APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Justice General
Lord Nimmo Smith
Lord Wheatley
|
[2007]
HCJAC 68
Appeal
No: XC265/04
OPINION OF THE COURT
delivered by LORD WHEATLEY
in
NOTE OF APPEAL AGAINST CONVICTION
and SENTENCE
by
JAMES WILLIAM SCOTT
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Bell, Q.C., Gilchrist, Q.C.; Balfour & Manson, SSC
Alt: Stewart, A.D.; Crown Agent
5 December 2007
[1] The appellant
was found guilty by a majority verdict of the jury at the High Court in Glasgow on 16 March
2004 of the
murder of Jason McKee on 23 November 2002.
The co-accused, who was the appellant's father, was also convicted of
that offence by the unanimous verdict of the jury. In addition, the co-accused was also found
guilty of a separate charge of assaulting Brian McKee, the father of Jason
McKee, by stabbing him on the body with a knife or similar instrument to his
severe injury. The appellant had also
appeared on that charge at the outset of the trial, but the advocate depute
withdrew the libel against him before the case went to the jury.
[2] The evidence
in the case appears to have been in a relatively brief compass. The now deceased and his father were drinking
in the Princess Bar in Smithycroft Road, Glasgow.
The appellant, also in the company of his father, was likewise in the
same bar, but apparently the two families did not know each other. At one point in the evening a young man,
identified at the trial by Brian McKee as the appellant, began speaking in an
aggressive and threatening manner towards Jason McKee, and indicated that he
and the now deceased should go outside.
No substantive reason appeared from the evidence which would explain that
behaviour, other than the possibility that the appellant thought that Jason
McKee had spilled his drink. The
deceased's father indicated that his son was anxious to avoid trouble and
decided to leave the bar in order to go home.
The deceased then left by the front door.
[3] At about the
same time, Caroline Muir, the manageress of the bar, had heard the aggressor
swearing (although she was not able positively to identify him) and asked him
to leave. He did so, accompanied by his
father. They both left by the back
door. From other evidence, it appears
that a young man matching the description of the appellant was then seen
passing by the window which looked out of the side wall of the premises, as he
went along a lane which connected the short distance between the back and the
front of the public house. The fatal
attack took place at the front of the premises a few seconds later.
[4] Meanwhile,
the deceased's father, Brian McKee, decided to follow his son home, almost
immediately after he had left through the front door of the bar. As soon as Brian McKee got outside, he saw
his son being attacked, and in particular witnessed the co-accused holding his
son and the appellant assaulting him. To
begin with, Brian McKee thought that the appellant was punching the now
deceased, but then realised that he had a knife in his hand. Brian McKee also said that the co-accused,
who was holding his son by the shoulder, had a knife too, and that as he
arrived on the scene the co-accused let go of his son and struck him in the
stomach with a knife. Jason McKee died
shortly afterwards from multiple stab wounds.
[5] As the trial
judge has noted, Brian McKee was the only eye-witness to the assault with which
this appeal is concerned. The Crown
relied on other circumstantial evidence in order to corroborate the case
against the appellant as the person who carried out the murderous assault. At the close of the Crown case, defence
counsel submitted that there was no case for the appellant to answer, because
there was insufficient corroboration of the evidence of the single eye-witness
who identified the appellant as being responsible for the assault on the now
deceased. This submission was in effect
the same submission made by the appellant's counsel before this court in terms
of his first ground of appeal. The trial
judge repelled the submission of no case to answer, and the jury, in due
course, found the appellant guilty of murder.
The trial judge imposed the mandatory statutory sentence of life
imprisonment, and a punishment part of that sentence of 14 years.
[6] The appellant
then lodged a note of appeal against this conviction on 2
September 2004. The note contained grounds of
appeal numbered 1, 2, 3(i) and 3(ii). At
the first sift, all of these grounds were refused leave to appeal. At the second sift, after some further
investigation, ground 3(i) of the Note of Appeal was allowed leave. This ground alleged that there was inadequate
preparation in the conduct of the appellant's case by those representing him at
the trial, and in that respect particular reference was made to an incident
which is said to have taken place prior to the identification parade which was
held on 22 May 2003, when the appellant maintained that the principal
eye-witness, Brian McKee (who was also in custody at H.M. Prison, Barlinnie at
the time) had seen him in a cell in a holding area, on the door of which was
the appellant's name and the notation "ID".
[7] Thereafter,
at a procedural hearing on 1 December 2005, the court considered an application
in terms of section 107(8) of the Criminal Procedure (Scotland) Act 1995, and allowed ground 1 of
the original grounds of appeal to be reinstated, and also allowed supplementary
grounds of appeal now numbered 4, 5 and 6 to be received. Ground 1, as originally stated, is to the
effect that there was insufficient corroborative evidence to justify the case
going to the jury. Ground 4 is concerned
with the appellant's claim that the introduction of the identification evidence
referred to in the existing ground of appeal 3(i) was incompatible with his
right to a fair trial in terms of Article 6(1) of the European Convention on
Human Rights, and resulted in an unfair trial.
Ground 5 is based on the alleged failure of the trial judge to give directions
on the unreliability of identification evidence, standing the absence of any
such evidence from any source other than Brian McKee. Ground 6 refers to an alleged failure by the
Crown to disclose material information to the defence concerning the full
nature of the criminal history of the witness Brian McKee, and to see that such
evidence was placed before the court.
[8] The first
ground of appeal to be argued in the present appeal therefore is that there was
insufficient corroborated evidence in law to convict the appellant, and that
the trial judge erred in repelling the submission that the appellant had no
case to answer. Counsel for the
appellant submitted that the only eye-witness identification of the assault
came from the witness Brian McKee. No
other witness in the case, from among those who were in the bar in the evening
in question, was able to identify the appellant in court, and none of those
witnesses identified the appellant at the identification parade which was held
at London Road Police Station on 22 May 2003, apart from Mr. McKee. In particular it was submitted by counsel
that there was no evidence which identified the appellant as the person who
left the public house shortly before the incident took place. At best for the Crown, there was evidence
which indicated that the appellant had been in the bar in the evening in
question, and may have been involved in an altercation with the deceased, but
that was all. It was accepted that a
bottle of Smirnoff Ice had been left on the counter of the bar which bore the
appellant's fingerprints and DNA, but there was no link between his departure
from the bar and the incident which resulted in the death of the deceased. Reference was made to the case of Hoy v H.M. Advocate 1998 S.C.C.R. 8, where it was held that evidence of
earlier antagonism between the deceased and the accused was not sufficient to
corroborate the circumstances of a fatal attack.
[9] We are not
convinced that these submissions had any merit.
There was clear and unequivocal evidence from Brian McKee of the detail
and circumstances of the assault, all as libelled in the charge, and in
particular Mr. McKee deponed to the fact that the deceased was assaulted by two
persons, whom he identified. In support
of this there was, in our view, clear evidence of facts and circumstances from
which the jury could infer that the appellant was one of the persons involved
in the assault. First, there was the
evidence of several witnesses, including Pauline Blakely, Margaret Bunton, and
Irene McAnery that a young man who had been standing at the bar showed
antagonism towards the deceased, and shouted to the deceased that they should
go outside. At that point the deceased
left the bar by the front door, followed shortly afterwards by his father. At about the same time, the manageress of the
bar, Caroline Muir, asked the person responsible for these aggressive remarks
to leave the bar. The person thus
addressed did so by the back door, leaving a bottle from which he had been
drinking on the bar counter. This person
was followed by his companion. The
witness Pauline Blakely identified the bottle left on the bar counter as being
one of Smirnoff Ice. Following the
incident, two bottles of Smirnoff Ice were found on the counter. One was linked by forensic evidence to an
unidentified female, but the other showed finger print and DNA evidence linked
unequivocally to the appellant. The
witness Margaret Bunton said that she saw a young man whom she had seen
standing at the bar, and who matched the description of the appellant, going
past the side window of the premises on what clearly was the route which would
take him from the back door to the front of the premises. The witness also saw this person, as he
walked along, take something into his hand from his trouser pocket. The assault on the deceased took place almost
immediately thereafter a very short distance away.
[10] In these
circumstances we are satisfied that the evidence available was plainly capable
of justifying the inference that the appellant was the person who left by the
back door of the public house, accompanied by his co-accused, at about the same
time as the deceased went through the front door of the public house. The jury also had material from which they
could infer that the appellant was seen then going to the front of the public
house, and that the co-accused was subsequently implicated in the murder by
corroborated evidence, including evidence that his spectacles were subsequently
found, contaminated by the deceased's blood, at the scene of the attack. Almost immediately thereafter there was a
fatal assault upon the deceased. The
court was also entitled to have regard to the short period of time which
elapsed between the appellant's aggressive behaviour in the bar and the violent
incident which then took place, and to the short distance between the back door
of the bar and the front of the premises where the attack took place.
[11] There was thus
clear circumstantial evidence which identified the appellant as the young man
who was drinking a bottle of Smirnoff Ice at the bar counter, who then engaged
in a gratuitously aggressive manner towards the deceased, and was shortly
afterwards asked to leave the premises, that he did so leaving his bottle of
Smirnoff Ice on the counter, and that shortly thereafter he participated with
the co-accused in the attack upon the deceased.
Accordingly, it appeared to us that there was ample corroborative
evidence that would justify allowing the matter to go to the jury for their
consideration.
[12] We are not
persuaded that the case of Hoy v H.M. Advocate 1998 S.C.C.R. 8,
which the appellant prayed in aid of his submissions, was in any way of
assistance in determining the issue in this case. Hoy
was clearly decided on its own particular facts and the court did not think it
necessary to refer to any authority in reaching its decision. The case proceeded upon a concession by the
Crown (page 12D-E). Further, there was a
sharp distinction between the circumstances of the case of Hoy and what happened in the present case. The issue in Hoy was the need to find corroboration for the scope or extent of
the violence which was properly attributable to the appellant. The appellant in that case had accepted that
he was one of two people who had assaulted the deceased, but denied being
involved in that part of the assault which produced the fatal blows. It was held that evidence of earlier
antagonism between the appellant and the deceased could not provide
corroboration for the further and more serious part of the assault which the
appellant had denied. It was also
decided in a legal context in which Mackie
v H.M. Advocate 1994 S.C.C.R. 277 was
still regarded as good law (see trial judge's charge, noted at page 11F); the relative dicta in Mackie were shortly
thereafter disapproved in Fox v H.M. Advocate 1998 S.C.C.R. 115. Further, it is not the case that
circumstantial evidence is corroborative only if it is more consistent with the
direct evidence for the Crown than with a competing account put forward by the
accused, as counsel for the appellant appeared to suggest. Rather, we are satisfied that in looking at
circumstantial evidence such as is available in the present case, the function
of the court is to consider the possible concurrence of that testimony with all
the other evidence in the case, having regard to all the circumstances, as
opposed to examining discretely the incriminating nature of each individual
element of that evidence and deciding that none of it had any particular value
(see Al Megrahi v H.M. Advocate 2002 SCCR 509). We therefore reject this ground of appeal.
[13] The second
ground of appeal tabled by the appellant (ground 3(i) in the original Note of
Appeal) is to the effect that the preparation for, and conduct of, the appellant's
trial by those representing him at the time was defective and inadequate in
that, it was said, important evidence had not been produced in the appellant's
defence. In particular it was submitted
that the case against the appellant was crucially dependent on the
identification evidence given by Brian McKee, the deceased's father, who
averred in the most emphatic manner at the trial that the appellant had been
responsible for the murder of his son.
However, counsel for the appellant argued that his evidence in this
respect was fatally compromised. The
appellant maintained that after his apprehension and while he was in a holding
cell in Barlinnie Prison prior to being taken to a local police station for the
purpose of taking part in an identification parade, Brian McKee, who was also a
prisoner in Barlinnie at the material time, and whom the appellant said he
could identify from photographs which had appeared in the press, had looked
into the cell in which he was being held.
The appellant was aware that his own name, and the letters "ID", were on
the outside of the cell in which he was lodged.
He had tried at the time to complain about what happened to the prison
officer in charge (who could subsequently not be identified) without success,
and had also brought what happened to the attention of other prisoners in the
area. He then informed the two police
officers who took him from Barlinnie to the identification parade about what he
said had occurred. Precognitions from
the police officers, confirming that the appellant had told them that something
of the sort had taken place in the holding area in Barlinnie, were produced in
the appeal. At the police station, and
before the identification parade started, the appellant advised Thomas
Bannigan, his solicitor, of what he said had taken place at the prison shortly
before, and Mr. Bannigan objected to the parade taking place on that
ground. The police officer who was to
conduct the parade then took advice from the procurator fiscal's office, and
was advised to proceed with the parade.
Mr. Bannigan's objection was duly noted on the relevant
record. The question of what happened in
Barlinnie Prison prior to the parade was then raised at a pre-trial
consultation attended by senior and junior counsel, Mr. Bannigan and the
appellant, which was held three days before the trial began. Mr. Bannigan had not made any investigation
into the appellant's allegations in the course of his preparations for the
trial or the consultation; witnesses who
might have been able to speak to what had happened were not precognosced or subsequently
led in evidence; and the question of any
possible impropriety in the procedure prior to the identification parade was
not in fact brought up at the trial, and in particular was not used to attack
the evidence of Brian McKee.
[14] In supplement
of this narrative of events at the instance of the appellant, Donald Findlay,
Q.C., senior counsel for the appellant at the trial, submitted a statement that
he could not comment in detail on the appellant's complaint, as he rarely
retained any detailed memory of cases in which he appeared as trial counsel
once the trial was over. He did,
however, have some recollection of a suggestion that something had happened at Barlinnie
involving the appellant and Brian McKee but thought that it had been looked
into by his instructing agent without producing anything of any real
substance. He also recollected that
there was better material available to him for the purpose of cross-examining
Brian McKee. Mr. Findlay's junior had
left the Bar sometime after the trial, had destroyed his notes, and had no
recollection of the matter.
[15] Mr. Bannigan
was able by reference to his business file to produce a more detailed
recollection of events, and gave evidence at the instance of the appellant
during the appeal hearing. He confirmed
that at the identification parade, the appellant had claimed that Brian McKee
had looked into his holding cell in Barlinnie, and that he had accordingly
objected on behalf of his client for that reason to the parade being held. He also mentioned that he had thereafter
spoken informally to Mr. Findlay prior to the pre-trial consultation. He accepted that he had not carried out any
investigation into what his client had told him; he would only have done so on the
instructions of counsel. He also
confirmed that what the appellant maintained had happened prior to the parade
was fully discussed at the pre-trial consultation on 5 March
2004, some
three days before the trial started. Mr.
Bannigan stated that as the appellant admitted that at the material time he was
with his father in the Princess Bar (outside which the murder occurred), that
he engaged in some form of exchange of words with the deceased, and that he and
his father had been asked to leave the public house at the same time as the
deceased and his father (albeit by different exits), Mr. Findlay had taken the
view that the matter could best be dealt with at the trial and that no further
enquiries were needed. Mr. Findlay was
wrong however in his recollection that the incident at Barlinnie had been
looked into by himself; as he had
indicated earlier he would only have done that on the instruction of counsel. Mr. Brannigan also accepted that Brian McKee
was the only eye-witness at the trial who had been able to identify the
appellant, and that the incident which the appellant said had happened at
Barlinnie was not raised with the witness;
however, at the consultation he was satisfied that Mr. Findlay was
aware of the appellant's version of events, and would use that material as and
if he thought fit at the trial.
[16] In these
circumstances, senior counsel for the appellant submitted before us in support
of the second ground of appeal that there was no doubt that the incident
described by the appellant in the holding cell had taken place. It was clear from the relevant current
guidelines on the conduct of identification parades produced by the Lord
Advocate (which were lodged in the appeal) that a suspect should under no circumstances
be seen by a witness prior to the parade taking place. Because Brian McKee was in a position to
observe the appellant's name on the outside of the cell, and the appellant
within, any subsequent identification by him was tainted. The question of the identification of the
appellant at the trial was crucial, as was evident from page 3 of the trial
judge's report, and pages 32 and 33 of the judge's charge to the jury. The challenge to Brian McKee's identification
of the appellant was of the highest importance, especially when the appellant's
position was that he had not been present at the murder. The failure by counsel to put the incident at
Barlinnie to the witness was therefore of fundamental significance. Had the jury been made aware of what had
happened at the prison prior to the parade, it is possible that they would not
have been prepared to accept Brian McKee's evidence identifying the appellant
as being involved in the murder. In that
case the appellant would have been acquitted.
Counsel made reference in general to the case of Anderson v H.M. Advocate 1996 JC 29; 1996 SLT 155; 1996 SCCR 114 in support of his submission
that a fundamental failure to present a substantive defence meant that the
conviction could not stand.
[17] In response
the advocate depute maintained that it could not be asserted with confidence
what (if anything) had happened in Barlinnie Prison prior to the parade. There were curious features, he said, about
the appellant's affidavit; for example
he claimed to identify Brian McKee from photographs which had appeared in the
press, rather than from seeing him in the public house on the night of the
murder. In the event, the affidavit
merely reflected his impression of what might have happened; it was quite possible on reading the
affidavit to conclude that he was making more of the incident than it truly
justified. The advocate depute then drew
a sharp distinction between strategic issues - such as the introduction of a
special defence of alibi or incrimination, and tactical issues - which, for
example, might involve decisions to address a particular adminicle of
evidence. In the first instance, an
accused's legal representatives would normally be required to observe an
instruction to lodge such a special defence;
in the second, the way in which the defence case was presented would be
for counsel to decide. The proper way to
deal with what the appellant said happened before the identification parade
clearly fell into the second category and, as a tactical matter, the approach taken
by senior counsel was both appropriate and entirely within his discretion. The discussion at consultation did not amount
to an instruction to raise the matter in court;
even if it had, senior counsel's discretion in this area could not be
circumscribed. It might well have seemed
to him that there were far more profitable issues to be explored with the
witness. In the event senior counsel had
chosen to attack the witness Brian McKee in his identification of the appellant
not on his reliability, but rather on his credibility. That decision would have been taken within
the changing context of the trial and in the light of how the defence intended
to present the appellant's case to the jury.
This was a matter for counsel's professional responsibility and it was right
that it should be dealt with, as counsel had indicated at the pre-trial
consultation, in the course of the trial.
In fact counsel dealt with the issue by not raising it at all. The line of cross-examination was clear; Brian McKee was challenged on the basis that
he was merely repeating in court what he had been told, (rumours as to the
identity of the perpetrators were said to be circulating in the locality), rather
than recounting what he had seen. That
was a matter for counsel in the discharge of his professional duty, and if that
was so then it would follow that there could be no suggestion that there had
been any defect in the appellant's representation at the trial.
[18] We are wholly
satisfied that the appellant's claim that the preparation for, and conduct of,
his trial by his legal representatives was defective and inadequate is not made
out. In this matter, we prefer the
submissions of the advocate depute to those of appellant's counsel. We observe in the first place that the exact
significance of what was said to have happened in the holding area in Barlinnie
prior to the identification parade is far from clear. It is not possible on the information before
us to establish precisely what happened.
We do not know what Brian McKee would have said in reply had the matter
been raised with him in evidence. We do
not know what the appellant would have said about what happened had he decided
to testify. Of more importance, however,
is to note that the central point in this ground of appeal is not that the
identification of the appellant by Brian McKee at the trial was tainted; rather it is said that by failing to raise
the matter with the witness, senior counsel was guilty of defective and
inadequate representation of his client's case.
[19] In these
circumstances it is appropriate to consider what senior counsel actually did in
presenting the appellant's case before the jury. From an examination of the transcript of the
evidence given in court on 9 March 2004, and in particular of counsel's
cross-examination of Brian McKee, it is clear that he embarked upon a carefully
considered and powerful attack on the witness's credibility on several related
fronts. Four particular topics can be distinguished; first of all, the witness is challenged on
his failure to provide a full account of what happened at the critical time in
the immediate aftermath of the murder (p. 72 et seq); secondly, he was
asked to provide an explanation of why he had at an earlier stage indicated
that a third party by the name of Rice was involved in the murder, but departed
from that claim when he was asked to give evidence in court (p. 95 et seq);
thirdly, he was questioned on his involvement in the drug scene, and on
the violence that is commonly associated therewith (p. 105 et seq); and fourthly, it
was suggested to him that his evidence was not accurate or credible and that he
was merely repeating rumours which he had subsequently heard (p. 112 et seq).
In these circumstances it is plain that the question of what happened
prior to the identification parade was not something which amounted to a
substantive defence. It was one
evidential issue among several which could have been explored in order to
attack the credibility of the crucial witness.
It was therefore pre-eminently a tactical issue as to whether that topic
could or should be raised with the witness;
it was certainly not a strategic matter which defence counsel might be
obliged to put forward. It is then not
difficult to see that an experienced and skilful counsel might consider that
there were in fact disadvantages in using the incident to cross-examine the
witness in the immediate context of the trial.
As the appellant admitted that he had been in contact with the deceased
and had left the public house at the same time as the deceased immediately
prior to the murder, counsel could well have taken the view that the jury might
have had little patience with questioning the procedure which had led to an
undisputed identification. In counsel's
view there might also have been disadvantages in pursuing an issue that was not
of a piece with what he clearly considered the more powerful and cohesive arguments
which he in fact deployed against the witness.
[20] As counsel for
the appellant relied on the case of Anderson v H.M.
Advocate in support of his submission on this ground, it is perhaps
appropriate to recall what was in fact decided in that case. The basis of the appeal was that an accused
person who had been convicted of an offence appealed on the ground that his
solicitor advocate had failed to cross-examine the complainer about his
previous convictions, as the accused had instructed him to do. In the penultimate paragraph in the Opinion
of the Court, which was delivered by the Lord Justice-General (Hope), it was
said:
" In
any event decisions as to whether or not to attack the character of a Crown
witness are for the advocate to take, not the accused. This is a matter on which the advocate is
entitled to, and must, exercise his own professional judgment. He cannot attack the witness's character
unless he has the information which enables him to do this. But he is not subject to his client's
direction on the matter. He is entitled
to take his decision as the trial develops without further consultation with
him, as the client's agreement to this is not required. The best that can be said of this case is
that it illustrates clearly the kind of case where the conduct of the advocate
does not provide a ground of appeal. The
criticisms which have been made of the solicitor advocate in this case fall far
short of an allegation that he deprived the appellant of his right to a fair
trial. They relate to the manner in
which the defence was conducted and to decisions which were exclusively within
the province of the advocate."
With that statement we respectfully agree. In the present case, we have no hesitation in
concluding that counsel's decision not to pursue the issue of what happened
prior to the identification parade was one entirely for his discretion, that
there are readily discernible reasons why he might have chosen not to use this
material, and that he cannot be said to have erred in the exercise of his
professional discretion or to have failed to provide adequate and proper
representation for his client. Indeed,
the allegations in the present case are significantly less powerful than the
claims put forward on behalf of the appellant in the case of Anderson.
[21] Ground 4 of
the original grounds of appeal is in the form of a devolution minute and was
said to be supplementary to the first ground (3(i)). What in essence is claimed in this ground is
that by leading and relying upon the dock identification evidence of Brian
McKee at the trial, following the circumstances which led up to the
identification parade, the Crown's actions were incompatible with the
appellant's right to a fair trial in terms of Article 6(1) of the European
Convention on Human Rights. The
circumstances surrounding the earlier incident were known to the Crown, and the
leading of that evidence in that knowledge led to an unfair trial. Reference was made to Holland v H.M.
Advocate (PC) 2005 SCCR 417, at paras. 41, 42 and 61. Counsel agreed that the case of Holland was not authority for the view that the trial could not
proceed; the question was one of fairness and a duty was therefore imposed upon
the trial judge to see that the trial was fair.
It could not possibly have been fair, counsel submitted, to allow a
witness to see the appellant prior to the parade; and if it was accepted that the
identification parade was unfair, it was not right to allow a dock
identification of the appellant. The way
in which the trial judge could have guaranteed the fairness of the trial,
counsel submitted, was to have given the jury the kind of directions which are
described in connection with the appellant's fifth ground of appeal. In effect therefore counsel's argument in
this ground of appeal, as we understood it, amounted to this, that the trial
judge failed to give adequate directions on the question of the identification
evidence. If she had given such
directions, then any question of unfairness to the appellant would have been
satisfactorily dealt with.
[22] In essence the
response of the Crown to these submissions was the same as under the previous
grounds of appeal. Senior counsel for
the appellant at the trial had elected to adopt a particular line of attack on
the evidence of Brian McKee, which did not include what may or may not have
happened at Barlinnie. In a proper exercise
of his discretion, he had chosen not to raise the matter with the witness. The material had been at all times available
to the defence; this was not a case of
failure of disclosure by the prosecutor.
There was no need for the trial judge to have given a special direction
on identification. There could be no
question of unfairness to the appellant.
[23] We are
satisfied that this argument for the appellant also is misplaced and should not
succeed. As before, the question at
issue in the case, as presented by defence counsel at the trial, was concerned
with the credibility of Brian McKee's evidence, not with his reliability. Defence counsel decided, as his most
profitable line of attack, to challenge Brian McKee not on whether he could
reliably identify the appellant as being at the locus, but rather on whether he
could be believed in his claim that the appellant had been involved in the
fight which led to the death of the deceased.
Where the appellant admitted that he had been in the public house at the
same time as the deceased, and further had left at the same time as the
deceased left, it could readily be seen as possibly disadvantageous to raise
questions about the process of an identification which the jury might think was
not disputed. We consider too that it is
significant that the Crown did not rely at the trial on the identification
evidence at the parade but merely on the dock identification, which in this
case appears to have been particularly spontaneous on the part of the
witness. Nor were we persuaded that even
if there was a residual unfairness to the appellant in the way in which trial
counsel decided not to use the incident at Barlinnie, then this was a matter
which should have been put right by the trial judge. The trial judge will have no doubt known that
an objection had been taken to the identification parade, on her perusal of the
labels and productions in the case. But
the judge would not be in a position to know whether what was said to have happened
was true, or if it was, whether it was appropriate to bring the matter to the
jury's attention. Further, as we will
explain in dealing with the next ground of appeal, there was no requirement
upon the trial judge in our view to give anything other than the standard
directions on evidence of identification in the circumstances of this
case. For these reasons, this ground of
appeal also fails.
[24] Ground 5
lodged by the appellant, which was also to be said to be supplementary to
ground 3(i), is directed at the alleged failure by the trial judge to give
particular directions about the difficulties which can lead to the
unreliability of eye-witness identification.
Counsel for the appellant argued that it was particularly important for
the judge to have given these directions, standing the absence of
identification evidence from any other witness save Brian McKee. Reference was made to Webb v H.M. Advocate 1996
JC 166; 1996 SCCR 530; and to McAvoy
v H.M. Advocate 1991 JC 16. It was evident from reading the trial judge's
charge (see, for example, pages 29, and 32 to 37), that nowhere did she
emphasise to the jury that special care needed to be taken in considering such
eye-witness evidence, or that special tests might have to be adopted in
considering eye-witness testimony. In the
light of the relevant authorities, and the duty imposed on the judge to see
that the trial was fair, this failure by the judge was fundamental and made the
conviction unsafe.
[25] Again we
consider that the argument submitted for the appellant in this respect is
simply misplaced. As the advocate depute
submitted in response, the need to provide the jury with specific directions on
the question of eye-witness identification is confined in terms of the
authorities, and also in our view in terms of common sense, to cases where it
is the reliability of the eye-witness testimony which has to be considered and
assessed. The situations which are
envisaged to need such special directions are, for example, where a witness may
only have had a fleeting glimpse of someone not seen before, or where there may
be other circumstances or conditions which might make accurate identification
difficult. In the present case, the
attack on the witness Brian McKee was throughout directed against his
credibility. There was no challenge to
the reliability of the evidence which placed the appellant at or near the scene
of the murder. As we have indicated
earlier in this Opinion, the issue in dispute in this case centred exclusively
around whether the witness Brian McKee could be believed or not in his
description of what happened. In these
circumstances, there was no need whatsoever for the trial judge to give the
jury the kind of direction described in Webb
v H.M. Advocate. As a result, this ground of appeal also
fails.
[26] Ground 6 for
the appellant is also in the form of a devolution minute, and is to the effect
that the Crown failed to disclose material information to the defence in the
shape of Brian McKee's previous convictions for assault and dishonesty. It was submitted that the way in which the
Crown ultimately presented the evidence before the jury was false and
misleading. In the course of
cross-examination (at p. 109 of the transcript), Brian McKee had stated that he
had never been involved in serious violence.
In fact he had a number of previous convictions for violence, including
one in 1982 for assault to severe injury, for which he was imprisoned. In re-examination, the advocate depute sought
to clarify and correct the witness's evidence by asking him if he had previous
convictions for assault. In response to
the advocate depute's questions, Brian McKee confirmed (at p. 116) that he had such
convictions, but maintained that the incidents happened a long time ago. However, counsel for the appellant argued that
the prosecutor had also failed to elicit information which was within his
possession that although the witness McKee had further claimed never to have
used a knife on anybody, one of the Crown witnesses, Alan Robertson, who was
the manager of the Princess Bar at the material time, and who provided an
affidavit to this effect, had some two to three years earlier caused Brian
McKee and his son to be barred from the public house because, following an
argument or scuffle in the bar, they had produced knives. The defence, it was said, were unaware of
these matters. In giving the appearance
of establishing the true position regarding Brian McKee, it was argued that the
advocate depute had left the jury with a false, misleading and unduly
favourable impression of the witness.
Further, the advocate depute, it was said, failed to ask the witness if
he had previous convictions for dishonesty and one previous conviction for an
attempt to pervert the course of justice.
Accordingly, it was submitted that, in the context of a witness whose
credibility and reliability was crucial to the prosecution case, the advocate
depute again presented the jury with a false and misleading impression of Brian
McKee's criminal history in a fashion incompatible with the appellant's right
to a fair trial in terms of Article 6(1), and this resulted in the trial being
unfair. For each and all of these
reasons counsel for the appellant asked the court to quash the conviction.
[27] In response,
the advocate depute argued that the witness had in effect accepted that he had
previous convictions. He had been barred
from the Princess Bar some two or three years earlier, but he maintained that
he had never been convicted of using a knife, and that was correct. The purpose of raising the question of the
witness's criminal history was simply to discredit him; there was no question in this case of
self-defence. There was therefore no
unfairness in the circumstances to the appellant, and no unfair trial.
[28] We agree that
this ground of appeal also is not made out.
The plain purpose of this line of evidence at the instance of the
defence was to undermine the credibility of the witness in general terms by
showing that he had been associated with violence in the past. The result of the question in
cross-examination, which elicited the response that the witness had not been
involved in serious violence, was that in re-examination the witness admitted
that he had previous convictions for assault.
That this was sufficient for defence counsel's purpose in attacking the
witness's testimony is demonstrated by the fact that, in the course of earlier submissions
outwith the presence of the jury concerning the admissibility of evidence about
the conviction for which Brian McKee was currently serving a sentence, senior
counsel for the appellant made it clear that he was not interested in the
witness's earlier record (p. 62 of the transcript of evidence). It was agreed that the witness could be asked
in general terms what offence had led to him being in prison at the time he
gave evidence, and at the time of the earlier incident at Barlinnie
Prison; this line of questioning was
specifically related to that part of the defence strategy which suggested to
the jury that the witness's circumstances as a drug dealer were liable to be
attended with violence (see p. 106). In
particular, it is instructive to note the detailed terms of the advocate
depute's question in attempting to clarify the position in re-examination (at
p. 116):
"I think you said to Mr. Findlay at
one point that you had never been involved in serious violence, but do you have
in the past between 1969 and 1982, you have previous convictions for assault."
To this general proposition the witness assented. The advocate depute then repeated his statement
to the witness to the effect that he did have convictions for violence in the
past. It is clear, in our opinion, that
the advocate depute did in essence clarify that the witness had previous
convictions, against the suggestion that he had earlier claimed that he had not
previously been involved in serious violence.
There was no need to refer to any other convictions, and defence counsel
did not want details of other offences.
This line of re-examination, therefore, only related to the restricted
line of defence taken by counsel at the trial, and produced a response from the
witness which plainly satisfied the purpose which prompted defence counsel to
raise the issue in the first place.
[29] In these
circumstances we reject all of the grounds of appeal which have been raised by
the appellant and accordingly the present appeal fails.
