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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Bovill v. Her Majesty's Advocate [2003] ScotHC 6 (11 February 2003) URL: http://www.bailii.org/scot/cases/ScotHC/2003/6.html Cite as: [2003] ScotHC 6

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Bovill v. Her Majesty's Advocate [2003] ScotHC 6 (11 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Osborne	Appeal No: C396/01 OPINION OF THE COURT delivered by LORD KIRKWOOD in APPEAL AGAINST CONVICTION by ROBERT ALEXANDER BOVILL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Watson, Shead; Balfour & Manson

Respondent: Turnbull, QC, AD; Crown Agent

11 February 2003

1. In April 2001 the appellant, Robert Bovill, was convicted in the High Court at Glasgow, after a trial which had lasted for seventeen days, of two charges, one of murder and the other of attempting to pervert the course of justice. Charge 1, which was the murder charge, had originally been a charge of conspiracy in which the appellant and the co-accused, Mrs. Elizabeth Conway, had been charged with conspiring together to assault and murder the deceased, who was Mrs. Conway's common law husband, and claim the proceeds of a personal accident insurance policy which had been taken out on his life. Various actings were alleged on the part of one or other or both of the appellant and the co-accused in furtherance of that conspiracy. In particular, sub-head (c) of charge 1 charged both the appellant and the co-accused with the actual murder of the deceased. Charge 2 was a charge of attempting to pervert the course of justice. It narrated inter alia that between 21 February and 23 April 1999 the appellant, being conscious of his guilt of the crime libelled in charge 1, and with intent to conceal its commission from the criminal authorities and with intent to frustrate the course of justice, had given certain false information and made false allegations to the police, and had attempted to conceal his guilt of the murder and attempted to pervert the course of justice. The alleged false information and false allegations were set out in sub-heads (b), (c), (d), (e) and (f) of the charge. Sub-heads (c), (d) and (e) related to three false alibis which the appellant had given to the police.
2. At the end of the Crown case, counsel for the appellant made a submission of no case to answer in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 in relation to charge 1 in respect of the conspiracy charge and sub-heads (c), (d) and (e) thereof, which were the only sub-heads which charged stand-alone criminal offences. The trial judge sustained the submission in respect of the conspiracy charge and sub-heads (d) and (e) of the charge and acquitted the appellant of those parts of the charge, but he rejected the submission in respect of sub-head (c). A submission of no case to answer was also made on behalf of the co-accused and, following that submission and in light of a concession made by the advocate depute, the co-accused was acquitted of the whole of charge 1. The advocate depute then sought leave to amend charge 1 as against the appellant and the trial judge allowed the amendment to be made. In the event, the appellant faced, and was convicted of, charge 1, which was in the following terms:

"On 21 February 1999 in the flat above the Black Bull Public House, 313 Main Street, Bonhill, Dunbartonshire you did assault John McLean Conway as he lay in his bed and did strike him repeatedly on the head, arms and body with a fire extinguisher whereby he died from those injuries there and you did murder him".

The appellant was also convicted of charge 2. On the first charge he was sentenced to life imprisonment and on the second charge he was sentenced to two years imprisonment. The appeal is taken only against his conviction on charge 1.

3. In his report the trial judge began by setting out evidence which the jury must essentially have accepted and about which there was no dispute. The deceased was the estranged common law husband of the former co-accused. The appellant was the nephew of the former co-accused. For some time prior to his death on 21 February 1999, the deceased and the former co-accused had been living separately. The former co-accused was living with their daughter at the former matrimonial home, 44 Croft Street, Bonhill, Alexandria. The deceased was living in a flat above the premises at the Black Bull Public House, 313 Main Street, Bonhill, which was very close to 44 Croft Street. The deceased and the former co-accused had run the business at the Black Bull Public House for some years, and continued to do so after they decided to live separately. The licence and the title deeds of the property were in the name of the former co-accused as the deceased had previously been declared bankrupt. There was no dispute that on the evening of 20 February and early morning of 21 February 1999 the deceased had been with a number of customers in the Black Bull. The last of these customers left at the end of what was described as a "lock-in" at about 5.30 a.m. on 21 February. The deceased was seen at that time. That was the last time that anyone claimed to have seen him alive. At about 11.00 a.m. on 21 February he was found dead in his bed in the flat above the public house. He was found there by a neighbour who had been summoned by the former co-accused. She had gone to the public house as usual at about 10.00 a.m. to clear up from the night before, and had found that the front door was not secured, as it should have been, and that inside the place was in some disarray. Because she was separated from the deceased, she asked the neighbour, who was a friend of his, to go and wake him. The police and an ambulance were summoned. So was a police surgeon, who examined the deceased and pronounced life extinct. A forensic pathologist was also summoned to examine the locus while the body was still in situ. The pathologist was unable to estimate the precise time of death, but was of the view that it was before 9.00 a.m. The body was thereafter removed to the City Mortuary, Glasgow for post mortem examination. It was concluded that the deceased had died of blunt force injuries to the left side of his scalp and forehead causing severe fractures of his skull and facial bones and damage to the brain. The pathologists' view was that it would have required a very heavy weapon and/or considerable force to have caused these skull fractures. They could have been caused by a fire extinguisher which was not found until several days after the deceased's death. It was found at the bottom of the back stairs of his flat and, when examined, it had blood on it.
4. The trial judge went on to observe that at the trial it was not disputed that the deceased had been murdered. The central issue in the case was whether it had been proved beyond reasonable doubt that it was the appellant who had murdered him. The trial judge then set out in his report the evidence which was relied on by the Crown. The appellant and the deceased were not on good terms. The appellant was a known drug addict and thief. When he had stayed with the deceased and the former co-accused at previous licensed premises they ran in Aberfoyle, he had been put out because he had stolen items belonging to the deceased and the former co-accused. About four or five months before the deceased's death, he had come to the deceased's flat together with other members of the former co-accused's family and attempted to evict the deceased both from the public house and from his flat. The deceased had to hand over all his keys. In fact, however, the former co-accused soon relented and gave the keys back to the deceased. Thereafter, and in particular in the period shortly before the deceased's death, the appellant was frequently in the company of the former co-accused. The deceased did not like this and made his views plain. It was also well known that the relationship between the deceased and the former co-accused was poor, and that there were frequent arguments between them. There was evidence on all these matters from a number of witnesses. In a statement to the police the appellant said that when he and the others had gone to the deceased's flat to try to evict him, he (the appellant) had picked up a hammer and stuck it in the waistband of his trousers in case, as he put it, there was any bother. He said he had been the person who demanded the keys for the public house and the flat, and at that time he told the deceased that if he ever touched his aunt, the former co-accused, he (the appellant) would "do" him. There was no evidence, however, of any physical abuse during this period. On the afternoon of 20 February 1999 the appellant and the former co-accused had been together when they met one Joseph Quinn. About a week earlier Mr. Quinn had had an exchange with the deceased about an apparent debt of £10 or £20 which Mr. Quinn was said to have owed the deceased. When Mr. Quinn met the appellant and the former co-accused, he referred to this exchange and made a derogatory remark about the deceased. The appellant then gestured with a clenched fist and said to Mr. Quinn: "I'd give him it." Then, about two days after the murder, Mr. Quinn met the appellant, apparently by chance, and the appellant told him not to tell anyone that he had seen the appellant and the former co-accused on the afternoon of 20 February. After the deceased's death the appellant was interviewed on a number of occasions by the police. Initially the appellant gave three different false alibis. These were the subject of sub-heads (c), (d) and (e) of Charge 2. Then on 31 March 1999 the appellant gave a statement to the police which he confirmed in a tape recorded interview the following day. In the interview he stated that he had not been involved in any way in the murder of the deceased, but that he had been involved in the break-in at the Black Bull Public House that same morning. He said that some weeks earlier he had been approached by one Henry Jennings and had agreed to do a "turn" for him. He had met Mr. Jennings again a few days before the murder and arranged to meet him again at about 5.00 a.m. on Sunday 21 February. It was after that that he learned that it was the Black Bull that was to be the "turn". He said that when they got to the Black Bull, Mr. Jennings pulled a balaclava he was wearing down over his face and walked towards the back of the public house. He disappeared from sight. He was away for about 10-15 minutes. The next thing that the appellant said he heard was footsteps from around the other side of the public house. He found Mr. Jennings standing beside a grille that gives access to the public house. The grille was near the entrance door which the deceased normally used to gain entry to his flat. By this time the appellant said that Mr. Jennings' balaclava was rolled up again and Mr. Jennings was out of breath and sweating. Mr. Jennings then handed the appellant a set of keys and said that these were the keys to the locks on the front door of the public house. He told the appellant not to worry about "him up the stair". The appellant said that he asked Mr. Jennings what he meant because he knew that the deceased lived upstairs. He said that Mr. Jennings replied: "He's deid". The appellant said that he was shocked by this, but Mr. Jennings threatened that he would get his throat cut if he talked to anyone, and also threatened the appellant's girl-friend and their young child and even the former co-accused. He said that Mr. Jennings told him to "go and get your prize" and then departed the scene. The appellant used the keys that Mr. Jennings had given him and entered the public house. Once he got in the alarm sounded and he pulled the alarm box off the wall. (Neighbours had heard what they took to be the alarm of the Black Bull going off at about 7.00 a.m.). He knocked some glasses over accidentally and they smashed on the floor. The trial judge explained that what the appellant said as narrated in the previous three sentences - not the one in parenthesis - had been corroborated by witnesses who went to the public house later that morning. The appellant said that he opened a cupboard and saw lots of money bags in front of him. He grabbed a couple of the bags and bolted. He went on to explain that Mr. Jennings had not asked him for the money. He concluded that he had been set up by Mr. Jennings. On 6 April 1999 the appellant admitted that he had telephoned the former co-accused just before 8.00 a.m. on 21 February. He explained that he did this just to see if she was all right. He said that he did not give her any information at that time about what had happened earlier that morning. Later in the morning, at about 11.00 a.m., he tried to contact the former co-accused, again by telephone. He made a call to her house but by that time she had left for the Black Bull. So he telephoned the Black Bull. The call was answered by the deceased's friend who had found him dead and the appellant just hung up. He telephoned again a few seconds later and asked to speak to the former co-accused. He said that it was Rab calling and that, when the telephone was passed over to the co-accused, he could hear her weeping and he just put the telephone down again. He explained that he wanted to see if she was all right and in that way to verify whether the deceased was dead. There was evidence from witnesses that two calls to the Black Bull from a person calling himself Rab Black were made at or about this time. On 23 April 1999 the appellant told the police that when he telephoned the former co-accused at about 8.00 a.m. on 21 February he did not intentionally telephone her. He was trying to telephone for a taxi but dialled the wrong number and got the former co-accused instead. However, when faced up with the explanation he had given on 6 April, he agreed that the reason he telephoned her was to see if she was all right, because he thought that the deceased had been killed. He also said that that was the reason for telephoning later in the morning, to see if the deceased was in fact dead and if the co-accused was all right. Up to this time the appellant had indicated that he had spent the evening of 20 February in places other than the former co-accused's house. However, in this statement he admitted for the first time that at about 8.00 p.m. on that evening he had been picked up at his own house by the former co-accused and taken back to her house. She had then gone out to meet some friends and he had remained in her house with her young daughter and her two nieces, who were about the same age. Apart from a short trip back to his own house in the former co-accused's car at about 11.00 p.m., he had been at her house until about 3.45 a.m., when he said he left in order to rendezvous with Mr. Jennings.
5. The trial judge tells us that the Crown relied on these circumstances as background circumstances and, against those, asked the jury to consider the evidence as to what the appellant had said to some of his friends in the days after the murder, and the circumstances in which he had said them. There was evidence that he had said various things to his friends, including taking steps to sort out an alibi as alleged in Charge 2(b). But the most important evidence in this chapter came from the witness Roy Hepburn. He said that he had had a number of conversations with the appellant. On one occasion he had asked him if he had murdered the deceased and the appellant had answered "Yes". Mr. Hepburn also said that the appellant had explained that he obtained access to the deceased's flat with keys, and that the deceased had been killed because he had battered the former co-accused. The trial judge directed the jury that if they did not accept that evidence given by Mr. Hepburn, or did not accept that it amounted to a confession of murder, then they could not convict the appellant on charge 1.
6. The appellant did not give evidence, but the various statements which he had made were before the jury. Prior to the trial he had lodged a special defence incriminating Henry Jennings. Two witnesses were led by the defence, but their evidence related solely to the special defence which was rejected by the jury.
7. The trial judge informs us that there was no forensic evidence implicating the appellant in the murder. There was also no evidence as to how the appellant gained entry to the deceased's flat. There was general evidence that the deceased was security conscious and always locked the main entrance to his flat, which was at the side of the Black Bull. However, on the morning of 21 February it was found that this was not locked. There was another entrance to the flat at the back of the Black Bull, but the evidence was that that usually remained locked, and after the murder it was found to be locked with the key on the inside. The evidence was that no one other than the deceased had keys to the side entrance door (there was in fact another set of keys for that door which were kept in the Black Bull and they were found to be there after the murder). The deceased's keys for the side door have never been found. The appellant admitted that he had keys to gain entrance to the public house by the front door and he said that when he left the premises, he left the keys just inside the front door. There was a gap in the evidence as to how the appellant gained entry to the deceased's flat, and how he did so remained a matter of speculation.
8. The appellant has appealed against conviction on the following two grounds:

"1. There being no sufficient evidence in law, in particular corroboration of an alleged confession by the accused, to entitle a jury to convict the appellant, the trial judge ought not to have repelled a submission of no case to answer made in terms of the Criminal Procedure (Scotland) Act 1995, section 97.

2. Esto, there was corroboration of the alleged confession by the appellant the learned trial judge failed to direct the jury where such corroboration was to be found and in so failing misdirected the jury."

9. Senior counsel for the appellant, in support of the first ground of appeal, accepted that there had been evidence of an admission which the appellant had made to Mr. Hepburn and which the jury would have been entitled to treat as an admission of murder. However, the Crown case was a circumstantial one, and it was submitted that there was no other evidence which, taken along with the alleged admission, was capable of providing the necessary corroboration of that admission. All the background circumstances relied on by the Crown at the trial had emanated either from the appellant or from statements which had been made by the co-accused, Mrs. Conway. She had not given evidence, and the statements which she had made, all of which had been outwith the presence of the appellant, had not been competent evidence against him, and the jury had been given a direction to that effect. The reference to disagreements, and the increase in tension, between Mrs. Conway and the deceased had come from Mrs. Conway. The evidence that the appellant and Mrs. Conway had spent much of the afternoon before the murder together had come from the appellant. While there was evidence about the appellant and Mrs. Conway having met Mr. Quinn, the evidence that the appellant had said "I'd give him it" had come from the appellant. The evidence as to what had happened at the Black Bull, and the circumstances in which the appellant had entered the building, came from a statement which the appellant had given to the police. This had been an exculpatory statement and had not contributed to the Crown case. The evidence that the appellant had telephoned Mrs. Conway, first at her house and latterly at the public house, had come from statements given by the appellant. The evidence of sarcastic telephone calls between the deceased and Mrs. Conway had come from statements which she had made. It was submitted that the advocate depute, in his speech to the jury, had not referred to any relevant background circumstances which were not attributable either to the appellant or to Mrs. Conway, in circumstances in which what she had said was not competent evidence against the appellant. The advocate depute had gone on to tell the jury that the Crown was also relying on lies which the appellant had allegedly told to the police and which were in part the subject of charge 2. In particular, it was alleged that he had given three false alibis to the police. However, in Wilkie v. H.M. Advocate 1938 J.C. 128 it was held that the doctrine of corroboration by false contradiction had no place in the criminal law, and the Lord Justice General (Normand) had observed that a falsehood by an accused person could not be regarded as a suspicious circumstance. While it was accepted that the jury would have been entitled to conclude, on the evidence, that the appellant had been in the public house on the morning of the murder, the fact that he had keys for the front door of the public house would not have enabled him to obtain entry to the deceased's flat, which had separate entrances. It was clear from the report by the trial judge that the Crown had led no evidence as to how the appellant was supposed to have gained access to the deceased's flat. It was not suggested by the Crown that the admission which the appellant had allegedly made to Mr. Hepburn was a self-corroborating confession. In the circumstances it was submitted that there had been no independent evidence of the background circumstances on which the Crown had sought to found, along with the admission made by the appellant to Mr. Hepburn, to make their circumstantial case against him. It followed that the trial judge should have sustained the no case to answer submission which was made to him in relation to charge 1.
10. Turning to the second ground of appeal, counsel for the appellant informed us that he took issue with very little of the judge's charge to the jury. There had been directions in relation to circumstantial evidence, and the judge had correctly directed the jury that what the appellant had said in his later police interview, which included his statement that he had been in the public house on the morning of the murder, and the circumstances in which he had been there, was entirely exculpatory of murder. It was important to note that the locus of the murder was different from the locus of the break-in. The only criticism counsel made of the charge to the jury was that, on the assumption that there was a sufficiency of circumstantial evidence, including the appellant's alleged confession, the trial judge did not tell the jury where they could find the evidence of relevant background circumstances which, taken along with the confession, could constitute a sufficiency of evidence against the appellant on charge 1. All that the trial judge had done was to tell the jury that the advocate depute had set out the background circumstances on which the Crown relied, and that he was not going to rehearse them. The jury were not told what evidence they were entitled to accept as constituting circumstantial evidence. If there was sufficient circumstantial evidence to support the appellant's alleged confession, the jury should have been directed where it was to be found, particularly as the trial lasted a total of seventeen days. In the circumstances there had been a miscarriage of justice and the conviction should be quashed.
11. In reply, the advocate depute submitted, in relation to the first ground of appeal, that the trial judge had been right to reject the appellant's motion that there was no case to answer in relation to charge 1. In his report the trial judge had outlined the evidence relied on by the Crown. It was possible to identify a number of independent adminicles of evidence available to the Crown in addition to the evidence of the appellant's confession to Mr. Hepburn. The advocate depute listed these adminicles as follows:

1. Evidence given by a number of witnesses that the appellant and the deceased

were not on good terms.

2. The incident some months earlier relating to the attempted eviction of the

deceased was an example of them not being on good terms.

3. Evidence that the appellant was frequently in the company of Mrs. Conway.

4. Evidence that the deceased did not like that, and had made his view plain.

5. Evidence that the relationship between the deceased and Mrs. Conway was

poor, that they were estranged and that there were frequent arguments between them.

6. Evidence that at the time of the eviction incident the appellant had told the

deceased that, if he ever touched his wife, he (the appellant) would "do" him.

7. Evidence from Mr. Quinn that the afternoon before the killing the appellant

had been in the company of Mrs. Conway.

8. At that time the appellant, when speaking to Mr. Quinn, had gestured with a

clenched fist and said to Mr. Quinn about the deceased "I'd give him it".

9. Two days after the murder the appellant had told Mr. Quinn not to tell anyone

that he had seen the appellant and Mrs. Conway on the afternoon before the murder, and that was suspicious conduct on the part of the appellant.

10. The admitted fact that the appellant had given three false alibis to the police

(before he had admitted that he had been in the Black Bull on the morning of the murder).

11. His admitted presence at the public house not long before the murder took

place.

12. It was clear that, one of the doors to the deceased's flat having been found to

be open after the murder, but not having been forced, the killer must have had access to the keys, and it was more likely that that was a person who was associated with the premises, the public house and the flat being in the same building.

13. The appellant had said that, when he was in the public house, the alarm had

sounded and that he had pulled the alarm box off the wall, and there was independent evidence that the public house alarm had gone off at about 7 a.m. which was approximately when the appellant said he had been there.

14. The appellant had said that he had telephoned Mrs. Conway just before 8 a.m.

on the morning of the murder, and that later in the morning he had telephoned her at the public house, giving his name as Rab Black, but had put the phone down on each occasion, and there was evidence from witnesses that two telephone calls from a person giving his name as Rab, and asking for Mrs. Conway, were made to the public house at about that time.

12. The advocate depute submitted that the evidence of the appellant's admission to Mr. Hepburn that he had murdered the deceased, taken along with these background circumstances, constituted circumstantial evidence which entitled the jury to convict. While the trial judge in his report had set out the evidence on the basis of which he had rejected the no case to answer submission, it was accepted that he had identified a narrower band of evidence and had not founded on all the adminicles which the advocate depute had referred to in the course of the appeal hearing. However, the court was entitled to take into account all the evidence which was before the jury, whether or not there were adminicles which had not been referred to by the trial judge in his report. In the circumstances the trial judge had been right to repel the no case to answer submission.
13. Turning to the second ground of appeal, the advocate depute stated that at the trial the jury had first been invited by the Crown to consider the competing suggestions that the killer had been Jennings or the appellant. While that may not have been the most appropriate course, the advocate depute at the trial had then gone on to address the issue as to whether the jury should be satisfied beyond reasonable doubt that the deceased had been murdered by the appellant. In his speech to the jury, he had founded on the appellant's admission to Mr. Hepburn taken along with a number of background circumstances. While he had not referred the jury to all the adminicles on which the advocate depute had founded in the course of the appeal, he had referred to quite a number of them. In particular, he had reminded the jury of (a) the evidence that the appellant and the deceased did not get on; (b) the threat uttered by the appellant at the time of the eviction incident; (c) the evidence that the appellant and Mrs. Conway spent time together, particularly on the afternoon and the night before the murder; (d) the evidence that the appellant had encouraged Mr. Quinn to a confrontation with the deceased; (e) the evidence that the appellant, on his own admission, was in the public house on the morning of the murder and had said that Jennings had keys for the front door; (f) the evidence that the appellant had telephoned Mrs. Conway to say that he had broken into the pub and that her husband was likely to be dead (although no reference was made to the two later telephone calls to the public house); and (g) the repeated lies which the appellant had told the police about where he had been at the time of the murder.
14. The advocate depute further submitted that the fact that the appellant had made repeated attempts to mislead the police by giving false accounts of his movements at the time of the murder, and also attempting to set up an alibi, were incriminating factors which the jury were entitled to take into account as part of the Crown's circumstantial case against the appellant. While the case of Wilkie v. H.M. Advocate, supra, had held that corroboration by false denial was not part of the criminal law of Scotland, modern practice was to the effect that statements by accused persons were viewed in a rather different light. In Wilkie, not even the commission of the crime had been corroborated. It was submitted that there must be some evidential value if it was established that what an accused had told the police was untrue, even if it could not by itself constitute corroboration of a confession. For example, in cases of reset, the fact that an accused knew that the goods had been stolen was often demonstrated by the fact that he had given an obviously false story (Hume, I, 114). The advocate depute also referred to Winter v. Heywood 1995 J.C. 60. In that case the appellant had been charged with driving a car while disqualified, the car having been involved in an accident. One witness had identified him as the driver, and there was evidence that he was the registered keeper of the car. That fact was not sufficient to corroborate the evidence of the eye witness, but when the appellant was required by the police to give information as to the identity of the driver at the time of the accident in terms of section 172 of the Road Traffic Act 1988, he had said that he had been in his house at the time and that the car had been driven by a person whom he named. That named person gave evidence that he had never driven the appellant's car. It was held that the appellant's denial had not been simply a false denial, but that he had given false information from which it might be inferred that he was deliberately seeking to avoid detection as the driver of the car, and that that was sufficient, taken along with the fact that he was the registered keeper, to corroborate the eye-witness identification. That principle should be applied in the present case where the appellant had given the police four different accounts of his whereabouts at the time of the murder. That amounted, it was submitted, to suspicious behaviour which the jury were entitled to take into account, although the advocate depute accepted that, if the court took the view that the observations made by the Lord Justice General in Wilkie were of general application, then that would be fatal to his submission in relation to this particular adminicle of evidence. However, the advocate depute submitted that, even in that event, he was still entitled to found on the things that the appellant had said to Mr. Quinn, on two separate occasions, and the fact that he had told Mr. Hepburn that he was trying to set up an alibi, as amounting to incriminating conduct (Campbell and Steele v. H.M. Advocate 1998 S.C.C.R. 214 per the Lord Justice Clerk (Cullen) at page 232D-F). Reference was also made to Davidson v. Brown 1990 S.C.C.R. 304 and Davidson v. H.M. Advocate 1990 S.C.C.R. 699 at page 701F-G. It was submitted by the advocate depute that the evidence established very suspicious behaviour on the part of the appellant, in addition to the admission which he had made to Mr. Hepburn, and that the circumstantial case against the appellant was a strong one.
15. The advocate depute submitted that the trial advocate depute in his speech to the jury had set out the background circumstances on which the Crown relied, in addition to the appellant's admission to Mr. Hepburn. The trial judge had told the jury that the Crown case was a circumstantial one and that the background circumstances relied on by the Crown had been set out by the advocate depute in his speech, and had stated that he was not going to rehearse them as they would be fresh in the minds of the jury. That had been a perfectly proper approach, and the trial judge had been under no obligation simply to repeat to the jury what the advocate depute had said in his speech. The factors supporting the appellant's confession had been placed before the jury by the advocate depute and referred to by the trial judge, and there had been no misdirection.
16. However, in the course of his submissions to this court the advocate depute conceded that the only background circumstances which the jury were entitled to take into account in support of the Crown's circumstantial case against the appellant were those that had been referred to by the advocate depute in his speech to the jury. It was accepted that not all of the adminicles which the advocate depute had sought to found on before us in relation to the trial judge's decision to reject the no case to answer submission had been mentioned by the advocate depute in his speech to the jury; but the advocate depute submitted to us that the circumstances on which the Crown had founded in addressing the jury were, taken along with the appellant's confession, sufficient to entitle the jury to convict. However, if the circumstances which the advocate depute had referred to in his speech at the trial were not sufficient in law to provide the necessary corroboration of the appellant's admission, then the Crown conceded that the conviction could not stand. While in some cases a jury might be entitled to proceed on the basis of evidence which had not been founded on in the Crown speech, the particular circumstances of this case were such that the advocate depute considered it right to make the concession which he did. However, as the trial judge had been right to reject the no case to answer submission, there had been no misdirection and the circumstantial evidence presented to the jury had been sufficient in law to justify the conviction, the appeal should be refused.

Decision

17. The first issue which we have to determine is whether the trial judge was right to reject the no case to answer submission. In the first place, it is clear that the jury would have been entitled to hold that what the appellant had said in reply to the question put to him by Mr. Hepburn was a clear and unambiguous admission that he had murdered the deceased. Mr. Hepburn had also said that the appellant had explained how he had obtained access to the deceased's flat and had given his motive for the killing. The question then arose as to whether, putting the Crown case at its highest at that stage, other facts and circumstances led in evidence by the Crown were capable of supporting or confirming the admission which the appellant had made. There is no doubt that a number of matters on which the Crown sought to rely in the course of the hearing before us came solely from the appellant himself, and could not be used to confirm the admission which he had made, and of course what Mrs. Conway had said in statements outwith the presence of the appellant was not competent evidence against him. However, while the appellant told the police that he had been in the public house on the morning of the murder, his statement to that effect was supported by independent evidence. Thus, he said that once he got into the public house the alarm had sounded and he had pulled the alarm box off the wall, and that he had knocked some glasses over accidentally and they had smashed on the floor. These matters had been spoken to by witnesses who had gone to the public house later that morning. The appellant's statement therefore showed special knowledge. Further, neighbours had heard what they took to be the alarm at the Black Bull going off at about 7 a.m., which was approximately when the appellant said that he was there. The Crown pathologist had given evidence that, while he was unable to estimate the precise time of death, he was of the opinion that the deceased, whose body had been found at about 11 a.m., had died before 9 a.m. In our opinion, the evidence that the appellant was actually in the public house at around the time when the murder must have been committed was strong evidence against him which would in itself be capable of providing the necessary support or confirmation of the admission which he had made to Mr. Hepburn. There was, of course, other evidence founded on by the Crown, including evidence (1) that the appellant and the deceased were not on good terms and that the appellant, together with other members of Mrs. Conway's family, had attempted to evict the deceased from the public house and his flat; (2) that on the afternoon before the killing the appellant, when accompanied by Mrs. Conway and speaking to Mr. Quinn, had gestured with his clenched fist and said about the deceased "I'd give him it" and (3) that two days after the murder the appellant had told Mr. Quinn not to tell anyone that he had seen him and Mrs. Conway on the afternoon before the murder. In the circumstances we are of the opinion that the trial judge was right to reject the no case to answer submission and that there is no merit in the first ground of appeal.
18. The second ground of appeal is that the trial judge misdirected the jury in respect that, on the basis that there was corroboration of the alleged confession, he failed to direct the jury where such corroboration was to be found. There is no challenge of the directions which the trial judge did give to the jury: what is founded on is what he is said to have omitted from his charge.
19. In the course of his charge the trial judge made the following observations:

"Now, the advocate depute said that his case against the accused was a circumstantial one. No one saw who killed John Conway and so the Crown have to rely on circumstantial evidence and in his speech to you yesterday the advocate depute set out first the evidence in relation to what he described as the background facts or circumstances. I am not going to rehearse them all again, they will be fresh in your minds and both counsel commented on them in their speeches to you yesterday ... Now, against these background circumstances, the advocate depute asked you to consider the various things that the accused is said to have said to his pals, the context in which they were said and in particular Roy Hepburn's evidence that he asked the accused did he murder him, to which the accused replied Yes and the advocate depute reminded you also of Roy Hepburn's evidence that the accused had also explained how he had got into the flat and what the motive for the killing was."

20. In his report the trial judge told us that he made a deliberate decision not to direct the jury where the circumstantial evidence founded on by the Crown as corroboration of the admission to Mr. Hepburn was to be found. This was because the advocate depute in his speech to the jury had specified the circumstances on which he relied and given reasons why the jury should be satisfied of the guilt of the appellant. The trial judge took the view that the evidence had been fully canvassed in counsels' speeches and that the jury were well apprised of the issues in the case and the evidence on which each side relied. We have been provided with transcripts of the two speeches to the jury. The advocate depute invited the jury to reject the appellant's account of the involvement of Mr. Jennings in the murder. He then turned to the evidence against the appellant and, in particular, founded on the appellant's alleged admission to Mr. Hepburn as being "perhaps the most unequivocal admission to murder that there can be", as well as "the appellant's admitted presence at the scene of the murder at around the time when the murder was committed", and how the appellant had explained to Mr. Hepburn the way in which access to the premises was obtained and what the motive for the killing was. The advocate depute also sought to rely on what he described as background facts, which included the evidence (1) that the appellant and the deceased did not get on and (2) that the afternoon before the murder the appellant had encouraged Mr. Quinn to a confrontation with the deceased.
21. In our opinion, when the Crown was founding on an alleged admission of guilt by the appellant supported or confirmed by a number of background facts and circumstances, and the advocate depute set out in his speech the evidence on which the Crown sought to rely, there was no obligation on the trial judge in his charge to the jury then to repeat or rehearse what the advocate depute had said. As we have already narrated, the advocate depute, in his submissions to us in the course of the appeal, accepted that the jury would have been entitled to proceed only on the basis of the evidence on which the advocate depute had founded in his speech to the jury. In our opinion, on the basis of that evidence, which included the alleged admission to Mr. Hepburn and the evidence of the appellant's presence in the Black Bull on the morning of the murder, the jury were entitled to convict the appellant. We have accordingly reached the conclusion that there is no merit in the second ground of appeal.
22. There is, however, one other matter with which we should deal. It was submitted to us on behalf of the appellant that the Crown had not, in relation to charge 1, been entitled to rely on the fact that the appellant had put forward three false alibis before giving his account of Mr. Jenning's involvement in the murder. As the police had checked each of the alibis and found it to be untrue, the appellant had admitted that it was false and had then put forward another alibi. It was submitted to us by counsel for the appellant that a false denial, or false denials, could not be used to provide corroboration of the appellant's alleged admission of guilt.
23. In Wilkie v. H.M. Advocate 1938 J.C. 128 it was held that the doctrine of corroboration by contradiction had no application in the criminal law. The Lord Justice General (Normand) made the following observations (at page 132):

"It would be a great misfortune if we were to give any support to the idea that corroboration by false contradiction has any place in our criminal law. There are many reasons, unfortunately, which induce people to conceal the truth or to tell falsehoods, and it cannot be presumed that the sole reason why an accused person has failed to tell the truth, or has told a lie, is a desire to conceal his guilt of the crime with which he is charged ...

The Solicitor-General suggested that, although a falsehood by an accused person might have no value as corroboration, the jury might nevertheless take account of it as a suspicious circumstance. This is a contention which I have no difficulty in negativing. To accept it would be to permit an innovation without logical basis and disastrous to the fair administration of criminal justice".

24. We accept that the fact that the appellant told lies to the police could not corroborate his alleged admission that he had murdered the deceased. In Wilkie, the Lord Justice General observed that it could not be presumed that the sole reason why an accused person has failed to tell the truth, or has told a lie, is a desire to conceal his guilt. Indeed, an accused person may tell lies to the police even though he is innocent of the charge against him. Thus, a false alibi may be put forward in an attempt to strengthen a true defence or to protect another person or to save himself embarrassment. However, when the Crown case against an accused is based on an admission of guilt taken along with circumstantial evidence, it is not necessary that each adminicle of the circumstantial evidence should itself incriminate the accused or that it should be unequivocally referable to the essential element of the charge which is to be established. What matters is whether the circumstantial evidence taken as a whole is capable of providing support or confirmation in regard to the factum probandum to which the confession relates (c.f. Fox v. H.M. Advocate 1998 J.C. 94 per the Lord Justice Clerk (Cullen) at page 109). Further, the nature of circumstantial evidence is such that it may be open to more than one interpretation and it is precisely the role of the jury to decide which interpretation to adopt (Fox v. H.M. Advocate, supra, per the Lord Justice General (Rodger) at pp. 100-101; Megrahi v. H.M. Advocate 2002 JC 99 per the Lord Justice General (Cullen) at paras. [32]-[36].
25. In the present case the Crown's reliance on the evidence relating to the false alibis does not involve corroboration by false contradiction, a concept that has long been discredited in the field of criminal law. The first of the false alibis was to the effect that at the time of the murder he had stayed overnight in the company of Scott Doherty, and there was evidence that on 22 February 1999 the appellant had spoken to two witnesses, Irene McKell and Roy Hepburn, seeking to establish from them the whereabouts of Scott Doherty, and that he had said that he required to find him in order to sort out an alibi for himself for the time of the murder. He later admitted to the police that the information which he had given them about the first alibi was untrue. He then put forward two other alibis and subsequently admitted that each of them was false. His final statement to the police was that he had been at the Black Bull with Mr. Jennings on the morning of the murder. In our opinion, the evidence about the three false alibis went beyond being simply false denials. Not only had he repeatedly given the police false information as to his whereabouts at the time of the murder, and later admitted that the information was false, but he had begun to take active steps to set up the first of his false alibis. In our view, this line of evidence, in the context of a case founded on circumstantial evidence, cannot be said to be incapable of having any evidential value. The evidence of the three false alibis put forward by the appellant was before the jury, and charge 2 alleged that these alibis had been put forward by the appellant in an attempt to conceal his guilt of the murder, and that he had attempted to pervert the course of justice. In our opinion, in the particular circumstances of this case the jury were entitled to have regard to the chapter of evidence relating to the three false alibis as one of the adminicles of evidence in relation to charge 1. On this approach, we think that it is unnecessary for us to rely on the ratio of Winter v. Heywood 1995 J.C. 60 about which an Extra Division recently expressed misgivings (Brown v. H.M. Advocate 2003 S.L.T. 2).
26. No submission was made to us that there had been a misdirection in respect that the trial judge should have directed the jury, in relation to charge 1, that they had to disregard the evidence that the appellant had put forward three false alibis, and our view is that, in the particular circumstances of this case, that would not have been an appropriate direction.
27. The appeal against conviction is therefore refused.