crown Productions 39, 41, 43, and 45] containing the full [witness] statement, and used that to deal with matters mentioned in the following sections of the interview..."

[27] If the evidence of the police interview had not been led, the witness statement would still have been before the jury, who would have heard the same basic exculpatory explanation from the appellant as was provided in the interview, namely a denial of any involvement in the murder, and a statement that he was elsewhere at the relevant time, at his sister's house.

[28] As for the manner of questioning which at some stages indicated that the police did not believe what the appellant was saying, standing the nature and strength of the circumstantial case which was building up against the appellant, the jury would in our view expect the appellant's position to be tested to some extent by the police. No objection was taken on the ground that the questioning was such as to extract answers by improper means.

[29] In the result we are not persuaded that the police interview had the collateral effect on the alibi witnesses contended for by the appellant's counsel. As the trial judge observes at page 23 of his Supplementary Report:

" ... The jury had simple reason to reject the evidence of the appellant's sister and her partner, who were the witnesses to his alibi. Their evidence that he was at their house on the Saturday night until the Sunday morning was inconsistent with the statement that they gave to police officers before the appellant was charged with murder. They changed their position after the appellant telephoned his sister on 11 November 2003 after he had been charged. In that call, he told his sister what he was doing on the weekend of the murder, and she reconstructed her evidence ..."

[30] In all the circumstances, we are not persuaded that, had the evidence of the police interview been excluded from the trial, there was a real possibility that the jury would have arrived at a different verdict: McInnes v HM Advocate, cit sup.

Ground of Appeal 9

[31] We adopt the observations and reasoning in Crozier v HM Advocate, cit sup, particularly paragraph [16] which is in the following terms:

" ... insofar as it was submitted that the trial judge misdirected the jury by not informing them that they should not have regard to the terms of the police interview, we consider this argument to be misconceived. Insofar as the leading of evidence of what was said in the interview might now be open to objection in light of the decision of the Supreme Court in Cadder v HM Advocate, that is a matter which goes to the admissibility of the evidence. For no doubt understandable reasons, no objection was taken at the trial. There was accordingly no basis upon which it would have been incumbent, or indeed proper, for the trial judge to have directed the jury to ignore the terms of the police interview."

[32] We would also observe that the trial in this case occurred some three years before the decision in Salduz v Turkey (2008) 49 EHRR 421, which led to the ruling in Cadder v HM Advocate cit sup. Thus any direction to the jury during the trial to disregard the evidence of the police interview would no doubt have been objectionable to the defence, as the police interview re-stated and confirmed the appellant's denial of any involvement and gave details of his alibi. In the words of the trial judge at page 24 of his Supplementary Report:

" ... the evidence [relating to the police interview] was led without objection, and as has already been noted, the effect of the evidence was that the appellant denied his involvement in the murder. In that situation, it respectfully seems to me that it would have been inappropriate to direct the jury to disregard what was essentially a denial of involvement, and evidence which might have assisted the appellant in persuading the jury that at the time of the murder he was in his sister's house ..."

Appeal against conviction: decision

[33] For the reasons given above, no miscarriage of justice has occurred. We refuse Grounds of Appeal 8 and 9. In the result therefore the appellant's appeal against conviction is refused in its entirety.

Appeal against sentence

[34] Counsel advised the court that the appellant did not insist upon the appeal against sentence. The appeal against sentence is accordingly refused.