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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> McArthur v. Her Majesty's Advocate [2006] ScotHC HCJAC_83 (10 November 2006)
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Cite as: [2006] ScotHC HCJAC_83, [2006] HCJAC 83

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Osborne

Lord Abernethy

Lord Johnston

[2006] HCJAC 83

Appeal No: XC1038/04

 

OPINION OF THE COURT

 

delivered by LORD OSBORNE

 

in

 

NOTE OF APPEAL AGAINST CONVICTION and SENTENCE

 

by

 

MICHAEL COYLE McARTHUR,

Appellant;

 

against

 

HER MAJESTY'S ADVOCATE

Respondent:

 

_______

 

 

 

Act: Kerrigan, Q.C., McLaughlin; McArthur Stanton, Dumbarton

Alt: Grahame, A.D., Crown Agent

 

10 November 2006

 

The background circumstances

[1] The appellant, along with John Thomas McCormack, faced an indictment containing two charges, the first a charge of murder and the second a charge of attempting to pervert the course of justice. On 26 November 2004 at the High Court in Glasgow, he was found guilty by a majority verdict of the jury on both of these charges, subject to deletions and amendments. It should be explained that, on 23 November 2004, the trial judge heard submissions of no case to answer from counsel for the appellant and for John Thomas McCormack. The submission made on behalf of the appellant was repelled, but that made on behalf of his co-accused was sustained.

[2] The terms of the charges on which the appellant was convicted were as follows:

"(1) on 7 or 8 May 2002 on waste ground on the bank of the River Leven near to the Linnbrae Hole, Alexandria, or elsewhere in West Dunbartonshire, you ... did assault Amy Frances Doreen Anderson, formerly of 5 Gray Street, Alexandria and did strike her repeatedly on the body and compress and constrict her neck, thereby restricting her breathing, all to her injury or by other means to the prosecutor unknown assault her and you did murder her...;

(2) between 7 May 2002 and 22 September 2002 both dates inclusive, at Wilson Street and at Alexandria Police Station, Hill Street, both Alexandria, at Dumbarton Police Office, Dumbarton and elsewhere in West Dunbartonshire, with intent to conceal your commission of the murder of Amy Frances Doreen Anderson ... and with intent to frustrate the course of justice you ... did:

(a) on 7 or 8 May 2002 at a place to the prosecutor unknown in West

Dunbartonshire you ... did dismember the body of said Amy Frances Doreen Anderson;

(b) between 7 and 14 May 2002 on waste ground adjacent to the bank of

the River Leven near to Linnbrae Hole, Alexandria, West Dunbartonshire, you ... did light a fire with intent to burn and did attempt to burn and destroy parts of the body of said Amy Frances Doreen Anderson and thereafter you did consign part of her body to the River Leven there;

(c) between 7 and 14 May 2002 at place or places to the prosecutor

unknown you ... did dispose of the remaining body parts of the said Amy Frances Doreen Anderson;

(d) ...

(e) ....

(f) on 10 May 2002 at Dumbarton Police Office, Dumbarton you ... did

falsely state to Detective Constable Archibald Fletcher and Detective Sergeant Michael McCormack, both officers of Strathclyde Police, Glasgow and then engaged in the investigation of that murder that you had last seen, and last been in the company of, Amy Frances Doreen Anderson at about 12.30 p.m. on 3 May 2002 at the Salvation Army Halls, Alexandria;

(g) on 13 May 2002 at Dumbarton Police Office, Dumbarton, you ... did

falsely state to Detective Constables Thomas Reynolds and George Scott, both officers of Strathclyde Police, Glasgow and then engaged in the investigation of that murder that you had last seen, and last been in the company of, Amy Frances Doreen Anderson at about 12.30 p.m. on 3 May 2002 outside the Salvation Army Hall in Alexander Street, Alexandria;

(h) on 16 May 2002 at Hill Street Police Office, Alexandria you ... did

repeat these false claims to said Michael McCormack and said Archibald Fletcher;

(i) on 17 May 2002 near Lennox Street, Alexandria, you ... did falsely

state to Sergeant Ian Cameron, an officer of Strathclyde Police, Glasgow, then engaged in the investigation of that murder that you had just found outside your container unit in the corner of Lennox Street and Wilson Street there, a DSS allowance book issued to Amy Frances Doreen Anderson and did repeat this account to Detective Constables Gerard McCann and Neil Duncan on 12 June 2002 at Alexandria Police Office, Alexandria; and

(j) on 26 July 2002 at Dumbarton Police Office, Dumbarton, you ... did

falsely state to Detective Constables Philip Peacock and Thomas Rodgers, both officers of Strathclyde Police then engaged in the investigation of that murder that Bryan Galloway, care of Strathclyde Police, Alexandria had on 7 May 2002 solicited your assistance to help him remove the dismembered body of Amy Frances Doreen Anderson from waste ground adjacent to Dalquhurn Industrial Estate and to conceal parts of her body in mud flats of the River Leven close to the A82 Bypass and that you had rendered such assistance to Bryan Galloway and by these false accusations did attempt to render Bryan Galloway liable to suspicion, accusation, arrest and prosecution by the criminal authorities for the murder of Amy Frances Doreen Anderson;

and by these means you ... did attempt to conceal the murder of Amy Frances Doreen Anderson by you and to divert police enquiries from the investigation thereof and with intent to pervert the course of justice and you did thus attempt to pervert the course of justice.".

[3] It should be recorded that the appellant, prior to his trial, lodged a notice of intention to incriminate his co-accused. He also lodged a special defence of incrimination naming Bryan Galloway, named in charge (2)(j) as being responsible for the murder. The indictment called for trial on 19 October 2004. Evidence was heard on 20 and 21 October. On 22 October, the appellant was unwell and the trial was adjourned until 25 October without any evidence being heard. Further evidence was heard on 25, 26, 27 and 28 October. During 28 October the appellant again became unwell and was taken to hospital. The trial was adjourned until 29 October. Thereafter no further evidence was heard until 9 November, because the appellant was in hospital undergoing tests. On 9 November the trial resumed and further evidence was heard on that date and on 10, 11, 12, 15, 16, 17, 18, 19 and 22 November, when the Crown case was closed after the reading of a Joint Minute. On 23 November the trial judge heard submissions of no case to answer. On 24 November one witness gave evidence on behalf of the appellant and a further Joint Minute was read to the jury, after which the case for the appellant was declared closed. On the motion of the Advocate depute, evidence in replication was allowed to be led from two further witnesses. On 25 November, certain amendments to the indictment were allowed, following which the Advocate depute and counsel for the appellant addressed the jury. The trial judge charged the jury on 26 November, on which date a verdict was reached. On 23 December 2004, the trial judge, in respect of charge (1), sentenced the appellant to life imprisonment, with a punishment part of 20 years; on charge (2) he was sentenced to 5 years imprisonment, these sentences being ordered to run concurrently from 1 September 2004.

[4] The salient facts of the case which emerged in evidence were as follows, The deceased, Amy Frances Doreen Anderson, was an heroin addict, who associated with other addicts in the Alexandria area, one of whom was the appellant. The deceased had been introduced to heroin by her boyfriend, Bryan Galloway, the incriminee in the case. She was last seen alive in the centre of Alexandria about 6.30 p.m. on 7 May 2002. At the beginning of May 2002, the appellant was living in a container unit, which was situated at a point in Alexandria a relatively short distance from the River Leven. The deceased had, at some stage, earlier in that year stayed with the appellant in his container for a night or two. The evidence disclosed that Bryan Galloway had been an in-patient in the Vale of Leven Hospital from 6 to 8 May 2002, having sustained certain stabbing injuries. During the night of 7 to 8 May, according to nursing notes, he was settled and sleeping. However, it would have been possible for him to have left the ward where he was without his absence necessarily having been noticed. In the early hours of 8 May 2002 several members of the nursing staff in the Vale of Leven Hospital heard the sound of screaming from an area of the hospital grounds. The source of this noise was not precisely established, but the Crown asked the jury to infer that it was connected with the death of the deceased.

[5] Also in the early hours of 8 May 2002, the appellant was observed by two witnesses, Kenneth and Robert Wrethman, on the bank of the River Leven in the area of Linnbrae Hole. He was seen to light a fire. Thereafter he put something on the fire which, according to one of these witnesses, gave off a horrible smell. A lot of black smoke was created. The appellant's dog, which was present at the time, displayed great interest in what was on the fire. Between 2.20 and 3.20 p.m. on 8 May 2002 a witness in Dumbarton saw an object floating in the River Leven there. It was in a black bag. The witness connected this with the body of the deceased when he heard that her torso had been found at the edge of the river in Dumbarton the following day. The torso was in fact discovered at about 7.45 a.m. on 9 May 2002. It was not in a bag on discovery. An autopsy of the torso was unable to establish the cause of death, but internal and external bruising was observed, together with petechial haemorrhages in the lungs. The latter might be indicative of asphyxiation.

[6] Following the discovery of the torso of the deceased, an extensive police investigation was undertaken. The appellant was interviewed several times by the police. During one interview he informed the police that he had had a dream about disposing of part of the deceased's body. In a later interview, he gave the police a detailed account of helping Bryan Galloway to dispose of the deceased's head and limbs. He took police officers over the route which he claimed to have followed with Galloway, but a thorough search of the area where the appellant said that the body parts had been disposed of disclosed nothing. However, the deceased's pelvis was eventually found at a place on the opposite bank of the River Leven, more or less directly across from the point indicated by the appellant. Nearby were also found the remains of a pram similar to that described by the appellant as having been used to transport the body parts. In his statements to the police the appellant maintained that had last seen the deceased on 3 May 2002, as described in charge (2)(f) and (g). Evidence was led from a witness, Thomas Sutherland, that the appellant and the deceased had been together in North Street, Alexandria on 6 May 2002. Another witness, Julie McGowan, spoke to having seen the deceased in the company of the appellant during the afternoon of 7 May 2002 in the centre of Alexandria. On 17 May 2002 the appellant approached police officers who were in the area near his container and gave them a D.S.S. allowance book in the name of the deceased. He said that he had just found it by the step leading to his container. The area where he claimed to have found this book had previously been thoroughly searched by the police, when nothing of significance had been found.

[7] In July 2002, the appellant was living in a tent in an area known as Fisher Wood. A witness, Colin Gray, was with him. They were discussing the death of the deceased. The appellant broke down and said that everyone was saying that he was the murderer. Then he said "It's me". When Gray asked him if that was true, the appellant did not say anything, but buried his head in his dog's coat. On another occasion in July 2002 at the same locus a witness, Callum McRoberts, was present. Again the deceased's death was being discussed. According to McRoberts, the appellant said: "I did it, but I didn't mean it."

[8] One witness, William Clark, who had been on the Crown list of witnesses, was not led in evidence by the Crown, but gave evidence for the defence. He stated that he had been in a house in Gray Street, Alexandria, about the address of which he was uncertain, on a date in May 2002. He was in the house for no more than 5 minutes. He said that he saw the deceased there lying face down on the floor. At first she was breathing and then she appeared to have stopped breathing. Mr. Clark then left the house. Mr. Clark stuck to this version of events, although statements which he had made to the police in which he gave differing accounts were put to him. In rebuttal of his evidence, the Crown led two police officers who had taken statements from him. They spoke to the fact that Mr. Clark had not been under any form of duress when he had made his statements. He had been given an opportunity of reading through them and had signed each page.

 

The grounds of appeal

[9] The appellant has now appealed against his conviction and sentence. As regards conviction, five grounds of appeal have been tabled. These are in the following terms:

"Ground 1. The trial judge wrongly dismissed an objection to the line of evidence taken by defence counsel and allowed irrelevant and prejudicial evidence to be before the jury in an alleged statement by the accused which was not under caution. During the evidence of Crown witness 99 Detective Sergeant McCormack objection was taken by the defence to production 24 as being a witness statement taken from the accused without a caution having been administered where the questioning went into detail about past employment and the accused indicated that he had been involved in slaughtering sheep in a bath. Further objection was taken to production 26 where the appellant (at page 3), when being asked about jobs he had held, described taking the leg off an animal. These objections were repelled. It is submitted that the learned trial judge was wrong in repelling these objections on the basis that the evidence obtained, not under caution, which thus went to the jury was irrelevant in respect that it was narrating in response to questioning occupations long in the past and employment circumstances which were highly prejudicial when the jury had to consider whether the appellant had any part in the dismemberment of the deceased (which he always denied) as opposed to disposal of parts of a dismembered body (which he admitted and explained in various statements).

Ground 2. The learned trial judge erred in refusing the no case to answer submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 in relation to charge (1). In respect of charge (1) the first part of the submission was to the effect that the Crown had failed to establish that a murder had been carried out. It was submitted that the facts did not disclose a murder in that all that had ever been recovered was a torso. The dismemberment had occurred after death. The cause of death, by the unanimous opinion of the three pathologists was unknown and unascertainable. It was submitted that the jury would have to speculate about whether a particular area of bruising was in any way associated with an act of violence. There were other possible explanations such as the result of a fall. It was submitted that death must be as a result of a criminal act or omission and this had not been proved by the evidence led. The second part of the submission was to the effect that in relation to both charges there was no evidence of concert involving both accused. The Crown case in respect of charge (1) included evidence of alleged admissions by the appellant. It was submitted that they were insufficient to establish the appellant as actor, art and part. It was submitted that on the basis of the evidence led by the Crown the possibility that the incriminee Bryan Galloway had carried out the murder had not been excluded. If it could be inferred that a murder had been committed then there was evidence pointing to Bryan Galloway. It was submitted that there was no evidence led by the Crown linking the appellant with his co-accused in any form of joint enterprise. In those circumstances there was no evidence of any art and part responsibility. If it were the Crown's position that the appellant was acting in concert with Bryan Galloway, then that took the Crown no further in relation to charge (1). The appellant's participation in assisting with the disposal of body parts could not be used as a means of establishing his guilt as actor or by way of art and part with his co-accused. The third part of the submission was that a special defence of incrimination had been raised by the appellant. It was for the Crown to exclude it beyond reasonable doubt. The appellant had incriminated Bryan Galloway who was available to the Crown as a witness but not called. It was submitted that it was for the Crown to lead evidence to exclude the said Bryan Galloway. Accordingly, the Crown failed to establish that a murder had in fact taken place or that the appellant had any responsibility on an art and part basis. The Crown had also failed to exclude the special defence. See Renton & Brown paragraph 24.01 (Hendry v Her Majesty's Advocate 1998 S.L.T. 25).

Ground 3. The trial judge wrongly took the view that the sub-heads in charge (2) were not themselves separate charges in respect of each of which it was possible to make a submission, and in any event wrongly repelled submissions in terms of section 97 aforesaid in relation to charge (sic) (a), (d), (i) and (j). The fourth part of the submission was that so far as charge (2) was concerned, the separate heads of the charge could each be the subject of a submission of no case to answer. It disclosed a series of crimes and in respect of certain parts there was insufficient evidence. It is submitted that there was insufficient evidence in relation to heads (2)(a), (2)(d), (2)(i) and (2)(j). Charge (2)(a) was also the subject of a submission in relation to the question of concert. Charge (2)(d) was later withdrawn by the Crown and did not go to the jury. It was open to the learned trial judge to deal with those as distinct charges and not as a single course of conduct. Reference is made to paragraph (b) above and the same ground applies to charge (2)(a) in that respect. In relation to charge (2)(a) there was no evidence that the appellant dismembered the body of the deceased. At its highest (were it admissible- supra) there was some evidence in statements made to the police that the appellant had experience and knowledge in relation to dressing sheep and deer. A submission was further made in relation to charge (2)(I) (sic). There was evidence that a search had taken place of the container on or about 11 May 2002. Nothing had been found. There was evidence that the appellant then handed over the book on 17 May 2002. There was no evidence adduced to contradict the appellant's position that he has (sic) just found the book at that time. There was no evidential basis to support any view that it had been placed there by the appellant. A further submission was made in relation to charge (2)(j) that the Crown had a duty to exclude Galloway in relation to his involvement in terms of the appellant's special defence. The Crown had been given fair notice as to the appellant's position. The Crown were under a duty to produce evidence from Galloway to the effect that the appellant's allegations were false. This was not done. There was accordingly no evidence to demonstrate that the appellant's allegations were false. There was accordingly insufficient evidence to demonstrate that a false position had been stated to police office (sic) by the appellant on 26 July 2002. The learned trial judge refused the motion. It is submitted he erred in so doing. That being so the appellant was denied a fair trial and there was a miscarriage of justice.

Ground 4. The trial judge misdirected the jury by failing to give them adequate directions as to how to approach the evidence in charge (1). Whilst directing the jury on the law of murder (page 10 line 25 to page 11 line 12) in what had been a protracted trial the trial judge failed to identify the crucial issues the jury had to determine as they proceeded. His directions (page 12 line 18 to page 15 line 7) were scant, inadequate and fundamentally and fatally flawed. The basic issue in light of the evidence in the case was whether a murder had been committed at all and if so how, when and by whom. In a long and complicated case before going on to the question of any form of alleged admissions by the accused the basic question of whether there had been a murder required to be addressed. The learned trial judge required to direct the jury to address this as the fundamental issue. The learned trial judge was correct in pointing out that there was no eye witness evidence (page 6 lines 19 to 23) simply circumstantial evidence. The pathologists were unable to ascertain a cause of death as some body parts were still missing. The learned trial judge should have directed the jury to consider the medical evidence with care and consider whether on that evidence an inference could be drawn that the deceased had been killed. The learned trial judge failed to make any reference to the medical evidence led in relation (a) to other possible explanations for the death of the deceased which he should have done. The time of death was crucial in light of the varied circumstantial evidence. There was evidence before the jury that the deceased had been seen by a witness David McDiarmid at 6 p.m. on 7 May 2002 and by a witness Mary Stern at 7 p.m. and by William Clark at varying times on 8 May 2002. The Crown led evidence from three midwives from the Vale of Leven Hospital, Pauline Waddell, Pamela Campbell and Fay McAteer, who because of the nature of their employment had to note times carefully, who were able to say that between 1.05 and 1.25 a.m. on 8 May 2002 they heard horrific screaming outside the hospital in the direction of the main road. Their evidence was crucial in considering whether Bryan Galloway, an in-patient at the hospital following a stabbing, who was up and about his ward at 1.35 a.m. collecting prescribed drugs from the duty nurse, had opportunity to be out in the grounds and inflict death upon the deceased. The trial judge failed to give any directions on these matters. The Crown led evidence from Kenneth Wrethman and Robert Wrethman that they had gone on a fishing trip on 8 May from 4 to 6 a.m. (KW) or from about 1 a.m. until just before sunrise (RW) and that they saw the accused drag something to a spot near steps on the other side of the river where he set something alight which one of them spoke to having an awful smell. They resisted the suggestion that any fire on the other side had been in the early hours of the morning of Saturday 11. Further and in any event the learned trial judge failed to draw to the attention of the jury the serious discrepancies which existed in the differing accounts given by the two witnesses about the same event as regards time, the circumstances and their reasons for leaving the area. The Crown led evidence from a witness Colin Gray showing video shots of him leaving an address just before 3 a.m. on 8 May. He stated (and this was unchallenged) that he made his way to Mr. McArthur's container arriving about 3.30 a.m. and that Mr. McArthur was there and remained there until they left, with another who had arrived later, for Mr. McArthur to make a cash withdrawal of which a record was produced showing that to be at 6.33 a.m. It was incumbent upon the trial judge to give the jury directions as to how they should approach the question of the possible time of death. Further, the learned trial judge said that counsel for the appellant had been wrong to suggest that defence witness William Clark ought to have been called by the Crown. He was an important witness in that he may have been the last person to see the deceased alive and dying a non-violent death. He was on the Crown list. The learned trial judge deals with this at page 12 of his charge at lines 5 to 17 inclusive. To do so was likely to have a prejudicial effect in the minds of the jury. Further they should have been directed that if the (sic) accepted the evidence of the witness Clark or it raised a reasonable doubt in their minds they could not accept the evidence of the Wrethman brothers which was challenged by the defence in respect of date and time. The jury should also have been directed that the evidence from Clark was vital as to whether they considered the evidence of the three nurses Miss Waddell, Campbell and McAteer had any relevance to the case. It is thus submitted that the learned trial judge erred in directing the jury in the foregoing respects. That being so, the appellant was denied a fair trial and there was a miscarriage of justice. It is submitted that the conviction should be quashed.

Ground 5. The trial judge failed to direct the jury on the effect of the acquittal by him of Mr. McCormack whose name remained on the indictment and in respect of whom a notice of incrimination had been lodged. The trial judge properly directed the jury that in respect of any statement made by Mr. McCormack it was not evidence against Mr. McArthur (page 6 lines 3 to 8) but then went on to say 'So put anything Mr. McCormack said to the police out of your minds' (page 6 lines 8 to 9). It is submitted that was a misdirection. Mr. McCormack made several admissions to the police which were evidence against himself. He was an incriminee. The jury should have been directed that as the statements were evidence in the case if the admissions (which were as sole actor in killing the deceased) raised a reasonable doubt in the minds of the jury as to Mr. McArthur's guilt he should be acquitted. It is submitted that in all the circumstances the appellant was denied a fair trial and that a miscarriage of justice has been suffered. It is submitted that the convictions of the appellant should be quashed."

 

Submissions for the appellant

[10] Senior counsel for the appellant commenced his submissions by reference to ground of appeal 4, which he said was the principal ground that encompassed the others. He submitted that the trial judge's charge was defective in respect that the critical issue in the case was never addressed. It was whether there had been a murder and, if so, when and in what circumstances it had been committed. It was accepted that the trial judge had given a definition of murder between page 10, line 9 and page 11, line 13 of his charge. However, thereafter he spoke of "the murder" and referred to the admissions. The situation at the trial had been that a main issue was whether there had been a murder at all, or whether, after a death, there had been disposal of a body, parts of which had been found in the River Leven and other parts of which had been found elsewhere. Senior counsel agreed that what had been said by the trial judge at page 9, lines 19 to 23 formally covered the issue of whether a murder had occurred, but there had been no indication to the jury that that had been a matter of controversy. While the jury might well have appreciated that it was, nevertheless the trial judge had a duty to highlight fundamental controversial issues. The directions should have given some indication of those critical issues which were controversial. That was particularly important since, in this case, there had been some evidence that the death of the deceased had been accidental, or, in any event, of a non-murderous nature. That evidence had come from a witness, William Clark, called by the defence. He had given evidence of being in a house in Gray Street, Alexandria on an uncertain date in May 2002. He had said that he had seen the deceased lying face down on the floor. At first she had been breathing, but subsequently she appeared to have stopped breathing, after which Mr. Clark had left the house. While it was accepted that dismemberment was relevant to the issue whether a murder had occurred, the fact of its occurrence did not necessarily lead to the conclusion that there had been a murder.

[11] Senior counsel recognised that the Crown had relied upon the confessions referred to at page 12 of the charge. It was also accepted that the trial judge had said to the jury that they required to accept that one or other of the confessions was made by the appellant and that it amounted to a confession of murder, before there could be a conviction of murder. However, it was submitted that the trial judge had put the cart before the horse, since he had referred to "murder". The correct approach would have been for the trial judge to say that a controversial question in the case was whether there had been a murder at all.

[12] Senior counsel characterised the case as convoluted. There had been several interruptions of the trial, on account of the poor health of the appellant, as appeared from the trial judge's report at page 5. That circumstance was significant, since it increased the need for the trial judge to focus the controversial issues for the benefit of the jury. Even if the jury were to have accepted that the words spoken by the appellant had amounted to a confession of murder, if in fact there had been no murder, there could be no case against him. Yet the judge had not appeared to recognise that truth. He referred to "the murder", making a presumption that such had occurred.

[13] Senior counsel went on to refer to details of the evidence, including that of the three nurses at the Vale of Leven Hospital who said that they had heard horrendous screaming at about 1.25 a.m. on 8 May 2002. The Crown had invited the jury to conclude that the screaming had been associated with the murder. There were also issues as to the movement of Bryan Galloway, the incriminee, at or about that time.

[14] Part of the background was that, at some point, the female deceased's body had been dismembered and a portion of it had been burned on a fire by the appellant, in the presence of his dog. It was not disputed that he had helped in the disposal of body parts, but there was no evidence to show when and how the body had been dismembered. There was an acceptance of guilt in terms of charge (2)(c). Such a plea had been tendered at the outset of the case and at the end of the Crown case.

[15] Senior counsel recognised that the speeches in the case had occupied a whole day, so that the jury had had the benefit of detailed submissions about the facts of the case. There was no obligation on the trial judge to go over the whole of the ground covered in the speeches. However, the fatal flaw in his charge was that he failed to outline the critical issue of whether there had been a murder. If the jury had been directed, as desiderated by the appellant, they could well have concluded that no murder had occurred.

[16] The words used by the appellant in the so-called confessions were open to interpretation. They could be interpreted as a confession to murder, but it was possible to take another view of them. Senior counsel submitted that that material could not be used as a starting point in the proof of murder.

[17] Senior counsel then proceeded to support ground of appeal 2. The submission of no case to answer made in relation to charge (1) had been wrongly rejected. The opinion of the three pathologists involved in the case had been that the cause of the death of the deceased was unknown and unascertainable. There was no sufficient evidence that a murder had occurred. This ground of appeal was related to ground 4. There had been no evidence of concert related to charge (1). If Bryan Galloway had committed the murder, there was no evidence showing concert between him and the appellant. The Crown had failed to exclude Bryan Galloway as the perpetrator of any murder.

[18] Senior counsel next considered the appellant's ground 1. It was contended that the trial judge had wrongly dismissed an objection to the line of evidence, thus allowing irrelevant and prejudicial material to go before the jury in an alleged statement by the appellant, which had not been given under caution and which therefore had been unfairly obtained. The objection related to two statements taken from the appellant, Crown productions 24 and 26. In these statements there were references to the appellant slaughtering sheep and taking a leg off an animal. Not only were they prejudicial, but they had been unfairly obtained and contained irrelevant material. Senior counsel agreed that, at the time when these statements were taken, the appellant had not been in the category of a suspect; no charge was contemplated against him at that time. However, while he had only been a witness and not a suspect, he had been the subject of persistent and ongoing questioning. However, the fundamental point was that references to the appellant's youthful employments were, in the circumstances of the case, irrelevant.

[19] Senior counsel next proceeded to consider ground of appeal 3. He explained that he had made a submission to the trial judge that the sub-heads in charge (2) were, in essence, separate charges and that a submission of no case to answer could therefore be made in relation to each sub-head independently of the others. However, he agreed that some of the sub-heads in that charge did not, in fact, libel criminal offences. Nevertheless, where there was a criminal offence libelled in a sub-head, it ought to be possible for a submission to be made.

[20] At this point in his submissions, senior counsel reverted to a consideration of ground of appeal 4. He stated that there was some authority which might be of assistance to the court. In particular, he relied upon Renton and Brown, 6th edition, paragraph 29-30.1, where there was a quotation from McPhelim v H.M. Advocate 1960 J.C. 17 at page 21. He also relied on Broadley v H.M. Advocate 2005 SCCR 620. The latter case was of relevance, since, on appeal, the court held that there had been no evidence available to the effect that the deceased had in fact been murdered. In the present case there had existed a possible explanation of the death of the deceased different from murder; accordingly the issue of whether murder had occurred or not was absolutely vital.

[21] Senior counsel also relied upon Withers v H.M. Advocate 1947 J.C. 109. At page 114 Lord Justice General Cooper expressed the view that, while murder might be proved by a process of elimination, if something was left unexplained or in mystery, the process of elimination was incomplete. That is just what had happened here. Matters had been left "in mystery" as to how the death of the deceased had occurred. Senior counsel also relied upon Regina v Cannings [2004] 1 WLR 2607.

[22] Finally, senior counsel made submissions in relation to ground of appeal 5. The point here was that John Thomas McCormack, a former co-accused of the appellant, had been an incriminee. There had been evidence of statements made by him, which amounted to evidence against himself. On 23 November 2004, the trial judge had sustained a submission of no case to answer made on his behalf. Against that background the trial judge quite properly directed the jury that any statement made by John Thomas McCormack was not evidence against the appellant. However, he had then gone on to say that the jury should put anything that he had said to the police out of their minds. It was submitted that was a misdirection. The jury should have been directed that the statements made by him were evidence in the case, which might be capable of raising a reasonable doubt in the minds of the jury as to the appellant's guilt. Senior counsel recognised, however, that once John Thomas McCormack ceased to be an accused person, any statements made by him were simply the hearsay statements of an incriminee. By excluding the statements, however, the trial judge had excluded from the jury's consideration information which might point to a murder committed by John Thomas McCormack. Senior counsel recognised that Perrie v H.M. Advocate 1991 J.C. 27 constituted an obstacle to the success of this submission.

 

Submissions of the Crown

[23] The Advocate depute indicated that she would deal with the grounds of appeal in order. In relation to ground 1 she submitted that the trial judge's decision to repel the objection was correct. That decision had been taken following a trial within a trial. The transcript of the evidence of Detective Sergeant Michael McCormack was available. He had given evidence that, as at the date of the statement which was Crown production 24, the appellant had been a witness, not a suspect. There had been no challenge to that evidence. It followed that there was no need for a caution to have been administered to him. In any event, it had been accepted by senior counsel for the appellant that, at material times, he was not a suspect.

[24] Turning to the issue of the relevance of the statements concerned, having regard to the fact that charge (2)(a) alleged that the appellant had dismembered the body of Amy Frances Doreen Anderson, it was plainly relevant to adduce evidence to show that the appellant had had experience of the slaughter and butchery of animals. Further, the appellant had been identified as being involved in the burning of certain material on a bonfire on the bank of the River Leven, which had produced a foul smell and in which the appellant's dog was interested. Certain body parts had been burned and charred. In addition, there was evidence from a post mortem examination regarding how the flesh of the deceased had been cut and how the bones had been snapped. The statement, Crown production 26, showed that the appellant had had experience in the butchering of deer, in which bones were snapped at joints.

[25] Moving on to ground of appeal 2, the Advocate depute submitted that the trial judge had been correct to repel the motion of no case to answer made on behalf of the appellant. The Crown relied upon the evidence of the pathologists and the whole surrounding circumstances to demonstrate that there was sufficient evidence against the appellant. So far as the former was concerned, there were indications of bruising before death and no evidence of death having been caused by natural causes. There was no evidence of disease and no evidence of the presence of significant amounts of controlled drugs in the body. Further, petechial haemorrhages were identified in the lungs of the deceased, which were seen as consistent with asphyxia. Furthermore, there had been evidence from Dr. Louay al-Alousi, a consultant forensic pathologist, that the commonest cause of asphyxia was compression of the neck.

[26] As regards the surrounding circumstances, there was the fact of dismemberment. One had to ask why a body had been dismembered. That suggested a homicide, followed by an attempt at disposal of body parts. Furthermore, the appellant had made certain admissions which could reasonably be interpreted as admissions of responsibility for murder. The Crown had drawn attention to the screams in the grounds of the Vale of Leven Hospital for what value they might have.

[27] In all the circumstances there was ample evidence amounting to a case of murder against the appellant.

[28] As regards the second element of ground 2, the contention that there was no evidence of concert involving both accused, that contention led nowhere. The approach taken by the Crown at the trial was that the appellant had been the principal actor, as evidenced by his admissions. That was consistent with his attempt to burn something which was likely to have been body parts on the bank of the River Leven in the early hours of 8 May 2002. Also the appellant had admitted disposing of parts of the body of the deceased. He had taken them to an area of the River Leven opposite which the pelvis of the deceased had been discovered. Further, he had admitted transporting body parts in a pram. Remains of such a pram were found in the area concerned. The deceased's jacket, worn at the time of her disappearance, had been found in the appellant's container, in which he lived at the material time. In addition, the appellant had been in possession of the deceased's benefits book, later given to the police, which he claimed to have found in an area which had previously been thoroughly searched by the police with no significant outcome. All these features, the Crown argued, amounted to a case against the appellant as principal actor.

[29] The third element in ground of appeal 2 was a submission that it was for the Crown to exclude the special defence of incrimination lodged by the appellant of Bryan Galloway. It was contended that the Crown had failed to exclude the special defence. The position of the Crown was that such a contention was not apt in the context of a submission of no case to answer. If sufficient evidence had been led, that justified the refusal of the motion. In the end of the day, if the Crown were to prove guilt to the satisfaction of the jury, they required to do so in a context in which any evidence relating to the special defence was before it. In any event, the Crown had led evidence to the effect that the incriminee had been in hospital between 6 and 8 May 2002. At the time when the murder was to be taken to have occurred, the incriminee was resident in the hospital. It was recorded that he had slept well. Finally, in this connection, the appellant had given a statement to the police in which it was accepted that he had told lies regarding Bryan Galloway.

[30] Proceeding next to deal with ground of appeal 3, the Advocate depute submitted that there was no substance in this contention. The sub-paragraphs in charge (2) could not be seen as amounting to separate charges, if for no other reason than that, in the case of certain of those sub-paragraphs, there was no averment of a criminal offence. That was true of sub-paragraphs (d) and (e). The proper approach to charge (2) was that taken by the trial judge that the charge was a unitary charge of an attempt to pervert the course of justice. That was an answer to the whole of this ground of appeal.

[31] The Advocate depute went on to deal with the appellant's ground 4. She submitted that the trial judge had made it quite clear to the jury that there were two matters that the Crown required to prove by corroborated evidence. These were: (1) the commission of the offences alleged, and (2) the involvement of the accused in the commission of those offences. No doubt the trial judge could have expanded upon the formulation by drawing attention to the controversy that surrounded the issue of whether a murder had been committed, but what he had said at page 9 of his charge was quite sufficient, particularly in the context of the jury having very recently heard elaborate speeches, which extended over a period of a whole day. The jury could have been in no doubt of the issues that were in controversy between the Crown and the appellant. The extent to which a judge focused issues in controversy for the benefit of a jury was a matter within his discretion. The trial judge here had not erred in any respect. While there had been certain interruptions in the trial at an early stage, by the time that the latter part of the trial had been reached, it ran continuously. In the submissions made to the court something had been made of the medical evidence in the case; it had been suggested that the Crown had not excluded other possible causes of death. The Advocate depute submitted that the Crown had led evidence from which it could readily be inferred that a murder had been committed. An important element of the evidence was the admissions of the appellant, which were quite capable of being interpreted as admissions of murder. The jury had properly been directed that if they were not satisfied that either of those admissions was of that nature, the case could go no further.

[32] So far as the evidence of William Clark was concerned, he had described the deceased being in the house which he had visited. However, at the end of his cross-examination, his evidence was in a very confused and inconsistent state. It was submitted that he was an unreliable witness to whose evidence the jury would have been entitled to attribute little weight. Plainly the Crown had been under no obligation to lead that evidence. Even if there had been such an obligation, the fact of the matter was that the evidence had been led and so no miscarriage of justice could flow from the failure of the Crown to lead the evidence.

[33] Finally the Advocate depute turned to ground of appeal 5 which related to the statements of the former co-accused John Thomas McCormack. These related to, among other things, his cutting up a "wee bird". Senior counsel for the appellant had accepted that the decisions in Perrie v H.M. Advocate 1991 S.C.C.R. 255 and McLay v H.M. Advocate 1994 S.C.C.R. 397 were against him. On the basis of these cases, the latter of which was a decision of a court of five judges, it was quite plain that when the evidence concerning the statements was led, it was admissible, since John Thomas McCormack was a co-accused of the appellant. When he ceased to be a party to the case upon the sustaining of his motion of no case to answer, the evidence, although it was before the jury, became hearsay evidence not available for any purpose. Accordingly, the trial judge had quite correctly told the jury to ignore it.

 

The decision

[34] We shall deal with the appellant's grounds of appeal in the order in which they appear in the Note of Appeal. As regards ground 1, two contentions were made: first, that the statements, Crown productions 24 and 26 should not have been admitted, since they were unfairly obtained, the appellant not having been cautioned prior to his giving the statements; second, that, in any event, the statements were irrelevant. In relation to the first of these points, we note that senior counsel for the appellant agreed in the course of the argument before us that, at the time when the statements were taken, the appellant did not fall into the category of being a suspect. In any event there was evidence to that effect from Detective Sergeant Michael McCormack, which was available to the court. Against that background, we can see no reason why a caution should have been administered to the appellant prior to his giving the statements in question. No such reason was advanced to us. All that was said was that the appellant was subjected to "persistent and ongoing questioning". In these circumstances, in our opinion, the objection taken to the admission of the statements upon the basis that they had been unfairly obtained because no caution had been administered is without substance.

[35] Turning to the issue of the relevance of the statements in the context of the trial, it is to be noted that in charge (2)(a) the allegation was made against the appellant that he had dismembered the body of Amy Frances Doreen Anderson. In the context of such an allegation and of evidence concerning how the dismemberment had been achieved, we consider that the material contained in the statements was plainly relevant to the issues in the case, involving as it did descriptions of the experience of the appellant in slaughtering animals and butchering them. Accordingly, we consider that there was no substance in the objection to the relevance of the contents of the statement. In all these circumstances the trial judge was correct in repelling the objections taken to their admission.

[36] Turning next to ground of appeal 2, it is to be observed that it contains three distinct contentions. The first of these is to the effect that the appellant's submission of no case to answer should have been sustained because the Crown had failed to lead sufficient evidence that a murder had been carried out, for which the appellant was responsible. In our opinion there is no substance in this contention. Perhaps the starting point in this connection is the fact that there was evidence led by the Crown of certain statements made by the appellant which were quite capable of being construed as admissions of murder. In addition to that, there was a quantity of circumstantial evidence supporting the Crown's case, which was narrated in detail to us by the Advocate depute. We single out of that circumstantial evidence the evidence concerning the involvement of the appellant in the bonfire on the bank of the River Leven when what appears to have been a body part was attempted to be burned. In addition, there is, of course, the fact of the dismemberment of the body of the deceased, which, in the context, gives rise to the inference that the deceased was murdered. We also mention the possession by the appellant of the deceased's benefits book, associated with an explanation which the police evidence demonstrates must have been false. Furthermore, there was forensic evidence to show that the deceased was likely to have been subjected to violence prior to death and that asphyxiation might have been involved, in view of the presence of petechial haemorrhages in her lungs. In these circumstances we reject the first part of this ground of appeal.

[37] The second part of the ground of appeal was to the effect that there was no evidence of concert involving the appellant and his former co-accused, John Thomas McCormack. While that might be so, one has to ask whether that state of affairs has any consequence. In our view it does not. The Crown case directed against the appellant was that he was the principal actor in the offences concerned. That position is quite consistent with the evidence to which we have referred in connection with the first part of this ground of appeal, including the evidence upon which the Advocate depute relied in making the submission to us. In these circumstances we conclude that the fact, if fact it be, that there was no evidence of concert involving both accused is simply an irrelevance.

[38] The third part of this ground of appeal involves the contention that the Crown had failed to exclude the special defence of incrimination raised by the appellant. We have difficulty in understanding the relevance of this contention in the context of consideration of whether the trial judge was or was not correct to sustain a motion of no case to answer. The issue for him in that context was whether the Crown had led sufficient evidence to constitute a case for the appellant to answer. In the event of the Crown's case going before the jury, the question would then arise of the significance of any evidence led in support of the special defence, but the question would still remain whether the Crown had proved their case to the requisite standard. In these circumstances we reject this part of this ground of appeal.

[39] In ground 3, it is contended that the trial judge wrongly took the view that charge (2) was a unitary charge and that accordingly it was not possible for submissions of no case to answer to be made in relation to the individual sub-paragraphs of that charge. In our opinion, this contention is unsound. One only has to examine the nature of charge (2) to see that a number of the sub-paragraphs do not involve the allegation of any criminal offence at all. That leads us to the conclusion that the nature of charge (2) is that it is a unitary charge of an attempt to pervert the course of justice and must be treated as such. Accordingly, in our opinion, the trial judge was correct to view the charge as a unitary charge. In these circumstances the issues raised in the latter part of this ground of appeal do not arise.

[40] In ground 4, the contention is advanced that the trial judge misdirected the jury by failing to give them adequate directions as to how to approach the evidence in charge (1). As this ground was developed in argument, the criticism focused was that the trial judge had failed to direct the jury that one of the main controversial issues in the case was whether a murder had been committed at all. In assessing this contention, first of all, it has to be recognised that, as was said in McPhelim v H.M. Advocate, " ... a good charge ... ought to be one addressed to the fifteen people in the jury box, and not to the Court of Appeal." What assistance a trial judge does or not give to a jury in focusing the controversial issues in the case is very largely a matter within his or her discretion. In this case, at page 9 of the charge the trial judge pointed out that there were two matters that the prosecution had to prove by corroborated evidence. The first was "that the crime charged was committed at all" and secondly, "that it was the accused who committed it". In our view, in saying that, the trial judge was making it clear to the jury that the issue of whether the crimes charged were committed at all was one for them, which the prosecution had to prove by sufficient evidence. While, no doubt, the trial judge might have gone further in elaborating the matters which were in controversy between the parties, we do not consider that he can be criticised for not having done so, particularly in the context in which he delivered his charge. As he observed at page 12 of the transcript of the charge, the jury had heard the evidence at great length and had heard two excellent speeches from the Advocate depute and senior counsel of the appellant in which the evidence was analysed. We cannot suppose that, in that context, the speeches having lasted throughout the day preceding the delivery of the charge, the jury were in any doubt whatever regarding the issues that were controversial, which they had to decide. In these circumstances we reject this criticism of the trial judge.

[41] We do not find the case of Broadley v H.M. Advocate, relied upon by the appellant, as of any assistance in the context of this case. The deceased there had been seen hanging from a window ledge of which she later released her grip, falling to her death. The issue in the case was whether there had been sufficient evidence of murder. It was held that there had not, since it had never been established what were the means whereby the deceased had been caused to go out through the window.

[42] In ground 5 misdirection is again alleged, this time in connection with the effect of the acquittal of the co-accused, John Thomas McCormack, following the sustaining of his submission of no case to answer. At page 6 of the transcript of the charge, the trial judge said this:

"We heard a certain amount of evidence, ladies and gentlemen, of what Mr. McCormack - who is no longer in the dock - said to the police. Nothing in what Mr. McCormack said to the police can possibly be evidence against Mr. McArthur so put anything Mr. McCormack said to the police out of your minds."

It was submitted to us that that passage in the charge amounted to a misdirection. The contention was that Mr. McCormack had made several admissions to the police which were evidence against him, an incriminee. It was contended that the jury should have been directed that the statements were, in some way, evidence in the case, even after the acquittal of Mr. McCormack. We are quite unable to agree with that contention. While Mr. McCormack remained an accused person, it was plainly open for the Crown to lead evidence of the contents of statements made by him. They were evidence against him, although not, of course, against the appellant. However, upon his acquittal, in our view those statements became hearsay evidence of an incriminee. On the basis of the cases of Perrie v H.M. Advocate and McLay v H.M. Advocate it is quite clear that such evidence is not admissible. The consequence of that is that, so far as the appellant was concerned, following the acquittal of Mr. McCormack, that evidence was not available to him for any purpose. In substance, that is what the trial judge said to the jury at page 6 of the transcript of the charge. In our view that direction was quite correct. In these circumstances we reject this ground of appeal.

[43] In the whole circumstances we have concluded that there is no merit in any of the grounds of appeal against conviction. Accordingly, the appeal against conviction is refused. It will be necessary for the case to be adjourned for a hearing of the appellants' appeal against sentence.

 


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