William Frederick Ian Beggs V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Eassie,Lord Bannatyne |
| Neutral Citation | [2010] HCJAC 27 |
| Court | High Court of Justiciary |
| Published date | 10 March 2010 |
| Year | 2010 |
| Docket Number | XC997/03 |
| Date | 09 March 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Eassie Lady Paton Lord Bannatyne | [2010] HCJAC 27 XC997/03 OPINION OF THE COURT delivered by LORD EASSIE in Appeal by WILLIAM FREDERICK IAN BEGGS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Alt: Mulholland Q.C., Solicitor General, Balfour; Crown Agent
9 March 2010
[1] On 12 October 2001 at a sitting of the High Court of Justiciary in Edinburgh the appellant was convicted of the murder of Barry George Wallace in December 1999. The terms of the charge of which the appellant was found guilty by the jury were as follows:
"on 5 or 6 December 1999 at 2B Doon Place, Bellfield, Kilmarnock you did assault Barry George Wallace, 38 Cumbrae Drive, Kilmarnock, place handcuffs on his arms and legs, struggle with him, punch him on the face, restrain him, puncture his arm with a needle or similar instrument and penetrate his hinder parts with your private member, all to his severe injury and you did murder him and further you did dismember his body and dispose of the dismembered parts in Loch Lomond, Stirlingshire, and in the sea at Barassie, Troon, Ayrshire."
The appeal process
[2] Given the time which has flowed since the appellant's conviction, it is appropriate to say something of the steps which have occurred in this regrettably protracted appeal process.
[3] In brief, on 2 July 2002 the appellant lodged a note of appeal. Following the obtaining from the trial judge of the requisite report, the matter was in due course considered by a single judge who, on 20 December 2002, granted leave to appeal but only as respects certain grounds, which the single judge sought to identify by the exclusion of certain paragraphs of the rather lengthy and discursive note of appeal. The appellant then required the application for leave to be considered, as respects the excluded paragraphs, by a triumvirate "second sift" bench. That bench refused to grant leave for any of the excluded grounds. The appellant thereafter brought a petition to the nobile officium of the High Court of Justiciary challenging that second sift decision. The decision in that petition - issued on 8 December 2004 - identified that where an applicant for leave to appeal is dissatisfied with a decision of a single judge allowing some, but refusing other, grounds of appeal to be argued the correct procedure to be followed is an application under Section 107(8) of the Criminal Procedure (Scotland) Act 1995 and that the further application to the "second sift" followed in the present case, albeit no doubt common practice at the time - was incompetent. The decision is reported as Beggs petitioner 2005 JC 174; 2005 SCCR 47.
[4] Following that decision, the appellant duly lodged an application in terms of Section 107(8) of the 1995 Act, which was heard on 28 October 2005 and in consequence of which the court, on 25 November 2005, granted leave to argue certain additional grounds. The decision - [2005] HCJAC 131 - is reported at 2006 SCCR 25. The court then invited the submission of reformulated grounds of appeal framed in light of the initial sift decision and its decision of 25 November 2005 and such reformulated grounds of appeal were duly lodged with the court on 16 January 2006. With the exception of an additional ground of appeal tendered only at the opening of the hearing before us, to which we shall subsequently refer - those reformulated terms are the grounds of appeal which form the basis of this appeal. The formal interlocutor allowing those reformulated grounds of appeal to be the grounds of appeal was pronounced on 11 July 2006.
[5] Notwithstanding that the grounds of appeal had thus eventually been reformulated and settled and allowed to be argued in July 2006, those acting for the appellant then embarked upon a lengthy process of seeking various orders for disclosure of documents and information from the Crown. It would not be profitable to recount the details of this exercise. It suffices to say that the insistence of those acting for the appellant in that exercise has, so far as it is possible to tell, had little significant result but it has substantially delayed the hearing of this appeal. Only on 6 May 2009 did counsel for the appellant withdraw his applications for orders for disclosure and for recovery of documents, thus enabling a hearing of the appeal to be fixed. At a cost no doubt to the progress of the cases of other appellants, the court was able to arrange for the appeal to be heard over eight days in mid-October 2009.
The factual background and the circumstances of the case
[6] On the evening of Saturday 4 December 1999, the deceased, Barry George Wallace, who was then aged 18 years, and was employed in a supermarket in Kilmarnock, attended a Christmas function for employees of the supermarket in an hotel in Loudoun Road, Kilmarnock. By all accounts he consumed a great deal of alcoholic drink. He left the hotel shortly after 0100 hours on Sunday 5 December 1999 and set off on foot towards the town centre of Kilmarnock. He was seen to be staggering and to fall in his drunken state. He was given a lift in a motorcar to the town centre by others who had attended the Christmas party and was dropped off in the town centre, near the shop premises occupied by Marks & Spencer Plc. Barry Wallace was then involved in an altercation with a friend, Graham Boax, resulting in some form of exchange of punches to the detail of which we shall have to revert but the two youths made up and apparently shook hands. Shortly thereafter Barry Wallace was observed at the entrance to a nightclub called "Expo" at about 0130 hours on Sunday 5 December. That was the last sighting of him by any of the witnesses at the trial. He did not return home and did not turn up for work on Monday 6 December 1999. He was then reported to the police as a missing person.
[7] As it happened, on the morning of Monday 6 December 1999 a number of police officers from an underwater search unit from Central Scotland Police were engaged in a training exercise involving diving in the waters of Loch Lomond near Rowardennan Pier. Operations began between 1000 and 1030 hours. In the course of the exercise, one of the members of the underwater search unit came across two plastic bin liner bags submerged in the water. One bag contained a human hand and associated part of the arm; the other a human foot and associated part of the leg. These discoveries prompted further searches of Loch Lomond. On Tuesday 7 December 1999 part of an arm, with hand attached, was found; and on the following day, Wednesday 8 December 1999, part of a human leg and thigh was discovered, again in the area of the pier at Rowardennan. On Friday 10 December 1999 searches conducted in the water in the area of the pier at Balmaha resulted in a recovery of part of a lower leg with the foot attached. On Wednesday 15 December 1999, as a result of the interest in it shown by her dog, a member of the public reported the finding of a human head, partially contained in a plastic shopping bag, which appeared to have been washed up by the sea on the beach at Barassie, near Troon. Roughly three weeks later, namely on 8 January 2000, as a result of further searches in the waters of Loch Lomond, a human torso was recovered in Manse Bay, some 1.5 miles distance from Balmaha.
[8] Scientific examination of the body parts, using DNA techniques, demonstrated that they were all parts of the body of Barry Wallace. Post mortem examination revealed certain pre-mortem injuries, including bruising to, and fractures of, the underlying bones of the face; areas of extensive bruising around the anus and in the rectal mucosa; linear marks on the wrists and ankles consistent with these having been caused by the application of handcuffs; and a puncture mark on one of the arms, consistent with that having been inflicted by a needle. But the pathologists were unable on the basis of the autopsy findings to determine any definite cause of death.
[9] On the basis of certain information conveyed to him by the police (to which we shall revert), on 16 December 1999 the procurator fiscal in Kilmarnock sought and obtained from the sheriff a search warrant and pursuant thereto on the following day, 17 December 1999, the police conducted a search of a dwelling tenanted by the appellant at 2B Doon Place, Bellfield, Kilmarnock. In the course of that search, a number of matters of significance were discovered. Among these were quantities of blood which were shown to have come from the now deceased. It was apparent from the findings of the search that part of the decorative fabrics in the apartment had recently been replaced. Carpets had also been removed and replaced. It appeared that the polythene bag in which the head of the deceased had been found was of a type similar to polythene bags which were found in the dwellinghouse of the appellant, the bags being of a distinctive design, being, as we were informed, that of the DFDS ferry line.
[10] At the trial, evidence was led of the appellant's movements both in the days immediately after 5 December 1999 and after the search of his flat in Kilmarnock. In short, the appellant, who was employed in a post in Edinburgh, did not attend for work on Monday 6 December 1999. On Tuesday 7 December 1999 having attended work for a short time before leaving complaining of sickness, the appellant went by ferry from Troon to Northern Ireland (whence he originated and where members of his family resided). There was some evidence led at the trial regarding tidal movements in the Firth of Clyde supportive of the possibility of those movements carrying an article, jettisoned as the ferry left Troon towards Northern Ireland, to the Barassie beach. On 10 December 1999 the appellant returned to Scotland via Stranraer, but travelled back to Belfast the following day, again via Stranraer. On 12 December...
To continue reading
Request your trial
- Walker v HM Advocate
-
Application Under The Double Jeopardy (scotland) Act 2011 By Her Majesty's Advocate Against (first) Ronnie Coulter; (second) Andrew Coulter; And (third) David Montgomery
...2 AC 72; [2004] 2 WLR 1; [2004] 1 All ER 1049; [2004] HRLR 16; [2004] UKHRR 193; [2004] 1 Cr App Rep 25; 15 BHRC 472 Beggs v HM Advocate [2010] HCJAC 27; 2010 SCCR 681; 2010 GWD 14–259 Black v HM Advocate [2006] HCJAC 11; 2006 SLT 685; 2006 SCCR 103 Brown v HM Advocate 1993 SCCR 382 Carberr......
-
The Reverend Donald Smith As Moderator Of The General Assembly Of The Free Church Of Scotland And Others V. The Reverend John Morrison And Others
...and orsELRWLR [2011] UKSC 46; 2012 SC (UKSC) 122; 2011 SLT 1061; [2012] 1 AC 868; [2011] 3 WLR 871; [2012] HRLR 3 Beggs v HM AdvocateUNK [2010] HCJAC 27; 2010 SCCR 681; 2010 GWD 14-259 Bellingham v Todd [2011] CSOH 74; 2011 SLT 1124; 2011 Rep LR 68 Black v North British RlyENR 1908 SC 444; ......
-
William Beggs V. Her Majesty's Advocate
...on 29 and 30 September and 1, 2 and 6 to 9 October 2009. At advising, on 9 March 2010, the court refused the appeal against conviction ([2010] HCJAC 27; 2010 SCCR 681). The applicant sought leave to appeal to the Supreme Court, which was refused by the High Court of Justiciary on 27 May 201......
-
Margaret L Ross and James P Chalmers, WALKER AND WALKER: THE LAW OF EVIDENCE IN SCOTLAND Haywards Heath: Tottel Publishing (www.tottelpublishing.com), 3rd edn, 2009. ci + 616 pp. ISBN 9781845921651. £120.
...profession and the third edition has already been used as an authority in court on a number of occasions (see e.g. Beggs v HM Advocate [2010] HCJAC 27 at paras 50, 51 and 56 and HM Advocate v M 2010 SLT 5 at paras 6–8 in the criminal context, and McGraddie v McGraddie [2009] CSOH 142 at par......