Cameron v HM Advocate

Eo die, at advising, the appeal was refused. The following opinion of the court was subsequently delivered by the Lord Justice-General (Lord Emslie).

Opinion Of The Court.—After trial on indictment the appellant was convicted of charges (1), (2) and (4) of an amended indictment. These charges were in the following terms: [their Lordships quoted same, charge (1) being the theft of petrol and a petrol cap, and continued thereafter.]

The theft libelled in charge (1) was from the car of the victim named in charge (2).

In this appeal after his conviction of the two charges of murder, the supplementary (revised) grounds of appeal are in the following terms: [their Lordships quoted same and continued thereafter.]

It will be seen that the essential underlying proposition is that on the basis of the existence and significance of certain additional evidence not heard at the trial there was a miscarriage of justice. When this appeal first came before the court, we heard submissions designed to persuade us to exercise our power under sec. 252 of the Criminal Procedure (Scotland) Act 1975 to hear the additional evidence. What we had to decide under reference to sec. 228 (2) of the Criminal Procedure (Scotland) Act 1975 was whether the additional evidence which was concerned only with alleged sightings of the victim in charge (2) (Kay Wyllie) shortly before the time when she must have been killed could be regarded as evidence which was not available and could not reasonably have been made available at the trial and, further, upon a consideration of the content of precognitions of Mrs Steed, Hugh Steed, John Penman, Alexander Rennie and Isobel Green, whether the alleged additional evidence was, prima facie, of materiality. In the result, although we had considerable doubt whether the evidence of Mrs Steed was not available and could not reasonably have been made available at the appellant's trial and some hesitation about the materiality of this new evidence, we decided that we should accept that the evidence of all the witnesses passed the initial tests prescribed in sec. 228 (2). The important considerations in our decision were that upon the precognitions submitted to us it appeared (1) that the witness Mrs Steed believed that at about 1 a.m. on 4th July 1984 she had seen the girl, Kay Wyllie, whose photograph she later saw in the Ayrshire Post, driving a white Mini, of X registration travelling south, at a pedestrian crossing on the Prestwick to Ayr road near Safeway, accompanied by a young man of a particular description who was not the appellant; (2) that the witness John Penman believed that he too had seen the same girl a very short time later in Curley Chip Shop in Crown Street, Ayr, again accompanied by a young man of a description very similar to that contained in Mrs Steed's precognition; and also that we were told by counsel for the appellant that the evidence led at the appellant's trial had been to the effect that Kay Wyllie's death at Dunure had probably occurred between 1 a.m. and 2 a.m. on 4th July 1984.

Having taken that decision we continued the hearing for the extension of the notes of evidence given at the trial. The notes are now available and we have now heard evidence from the witnesses tendered on the appellant's behalf and from certain further witnesses led by the Crown. Before considering that additional evidence and our assessment of its significance we propose, by way of background, to summarise the important evidence on which the Crown case before the jury depended and which must have been accepted by the jury.

It was not disputed at the trial that Kay Wyllie had been murdered on 4th July 1984 in the manner described in charge (2) and it was not disputed either that Nancy Nicol had been murdered on 2nd or 3rd May 1985 in the similar manner described in charge (4). The question for the jury was whether they were satisfied beyond reasonable doubt upon the...