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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> McBride v. Her Majesty's Advocate [2009] ScotHC HCJAC_2 (09 January 2009)
URL: http://www.bailii.org/scot/cases/ScotHC/2009/2009HCJAC2.html
Cite as: [2009] ScotHC HCJAC_2, [2009] HCJAC 2, 2009 GWD 3-50, 2009 SCL 476

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice General

Lord Mackay of Drumadoon

Lord Abernethy

 

 

 

 

 

 

 

 

 

[2009] HCJAC 2

Appeal No: XC231/06

 

OPINION OF THE COURT

 

delivered by LORD ABERNETHY

 

in

 

APPEAL AGAINST CONVICTION

 

by

 

DAVID McBRIDE

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

 

 

Act: Findlay, Q.C., Forbes; McClure Collins, Edinburgh

Alt: Young, A.D.; Crown Agent

 

9 January 2009

Introduction

[1] The appellant is David McBride. On
4 April 2006 after a seven day trial at the High Court in Paisley he was convicted as libelled on the following charges:

"(1) between 10 December 2004 and 10 June 2005, both dates inclusive, at the Antiques Warehouse, Unit 3A Yorkhill Quay, Glasgow and elsewhere, you were concerned in the supplying of a controlled drug, namely Cocaine, a Class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or others, including in particular to Alexander Andrew Joseph Docherty, formerly of Flat 6, 61 Croftside Avenue, Glasgow and Philip Mangan, c/o Strathclyde Police, Stewart Street, Glasgow in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b);

(3) on 10 June 2005 at the Antiques Warehouse, Unit 3A Yorkhill Quay, Glasgow you did assault Alexander Andrew Joseph Docherty, formerly of Flat 6, 61 Croftside Avenue, Glasgow, present a loaded shot gun at him and repeatedly shoot him on the body and you did murder him and you did previously evince malice and ill-will towards him."

Charge (2), a charge of breach of the peace, had earlier been withdrawn by the Advocate depute.


[2]
On charge (3) the appellant was sentenced to life imprisonment with effect from 19 July 2005. The court made an order in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 setting the punishment part at eighteen years. On charge (1) the appellant was sentenced to three years imprisonment with effect from 19 July 2005, that sentence to run concurrently with the sentence of life imprisonment.


[3]
The appellant has now appealed against his conviction for murder. The note of appeal contains three grounds of appeal but Mr Findlay, the appellant's senior counsel, explained that these were essentially directed at just one issue, namely, the way in which the trial judge had dealt with the evidence in his charge to the jury, which was mistaken in one respect and lacked the necessary balance. As a result a miscarriage of justice had occurred.


[4]
There was no dispute that the deceased, Alexander Docherty (familiarly known as Doc), had been murdered at the time and place and in the manner described in the charge. The issue was whether the person who murdered him was the appellant. The Crown case was that it was. The defence case was that it was Philip Mangan, the only other person present at the time. To that end a notice of incrimination naming him and a notice of intention to attack his character had been lodged by the defence.

 

The trial judge's report

[5]
In his report to this court the trial judge stated as follows:

"Both Alexander Docherty and Philip Mangan were cocaine addicts. Latterly Alexander Docherty (who was familiarly known as 'Doc') supplied Philip Mangan but both were supplied by the appellant over a substantial period. By the time Alexander Docherty was murdered, both he and Philip Mangan were in debt to the appellant. In Alexander Docherty's case the sum was thought to be about £2,000. In Philip Mangan's case it was about £450. Throughout June 2005 the appellant pressed both men to pay their debts but he did so, if I might put it this way, in a hot and cold fashion. This is borne out by the text messages he sent to Alexander Docherty. These are reproduced in Crown Production 16 ... and provide the basis for the allegation found proved by the jury that the appellant previously evinced malice and ill-will towards Docherty.

Philip Mangan was a crucial witness in the trial. He had been a successful businessman and even, according to his former wife, a manufacturer of furniture. Latterly his business lay in antiques and mostly in furniture. Unit 3A at Yorkhill Quay was jam packed with furniture and the like, but of somewhat variable quality. For about 18 years Mangan had been addicted to cocaine. This led to a steady decline of his business which some years before the murder had been transferred to his wife. From a portakabin within the Unit he carried on some transactions but there, mostly it appeared, he met and smoked cocaine with Alexander Docherty. It might be said that because of his addiction he had fallen on somewhat evil days.

On 10 June 2005 the appellant, according to Philip Mangan, came to the Antiques Warehouse about 6.30 pm. He drove there in his green Vauxhall Vectra car which he parked outside. Between 7.00 pm and 7.15 pm, Mangan spoke to Alexander Docherty in private on the phone. Alexander Docherty said he would speak to the appellant. So Mangan gave the phone to the appellant and left to go to the Unit next door where he unsuccessfully attempted to raise money from the tenant in order to pay in full his drug debts. When he returned to his own Unit the appellant said he had spoken to Alexander Docherty and that Docherty was coming down. This caused great surprise to Mangan. About 10-15 minutes later Alexander Docherty arrived. There followed a friendly conversation between Docherty and the appellant with Docherty sitting on the floor of the portakabin, the appellant sitting in one chair and Mangan in the other. All seemed very pleasant. The appellant had paid all of Docherty's bill. So Docherty owed money directly to the appellant and the appellant asked Mangan to get the money from Docherty.

At some point the appellant went out to his car. When he returned, he stood just inside the door of the portakabin. He said: 'Doc', which as I have said was Docherty's nickname. In his hand, he held in extended fashion a double barrelled, side by side, sawn-off shotgun. There was no verbal threat of violence. The appellant then discharged the first barrel into Docherty's right thigh from a distance of between 3 and 6 feet. As he fired the second barrel Docherty said: 'Davie. No, please.' The second shot scuffed the back of Docherty's left arm and entered the left side of his chest with fatal results. Death thereafter was rapid. The appellant then turned to Mangan and said: 'And I still want my money. You are next.' According to Mangan, the appellant's face was rigid, black with rage and he was obviously very angry. With that, the appellant left the premises. His car was timed leaving through the security gates at the Quay at 8.30 pm. Twenty-seven hours later the car was found, apparently abandoned, in Garthamlock in Glasgow. When examined for firearms discharge residue, none was found within it. Thirty-eight days later, by arrangement with his solicitor and the police, the appellant surrendered to the Petition warrant for his arrest. Since 19 July 2005 he has remained in custody.

As soon as the appellant left, Philip Mangan called the emergency services. His first call was timed at 8.30 pm. He also phoned his former wife and, several times, the appellant to whom he got through on one occasion. He said to the appellant: 'You killed him', to which he got a non-committal response. The first police officer who arrived on the scene, PC McCready, said that Mangan was, 'Very shaken. Very upset. He appeared to be in shock. He was visibly shaking and his face was white'.

Mangan was incriminated by the appellant and cross-examined at length by defence counsel. Despite the vigorous and skilful cross-examination, which included exploration of Mangan's association with prostitutes in the portakabin to whom he there supplied cocaine, Mangan adhered to the account I have set out above. As was his right, the appellant did not give evidence."

The accuracy of the report was not in dispute. Two points should be added. First, not long after the phone call to Docherty mentioned in the report, when Docherty had not turned up, Mangan said he was asked by the appellant to phone Docherty again and see if he was coming. Mangan did this and Docherty said he was just getting into his car, or a taxi. Shortly thereafter Docherty arrived. Second, the murder weapon was never recovered.

 

The judge's charge


[6] The charge was a relatively short one. It ran to only 19 pages. No issue is taken with any of the directions in law. The judge did not enter into the evidence in any detail. It was not disputed that he was perfectly entitled to take that course. Towards the end of his charge, however, he did mention two aspects of the evidence. Just before that he had made it clear to the jury that the question for them was not "Who fired the gun that killed Alexander Docherty?" but whether the Crown had satisfied them beyond reasonable doubt that the person who shot him was the appellant. He also directed them that in determining that question their assessment of Mangan's evidence was critical. They had to decide whether, having considered all the evidence, they found him a credible and reliable witness. Upon their decision on that matter might depend their answer to the question he had just posed.


[7]
The charge then continued as follows:

"And perhaps I should turn to look at two other aspects of the evidence. Mr Findlay is, of course, correct when he says that Mr Mangan is crucial to the case and, as I have already indicated, you must make your own assessment of him as a witness. In his speech Mr Findlay asked you to imagine or picture what Mr Mangan was like on the night of 10th June, 2005. Since the learned Advocate Depute mentioned it in his speech, but it was not commented on by Mr Findlay in his speech, I think I should remind you that what the first witness on the scene after the shooting, Police Constable McCready, said about Mangan's appearance, admittedly as I have said after the shooting, was this: he was very shaken, very upset, he appeared to be in shock, he was visibly shaken and his face was white. That, at least, is my note for what it is worth. What you make of the description by the police officer is entirely a matter for you. Mr Findlay also said correctly that you must proceed on the evidence in this trial and only on that. May I remind you in that connection that the answers given by witnesses constitute the evidence in the trial, not the questions. Several times yesterday afternoon Mr Findlay in his speech referred to Mr Mangan luring Alexander Doherty to his death in the antiques warehouse. I suggest that you should consider from your notes or your recollection of the evidence whether that is a fair description of what happened that night. According to my notes the accused, David McBride, came to the warehouse about 6.30pm. Mangan said he contacted Doc, Alexander Docherty, by phone between seven and 7.15 and spoke to him in private. Doc said, according to Mangan, he would speak to McBride so he, Mangan, gave the phone to McBride and left to go to the unit next door in order so speak to Mrs Hughes about borrowing some money to help pay his drug debt. When he returned to his own warehouse unit McBride told him that he had spoken to Doc and that Doc was coming down. In cross-examination Mangan said that it came as a great surprise to him when McBride told him that Doc was going to come down. Now, these are just my notes, they may not accord with your recollection and if they don't prefer your own but if my notes are right do you think it can fairly be said that Mangan in these circumstances lured Doc down to the warehouse unit? Indeed, you might think there is no evidence that he did so. That is all I want to say about the evidence, ladies and gentlemen, it is for you to make your own assessment of it all and, in particular, the character of Philip Mangan, whether he is credible or reliable."

 

Submissions of counsel

[8]
After noting that the judge had not reviewed the evidence in any detail in his charge Mr Findlay said that towards the end he had referred to two aspects of the evidence. Mr Findlay accepted that he was entitled to take that course but the obvious danger in doing so was that the jury would see those aspects as having an importance which was out of balance with the rest of the evidence. That is what was likely to have happened here. Both aspects that the judge had mentioned were detrimental to the appellant. Moreover, in dealing with one of them he had misrepresented the defence position and this also had resulted in unfairness to the appellant.


[9]
The first aspect which Mr Findlay dealt with (which was actually the second aspect mentioned by the judge) related to passages in his closing speech to the jury the previous day, in which he had said several times that it was Mangan who had lured Docherty to his death. In his charge the trial judge had suggested to the jury that they should consider whether that was a fair description of what had happened. He then summarised from his own notes the evidence that Mangan had given on this matter and concluded by asking the jury whether, if his notes accorded with their recollection, it could fairly be said that Mangan lured Docherty down to the warehouse unit. He then added: "Indeed, you might think there is no evidence that he did so." Mr Findlay said his position before the jury had been that the jury could accept Mangan's evidence that he made both telephone calls to Docherty from the warehouse on the fatal evening and they could accept that following those calls Docherty had arrived at the warehouse and had been shot shortly thereafter. They should, however, reject Mangan's explanation that he gave the telephone to the appellant and that it was in response to what the appellant had said to him that Docherty had come to the warehouse. If the jury accepted Mr Findlay's position, they could infer that Docherty had come to the warehouse in response to what Mangan had said to him. The issue was somewhat coloured by the use of the word "lure" but in fact it was the Advocate depute who had first used that word in his speech to the jury to describe what the Crown said the appellant had done. If Mangan had been in the dock (instead of the appellant) the Crown would no doubt have said that a sinister inference could be drawn on that view of the evidence. The evidence would not in itself have been sufficient to convict Mangan but it would have called for an explanation and would have been an adminicle of evidence, a circumstance which was capable of a sinister inference.


[10]
The other aspect of the evidence which the trial judge mentioned in his charge related to the picture Mangan presented at the time of the murder. Mr Findlay had referred to this on a number of occasions in his speech to the jury. The trial judge had taken the point that was being made to have been the physical state Mangan was in at the time when the murder was committed and he went on to remind the jury that the first witness on the scene after the shooting, Police Constable McCready, had described Mangan as very shaken, very upset and apparently in shock. But the trial judge had mistaken the position. Mr Findlay had not been referring to the physical state Mangan was in at the time of the murder, but to the kind of man he was around that time and the lifestyle he followed, as opposed to the more respectable picture he had sought to present of himself in the witness box. That was clear from what Mr Findlay had said in his speech to the jury as part of his wide-ranging attack on Mangan's credibility. The jury were well aware that that had been the nature of his attack on Mangan all the way through the trial but this passage, in what was a concise charge, had been given towards the end and shortly before the jury retired. It did not accurately and fairly represent the defence position and may have left the jury with the wrong impression of what that position was.


[11]
In these circumstances the court should conclude that the charge lacked the necessary balance and was unfair to the extent that it amounted to a miscarriage of justice. The appeal should be allowed and the conviction for murder quashed.


[12]
In response the Advocate depute reminded us that there was no evidence that Mangan had lured Docherty to the warehouse. The evidence of Mangan, which had been accurately summarised in the charge, was the only evidence led on this matter. On several occasions in cross-examination it had been put to Mangan that he had persuaded Docherty to come to the warehouse and Mangan had denied it. There was no other evidence to support the view that Mangan had lured Docherty to the warehouse. Mr Findlay had not suggested to the jury that they could infer from other facts that Mangan had lured Docherty. He had told them it was a fact. In these circumstances the trial judge was quite right to bring the matter to the jury's attention in the way he did. It was true that the Advocate depute had told the jury that Docherty had been lured to the warehouse but that was based on the evidence given by Mangan as to what the appellant had done.


[13]
With regard to the picture Mangan presented on the night of the murder, the Advocate depute accepted that the trial judge had misapprehended the point which was being made by Mr Findlay in his speech to the jury. But it did not amount to a miscarriage of justice. Mangan had been cross-examined at considerable length. Most of the cross-examination had been directed at his character. There was indeed no dispute between the parties as to his character and the judge had said nothing to deflect the jury from Mr Findlay's general attack on Mangan. At the end of his cross-examination of Mangan no one on the jury could have been in any doubt that the defence were saying that he, Mangan, had killed Docherty and that the Crown case had therefore not been proved. That was equally true at the end of Mr Findlay's speech to the jury.

 

Discussion

[14]
In our opinion the trial judge was well entitled to invite the jury to consider whether Mr Findlay's assertions in his speech to them that Mangan had lured Docherty to his death in the warehouse were a fair description of what, on the evidence, had happened. The relevant passage in the charge opens with a reminder to the jury to proceed on the evidence and only on that. That is the context for his later remarks. There was indeed no evidence that Mangan lured Docherty. Mr Findlay submitted to us that it could be inferred, if the jury accepted Mangan's evidence that he had telephoned Docherty on each of the two occasions in question but rejected his evidence of what followed. We are not persuaded that that is correct, but in any event that was not the way Mr Findlay put it to the jury. He put it as a matter of fact and he did so on a number of occasions. In that situation we consider that the judge was well entitled to draw the jury's attention to the matter for their consideration. There was in our opinion no unfairness in the way he did so.


[15]
On the other matter raised in the appeal, it was accepted by the Advocate depute that the judge misapprehended the point Mr Findlay was making in his speech to the jury when he had reminded them of Mangan's circumstances and lifestyle at the time of the murder and submitted that when considering his evidence they should picture him in that light, as opposed to the more respectable light in which he had sought to present himself in the witness box.


[16]
In his speech to the jury Mr Findlay spent a considerable time reminding the jury of Mangan's character at the time of the murder and stressed on a number of occasions that in assessing his evidence the jury should picture him as he was then rather than as he presented himself at the trial. At the time of the murder Mr Findlay said Mangan was a man who was really at the end of the road. He was a cocaine addict, his business had gone and he abused prostitutes in return for drugs. He went on as follows:

"And this may be one of the important aspects of the whole case, ... to try and picture Philip Mangan as he was at the time."

He contrasted that with Mangan's appearance in the witness box, looking like a business man, with a smart suit and well-spoken, and asked the jury a number of times to picture him as he was at the time of the murder, concluding with these words:

"You must, please, if you do nothing else for me in this case when you assess the evidence, picture Mr Mangan not as he is now or what he wants you to believe he is now, but as he was."


[17]
In these circumstances we consider that the Advocate depute was correct to make the concession that he did. The question that then arises is whether the judge's error on this matter amounted to a miscarriage of justice.


[18]
We are clearly of the opinion that it did not. The trial had lasted seven days. As was accepted by Mr Findlay, the jury would have been well aware throughout the trial that the defence were attacking Mangan's character on the basis of the person he was and the lifestyle he was leading around the time of the murder and asking the jury in effect not to accept his evidence. Equally, in our opinion, they could have been in no doubt from what Mr Findlay had said in his speech that the defence were asking them to picture Mangan as he was at the time of the murder rather than as he sought to present himself at the trial. In our opinion nothing that the judge said could have raised any doubt about that matter. The evidence of PC McCready as to the state that Mangan was in after the shooting was not in dispute. Indeed, in a later part of his speech to the jury Mr Findlay said that of course Mangan was going to be upset; either he had just seen a murder being committed or he had just murdered somebody. But that was not the point that Mr Findlay had been making when he asked the jury to picture Mangan as he was at the time and, having regard to all that had passed in the course of the trial, we do not think that the jury could have been in any doubt about that. The judge's mistake was, of course, unfortunate but it did not in our opinion amount to a miscarriage of justice.

 

Decision

[19]
For all these reasons the appeal is dismissed.


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