Appellant: Findlay QC, Young; Capital Defence Edinburgh (For Cairns Brown, Dumbarton)

Respondent: Edwards, AD: Crown Agent

2 August 2013

Introduction

[1] On 20 September 2012, at Glasgow High Court, the appellant and his co-accused Darren McDevitt were convicted of the following charge:

"on 29 August 2011 at a cycle path near to the River Leven, near to Dalquhurn Road, Renton you ... did assault Michael Herbison ... repeatedly punch and kick him on the head and body and otherwise inflict blunt force injuries on him, discharge an airgun pellet at him and cause said pellet to strike him on the body, repeatedly stab and strike him on the head and body with a knife or knives or similar implements and thereafter throw him into the water of the River Leven and you did murder him."

[2] The note of appeal states two grounds , namely, (1) that there was insufficient evidence to warrant a conviction and (2) that, even if there was sufficient evidence, no reasonable jury could have convicted on the basis of it. At the hearing of the appeal, the second ground was not pressed. It was, rather, subsumed within ground (1).

The evidence

[3] On the evening of the date libelled, the deceased, the appellant, McDevitt, Nicky Gordon and others were drinking together at the appellant's home.

[4] At some point in the evening, the deceased and the appellant's next door neighbour cycled to the shops together, but on the way back, the deceased stopped by the bridge over the river, and told the neighbour that he was going to meet "Stephen Crawford and that". The neighbour continued home leaving the deceased alone under the bridge. At that time the deceased was uninjured.

[5] Others who were at the appellant's flat gave evidence that the appellant, McDevitt and Nicky Gordon left there shortly after the deceased. They had some form of "gun bag" or "rifle bag". The appellant told them that he was going to shoot rabbits or cans. A witness also saw the appellant, Gordon and another together in public that evening with a "sleeve you'd put a gun in" that seemed to have something inside. The appellant told that witness that he was going to the waterside to shoot rabbits or rats.

[6] At around 10pm that evening an argument was heard emanating from the River Leven. It was followed by a loud splash.

[7] There was evidence before the jury that when the appellant returned home later that evening he was covered in mud and seemed agitated.

[8] The jury heard evidence that the appellant told his girlfriend the next day that the police would ask about the deceased's whereabouts; and that she was to tell them that he had been at his mother's home on the previous evening. The appellant gave a false alibi when questioned by the police that day.

[9] The body of the deceased was later found in the River Leven. Post mortem examination revealed wounds and bruising consistent with the terms of the charge, and, in particular, consistent with his having been shot with an air rifle.

[10] The appellant's shoes were found to be stained with the blood of the deceased, as was a bottle of vodka in his home. The appellant's DNA was found at the top of the bottle. This was consistent with him having drunk from it. In both cases the blood stains included droplets consistent with him having been close to the deceased while the deceased was bleeding.

The submissions

[11] Counsel for the appellant accepted that this was a circumstantial case. He accepted that there was sufficient evidence to show that the deceased had encountered the appellant, amongst others, on the banks of the River Leven, and that he had been murdered there. But that was as far as the evidence went. It was not sufficient to show that the appellant was involved in the murder of the deceased. It did not answer the question: what did the appellant do? Nor did it show that there was more than one person involved in the death. Regarding the evidence of the air pellet wound, there was no evidence as to who fired the weapon or that the appellant was present when it was fired. There was no evidence which linked the appellant with a bladed weapon. The blood staining on the shoes was evidence which was, he accepted, significant. However, it could have occurred by any impact with wet blood; it need not mean the appellant was close to the deceased while he was bleeding. In any event, proximity to the locus of an assault did not necessarily show that the appellant was party to it. The Crown placed undue reliance on the false alibi; it was incorrect to say that it could only have been proffered by the killer since it could have been proffered by anyone who was present at the death though not involved in it. That said, Mr Findlay accepted that it was open to the jury to regard the false alibi as connecting the appellant with the death; they did not require to set it aside.

[12] The Crown submitted that there was sufficient evidence to prove the case circumstantially. Whether such a case had been proved beyond reasonable doubt and what inferences ought to be drawn from the circumstances were matters for the jury. The blood-staining was particularly significant, since the deceased had been uninjured immediately before the encounter. It was open to the jury to infer from the blood-staining that the appellant was not only close to the occurrence of but involved in an assault. In addition there was evidence suggesting that the appellant was in possession of an air rifle that evening. That was significant where the deceased had a wound consistent with being shot with an air rifle. Later that evening the appellant was agitated and covered in mud. The appellant had also given a false alibi at a time when the body was yet to be discovered; only those involved in the attack would know why the deceased was missing. Evidence of a false alibi was relevant to establishing a circumstantial case (Bovil v HM Advocate 2003 SCCR 182).

The trial judge would not, in these circumstances, have been entitled to uphold a submission of no case to answer: (Williamson v Wither 1981 SCCR 214 at 217).

Discussion

[13] The appellant was convicted on the basis of circumstantial evidence. It came from several sources. It is of the nature of such evidence that each piece of it does not, of itself, need to be incriminating; each adminicle may give rise to a number of possible inferences (see: the Lord Justice - General (Rodger) at p. 185C of Mack v HMA 1999 SCCR 181, as relied on by the Lord Justice General (Cullen) in Al Megrahi v HMA 2002 SCCR 509 at para 35). What those pieces of evidence amount to, if anything, depends on whether they are accepted by the jury and on what inferences, if any, are drawn by the jury from such evidence as they do accept. There is, as Lord Justice General Rodger observed, in Mack, nothing strange about that.

[14] Accordingly, it is only where it can be said that there is, amongst the circumstantial evidence, no evidence which, if accepted, could entitle the jury to conclude that the accused committed the offence of which he stands charged, that a Crown case lacks sufficiency.

[15] The appellant was charged with the murder of the deceased together with a co-accused. It was open to the jury to convict him of murder on an art and part basis if they were satisfied, on evidence which came from more than one source, that he had actively associated himself with a common criminal purpose which included the taking of human life and murder was committed in the furtherance of that purpose (McKinnon v HMA 2003 SCCR 224).

[16] The essence of this appeal came to be that, whilst it was accepted that a murder was committed, unless there was evidence that there was more than one person involved in the death of the deceased and, furthermore, evidence of what it was that the appellant actually did, there could not be said to have been a sufficiency of evidence in the case against him. The issue is, however, whether, in this circumstantial case, the jury were entitled to infer that the appellant actively associated himself with a common purpose that included the taking of life. We are readily satisfied that they were so entitled. It was not necessary that they be able to identify precisely what the appellant - or, indeed, his co-accused - did.

[17] On the evidence, it was plainly open to the jury to conclude that more than one person was involved given that witnesses heard two male voices at the riverbank at the time that a loud splashing sound was heard which, in turn, coincided with the period during which the death of the deceased was said to have occurred. Regarding the appellant, the deceased had named him as a person he was going to meet, he had gone out with an air rifle and a stated intention of shooting that night, the deceased had suffered an air pellet wound, he had returned home muddy and agitated, he had the deceased's blood on his trainers, his DNA was on a vodka bottle "mouthpiece" which also bore the deceased's blood and he had thereafter given a false alibi at a time when the authorities did not know of the death of the deceased; they were looking for a missing person. Further, he had told his girlfriend to support his false alibi. Whilst the evidence about the false alibi may not necessarily have yielded the inference that the appellant was the killer, it was relevant (see: Bovil) and it plainly indicated that he knew of the death of the deceased, had something to hide in relation to it and it could not be said that it was not open to the jury to accept the inference that the Crown sought to draw, namely that it showed that the appellant was the killer - or one of them.

[18] It is, of course, correct to say that none of these pieces of evidence could, by themselves, have demonstrated that the appellant murdered the deceased. That is not, however, the issue. When they are considered together what emerges is, in common with many circumstantial cases, a catalogue of evidence from which a clear inference could, if the jury considered it appropriate to do so, be drawn namely an inference that the deceased was guilty of murder along with his co- accused. That is, evidently, what they did. This appeal must, accordingly, in all these circumstances, be refused.