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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Gray v. Her Majesty's Advocate [2005] ScotHC HCJAC_104 (08 February 2006)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_104.html
Cite as: [2005] ScotHC HCJAC_104, [2005] HCJAC 104

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice Clerk

Lord Penrose

Lady Cosgrove

 

 

 

 

 

 

 

 

 

 

 

[2005HCJAC104]

Appeal No: XC305/03

 

OPINION OF THE COURT

 

delivered by THE LORD JUSTICE CLERK

 

in

 

THE REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

 

in the case

 

WILLIAM GRAY

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

_______

 

For the Appellant: Jackson, QC, Shead;

For the Crown: Mitchell, AD; Crown Agent

 

8 February 2006

 

Introduction

[1] On 2 October 1992, at Glasgow High Court, the appellant was convicted of a charge of murder. On 28 January 1994 this court refused the appellant's appeal against conviction. In February 2003 the Scottish Criminal Cases Review Commission referred the appellant's case to this court on three matters relating to certain irregularities that were alleged to have occurred at the trial. When the referral was lodged, the appellant took the opportunity to lodge a Note of Appeal based on new evidence.

[2] On 23 December 2004 the court, having considered the matters referred to it by the Commission, refused to disturb the conviction (cf. Gray and O'Rourke v HM Adv., 2005 SCCR 106). We have now heard the appeal so far as it is based on the Note of Appeal.

 

The trial

[3] The appellant was tried with five others on an indictment containing 31 charges. Among the co-accused were James O'Rourke and Stephen Donohoe. O'Rourke was found guilty of the murder charge, Donohoe was convicted of culpable homicide on the same charge. Neither O'Rourke nor Donohoe gave evidence.

[4] The case arose from a vendetta between two factions in Craigneuk. One was led by Neil Cairney (the deceased). The other, according to the Crown case, was led by the appellant. They had been involved in numerous fights and disturbances. In one incident, on 16 May 1992, the appellant had presented a shotgun at the deceased and threatened to shoot him.

[5] On 24 May 1992 the deceased, accompanied by his friend Brian Tarditti and two women, went to the appellant's house armed with a baseball bat and a chain. The deceased broke the windows of two cars parked in the driveway. The appellant and four others came out of the house, along with the appellant's cohabitant who removed the baseball bat from the deceased. The deceased then stood outside the garden gate swinging the chain at the five men, who were by then standing in the garden. The deceased retreated from the gate and the five men chased after him. The deceased landed on the ground and was battered to death with blows to the head and abdomen. Among the weapons used in the attack were pieces of paving stone, a plank of wood and the trunk of a small tree.

[6] The appellant gave evidence that when the deceased swung the chain it struck Stephen Donohoe and that Donohoe was then taken to a car by his brother Terence, one of the co-accused, and removed from the scene.

 

The Note of Appeal and supporting documents

[7] The Note of Appeal is as follows:

 

"Evidence is now available which was not heard at the trial which had it been so heard would have had a material bearing on the jury's deliberations. Neither James O'Rourke nor Stephen Donohoe gave evidence at the trial. Both former co-accused have since sworn affidavits to the effect that the appellant was not in involved (sic) in the attack which led to the deceased's death".

 

It is not the case that O'Rourke and Donohoe have sworn affidavits. All that the appellant has produced are two statements that were appended to the SCCRC Referral (Appendix, Nos. 21 and 22). The first is a brief statement, one and a half pages long, purportedly by James O'Rourke. The following is the relevant part of it:

"We all then made our way to Big Wull's house. Just after we arrived back at wull's Tarditti and Cairney and a crowd of other people came round looking for trouble.

 

In the fight that followed I picked up a paving slab which was lying against Big Wull's house. I smashed it in four or five pieces on the ground and picked up one of the pieces and threw it at Cairney. The slab struck him on the head and I saw him going down. Prior to me hitting him with this slab, Cairney was trying to assault me with a Big chain.

 

As he went down Big Wull shouted to me 'that's enough'. I ran back towards Wull's house. As I did so the two Donahoes and Armstrong set about Cairney who was lying on the ground. They were joined by the fifth man I have mentioned. I saw Stephen Donahoe ripping a tree out of Big Wull's garden and rushing back at Cairney with it.

 

At the trial I was desperate to give evidence to clear Big Wull but I was instructed to say nothing by my solicitor."

 

This statement is undated. It is not signed by O'Rourke or otherwise authenticated, and there is no note of the person who took it.

[8] The second document purports to be a transcript of a statement given by Stephen Donohoe on 14 March 1994. The following is the relevant part of it.

"Wull Gray was in the living room watching TV he had no shoes or socks on. His wife Marie was also in the house. We were not long in the house when we heard a noise outside. It was Tarditti, Neil Cairney, Kevin McGrath, Allan Watt and a few other people. They were smashing up my brothers car which was parked outside. Marie ran out and started to wrestle with Neil Cairney who was armed with a pick shaft and a chain. I ran out towards Cairney and he started to back out the gate of Grays house on to the road. At this point Cairney caught me with the chain. I fell to the ground. I got back up fuming mad and went for Cairney. At this point I was joined by my brother Terry and another person. I do not know who the other person was but it was definitely not William Gray. By this time I had lost my temper completely. I ran back in to Grays garden and uprooted a small tree. I ran back towards Cairney who was on the ground fighting with several other people. I beat him continually with the tree and inflicted severe injury to him. Looking back I SUPPOSE I WENT TOO FAR AND KILLED HIM.

 

There were a few other men attacking Cairney but, WILLIAM GRAY WAS NOT ONE OF THEM. I realised that I may have gone too far and decided to run for it before the police came. Before I ran away I shouted to big Wull Gray if he was coming. He was still at his front door with his shoes and socks off. He was very calm he told me that he was not going to run away as he had not been involved."

 

This statement too is unsigned and unauthenticated, and there is no note of the person who took it.

[9] The Commission considered the import of these documents (Referral, paras 43-47) and came to the following conclusion:

"44. Stephen Donohoe and Mr O'Rourke were co-accused along with the applicant on charge 30 on the indictment, the murder of Neil Cairney. Both men have provided statements, forwarded to the Commission, which state that the applicant was not involved in the incident which led to the death of Mr Cairney. Copies of these statements are numbers 21 and 22 in the appendix annexed hereto.

 

45. The Commission is not of the view that the explanations from both men as to why they did not provide the evidence contained in their respective statements at trial are reasonable in all the circumstances of this case.

 

46. The Commission has also considered the content of these statements. The Commission is of the view that given the evidence from other persons involved in the assault upon Mr Cairney which indicate the applicant's active involvement in the assault, and given that evidence from witnesses who were independent of the assault also confirmed that the applicant was actively involved in the assault, the statements from Stephen Donohoe and Mr O'Rourke are not of such a nature and quality that they would have had a significant bearing on the jury's consideration of the material issue of the applicant's involvement in the death of Mr Cairney.

 

47. For the above mentioned reasons, the Commission is not of the view that the statements provided by Stephen Donohoe and Mr O'Rourke lead to a conclusion that a miscarriage of justice may have occurred in this case. In reaching this decision the Commission has had regard to the case of Campbell and Steele v HMA 1998 SCCR 214; Kidd v HMA 2000 SCCR 513; McLay v HMA 2000 SCCR 579 and Lyon v HMA 2002 GWD 34-1138."

 

 

Submissions

[10] Counsel for the appellant submitted that the proposed new evidence was evidence that qualified under section 106, which is familiar and which we need not quote. It was significant evidence. The court should appoint a hearing at which O'Rourke and Donohoe could give evidence. The fact that the evidence came from two former co-accused was not a bar to its being considered (Mills v HM Adv, 1999 SCCR 202). Since the co-accused did not give evidence and were not compellable by the appellant at the trial, there was a reasonable explanation why their evidence was not heard.

[11] The advocate depute submitted that the proposed evidence was not in a satisfactory form. It did not consist of affidavits. Both statements were unsigned (Binnie v HM Adv, 2002 SCCR 738). It was not certain whether O'Rourke or Donohoe was prepared to give evidence on oath (Neeson v HM Adv, 2005 HCJAC 64, at para [12]). If the proposed witnesses had wished to exonerate the appellant at the trial, they had the opportunity to do so. Instead, they preferred not to give evidence (Brodie v HM Adv, 1993 SCCR 371, at p 380). This was not fresh evidence. It was simply a change of position. The concession made by the Crown in Mills v HM Adv (supra) in relation to the proposed evidence of the former co-accused (R) was formally withheld in the present appeal. The evidence against the appellant was powerful. A neighbour, Miss Hutton, saw all five men attacking the deceased in the middle of the road (Charge, pp 37-38). Brian Tarditti said that the appellant was one of the five men who left the garden and that he lifted a brick (Charge, p 43). Mary McGrath, one of the women who accompanied the deceased to the locus, said that all five of the men who had been in the garden charged out of the gate and attacked the deceased. The appellant had backed off from the attack and said to O'Rourke "That's enough, Porky." There had been evidence of hostile activity from the five men even when they were within the garden. A brick had been thrown from there. There was also the appellant's earlier threat to shoot the deceased. Much of what was said in the statements of O'Rourke and Donohoe was contradicted by the evidence at the trial. Donohoe's statement that Gray merely stood at the front door with his shoes and socks off was contradicted by the appellant's own evidence.

 

Decision

[12] In our opinion, there is no merit in this appeal. It fails in limine because the appellant has failed to tender evidence in any proper form. The purported statements are unauthenticated. We would not be justified in concluding from them that either of the purported witnesses would be prepared to speak to them on oath. The Note of Appeal was lodged in April 2003. For over two years the appellant's advisers have had the means at hand to lodge the alleged new evidence in the form of formal affidavits. Counsel for the appellant appeared to suggest that if we were not satisfied with the present form of the evidence, we could continue the appeal to enable affidavits to be produced. We are not prepared to grant such indulgence to the appellant. This appeal has been in dependence long enough. It was for the appellant's advisers to present the evidence in the form that the court considers to be appropriate (Binnie v HM Adv, supra). For this reason alone the appeal fails.

[13] In addition, we do not consider that the proposed evidence, taken at its best, is cogent evidence that could justify us in applying the section. We agree entirely with the Commission's conclusion that the proposed new evidence did not constitute a fit ground of referral. The accounts given by the proposed witnesses are completely lacking in detail in relation to the actions of appellant at the locus. The statement of O'Rourke does not entirely exclude the appellant's own involvement in the attack. The circumstantial detail given by Donohoe that the appellant did not have his shoes and socks on at the locus is contradicted by the appellant's own evidence at the trial (Transcript, vol 4, p 103). For these reasons too we consider that the appeal fails.

[14] On the view that we have reached, it is unnecessary for us to consider the wider question whether new evidence from a former co-accused who did not give evidence at the trial is evidence falling within the purview of the section. That issue was raised in Mills v HM Adv, (supra) in consequence of a concession then made by the Crown. That concession has been withheld in this appeal. The issue has not been discussed in detail. It can be considered at greater length if and when it is necessary to decide it.

[15] We should add that senior counsel for the appellant informed us that within the last two days the appellant had received information about possible additional evidence emanating from a woman who lived across the road from the appellant. According to senior counsel, this woman had given a statement to the police soon after the incident to the effect that the appellant did not leave the garden and took no part in the attack. Her statement was not intimated by the Crown to the defence. This woman was not called as a witness at the trial. Since senior counsel did not tender any documentation of any kind in relation to this new evidence and since he did not move us to continue the appeal so that it might be considered, this is not a matter that we can properly take into account.


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