Patrick Docherty Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lady Clark Of Calton,Lord Justice General |
| Neutral Citation | [2014] HCJAC 94 |
| Docket Number | XC477/13 |
| Date | 29 August 2014 |
| Court | High Court of Justiciary |
| Published date | 29 August 2014 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2014] HCJAC 94
XC477/13
Lord Justice General
Lady Smith
Lady Clark of Calton
OPINION OF THE LORD JUSTICE GENERAL
In the Referral by
THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION
in the case of
PATRICK DOCHERTY
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
For the appellant: Mitchell, Brown; John Pryde & Co SSC, Edinburgh
For the Crown: Prentice QC (sol adv), AD; Crown Agent
29 August 2014
Introduction
[1] This is an appeal against conviction following upon a referral to this court by the Scottish Criminal Cases Review Commission (the Commission). On 1 March 2005 the appellant was convicted, along with his co-accused Brendan Dixon, of the murder of Mrs Margaret Irvine at her home in Galston. The Crown case was largely circumstantial; but there was evidence of a statement by the appellant that could be said to display special knowledge. The following is the detailed rehearsal of the evidence that was given by this court when it refused the appellant’s first appeal against conviction in 2010 (Patrick Docherty and Brendan Dixon v HMA [2010] HCJAC 31):
“[2] The victim, a 91-year-old lady, had been found dead in her home at 21 Barward Road, Galston at 4.50pm on Sunday 28 September 2003. She had head injuries, a broken rib, and bruising on the right hand, arm, left wrist and thumb. She had been gagged with a duster and left lying face down on her bed with her hands tied behind her back. The cause of death was asphyxiation. Ultimately the two appellants and Colin Miller were charged with murder. The Crown case was a circumstantial one. Each appellant lodged a Special Defence of Alibi. The first appellant maintained that he had been in his house with his partner Irene Rowan and her daughter on Saturday night and Sunday morning (27 to 28 September 2003). The second appellant’s position was that he had been at his sister’s house on Saturday night and Sunday morning. During the trial, the judge refused a “no case to answer” submission made in respect of each appellant. The appellants were convicted and sentenced to life imprisonment. Colin Miller was acquitted not proven. Both appellants appeal against conviction, contending that the circumstantial evidence was insufficient to convict them; that there was non-disclosure of police statements given by crown witness number 22 Sheena Orr; alternatively Mrs Orr’s police statements comprised fresh evidence, and in a further alternative there had been defective representation in that the defence had not obtained the information available in those police statements; and finally in the case of the second appellant, that there had been a misdirection relating to corroboration and inappropriate treatment of two defence witnesses by the trial judge.
[3] The evidence established that Mrs Irvine was a frail but strong-willed lady who lived alone in a semi-detached two-storey house at 21 Barward Road, Galston. She needed a Zimmer and an electric stair lift. Carers called regularly to help her with meals and self-care. Once the carer had unlocked her door, Mrs Irvine preferred to leave it unlocked to allow people to come in and out. Mrs Irvine’s nephew Charles Keers (aged 51) lived in the semi-detached house next door.
[4] Some six weeks prior to Sunday 28 September 2003, Mrs Irvine’s house had been broken into and money and jewellery stolen. That incident was reported in the press, and discussed locally. Thus it was known that Mrs Irvine kept significant amounts of cash in the house.
[5] Early in the morning of Sunday 28 September 2003, one of Mrs Irvine’s week-end carers arrived at 7am and gave her breakfast: half a roll with butter, and a cup of tea. Mrs Irvine was wearing her nightdress and was sitting up in bed. She ate breakfast in bed, and told the carer that she intended to have a lie-in. When the carer left at about 7.25am, the bedside light was on. Later that Sunday, at about 4.50pm, another carer arrived. Mrs Irvine would normally have been in the living-room at that time, but she was not there. The carer went upstairs and found Mrs Irvine slumped face-down on the bed. She was wearing a nightdress and pants. Her hands were at her back. The carer went to a neighbour who called the police and an ambulance. It was found that the electricity at 21 Barward Road had been switched off at the mains; the downstairs telephone had been disconnected; a Zimmer frame had been moved from the floor of the stair-lift in the hallway, and was not readily accessible to the stair lift-user; a yellow duster was also found in the hallway; drawers in the living-room were partially opened and a musical jewellery box was open and items strewn about; in the spare bedroom, drawers were partially opened, and a musical jewellery box open; in the main bedroom the pillows on the bed were out of place and a hand-bag lay under a pillow. It was also found that Mrs Irvine had her hands tied behind her back; one plate of her dentures was in her left hand, and the other plate was on the bed; a yellow duster had been forced into her mouth and throat. The police subsequently found a key to a wardrobe, which contained cash amounting to almost £9,000. The DNA of an unidentified male was found on Mrs Irvine’s pinkie. Unidentified footprints were found outside the house. There was no forensic evidence linking the crime to either appellant …
[9] On the day of the incident, Sunday 28 September 2003, Alison Rowan (aged 19) the daughter of the first appellant’s partner Irene Rowan, saw the first appellant coming into his house at 21 Knowehead Road, Hurlford, at 11am. He was then physically sick. By contrast, Irene Rowan gave evidence that the first appellant had been in the house all morning and that he was in good health, although in prior inconsistent statements given to the police, she described the first appellant as coming into the house at 11am and lying on the couch as he was not feeling well.
[10] In the days and weeks following the incident, the first appellant made certain comments and behaved in certain ways. For example:
[11] To David McCormack, the first appellant said that he had heard that Colin Miller “had something to do with it.” The first appellant claimed that Mr Miller had told him that he (Miller) had been in the old woman’s house. He heard a commotion upstairs and the old woman screaming. He then pushed somebody out of the way, and said “I’ll show you how to deal with this.” Subsequent evidence was led indicating that Colin Miller could not have told the first appellant any of the above. The jury were invited to conclude that, in order to have that special knowledge, the first appellant must have been a participant in the break-in and present when Mrs Irvine was being attacked.
[12] To Martin Robertson, the first appellant claimed that the second appellant had done it, but ultimately said “You know who did it, Martin”, and winked. Mr Robertson formed the impression that the first appellant was boasting that he had committed the deed, but was trying to put the blame on the second appellant.
[13] To Detective Constable Strickland, who took a witness statement from the first appellant on 15 October 2003, the first appellant stated that he never left his house at 21 Knowehead Road, Hurlford, from Saturday night into Sunday morning. He had learned of the murder from the radio on Sunday morning. However other evidence established that Mrs Irvine’s body was only discovered at 4.50pm on Sunday, and that details were not sent to the press until 11am on Monday 29 September 2003.
[14] To Andrew Hay, a friend, the first appellant (while denying being involved) said that he had heard that:
“…Brendan Dixon, Colin Miller and a guy called Smith had done that to that woman… Colin’s meant to have bit the old woman’s fingers…Brendan is meant to have freaked out and ran out.”
The first appellant explained his possession of this information by saying “I just got telt.” Again, the Crown suggested to the jury that the statement demonstrated special knowledge.
[15] To Detective Sergeant Lorimer, who interviewed the first appellant on 31 October 2003, the first appellant claimed to have been told by Andrew Hay that the murder was committed by Colin Miller, Brendan Dixon and Chris Smith. However, Andrew Hay denied giving him any details about the murder. The first appellant claimed that Andrew Hay told him that-
“…Chris and the Colin, Chris and the Brendan wan is meant tae be in the hoose, daein the hoosebreakin and Colin Millar wan is meant tae be outside cop-watchin. He’s heard aw the commotion, come intae the hoose an went like that, whit’s happening, and they’ve apparently went like that, she’s no telling us where the money is an whatever an Colin Miller’s supposed tae huv gone like that, well this is how ye fuckin dae it, [threw] her doon an tied her up.”
The Crown suggested to the jury that the statement demonstrated special knowledge.
[16] To a friend Hayden McGonigle, the first appellant said that he had been interviewed by the police about the murder. Mr McGonigle commented on the fact that the first appellant had dyed his hair. The first appellant replied “DNA, you know what I mean.” Mr McGonigle also gave evidence that the first appellant said:
“Brendan [the second appellant] was a sore heid. You couldnae take him on a turn anywhere.”
Mr McGonigle understood that the first appellant was complaining that he had laid the turn on and that the second appellant had participated but done something wrong. In Mr McGonigle’s words:
“He [the first appellant] was making out that Brendan had done something wrong but he wouldn’t say any more.”
[17] Edward O’Brian gave evidence that in October 2003 the first appellant had been worried, gaunt and on edge, “definitely ducking and diving, using all the back closes, entry doors and all that.”
The procedural history
[2] In October 2009, two weeks before the hearing in the previous...
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