Frank Docherty+brendan Christopher Dixon V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Carloway,Lord Mackay of Drumadoon |
| Neutral Citation | [2010] HCJAC 31 |
| Court | High Court of Justiciary |
| Date | 26 March 2010 |
| Docket Number | XC195/05 |
| Published date | 26 March 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Carloway Lord Mackay of Drumadoon | [2010] HCJAC 31 Appeal No: XC195/05 & XC213/05 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by (First) FRANK DOCHERTY and (Second) BRENDAN CHRISTOPHER DIXON Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
First Appellant: G Jackson QC, C M Mitchell; Mann & Co
Second Appellant: Shead, M C Mackenzie; Capital Defence Lawyers
Respondent: Prentice, Solicitor Advocate QC, Advocate depute; Crown Agent
26 March 2010
Introduction[1] On 1 March 2005, at Kilmarnock High Court, each appellant was convicted by majority verdict of the following offence:
"(3) On 28 September 2003 at 21 Barward Road, Galston you ... did enter the house there, assault Margaret Hutchison Irvine, aged 91 years, then residing there, switch off the electricity there and struggle with her, tie her hands behind her back with a belt, punch her on the head and body, force a piece of cloth into her mouth and asphyxiate her, all with intent to rob her and you did murder her."
The second appellant was also convicted of Charge 4, attempting to defeat the ends of justice.
[2] The victim, a 91-year-old lady, had been found dead in her home at 21 Barward Road, Galston at 4.50 pm 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.
Evidence, statements, and judge's directions
[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 7 a.m. 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 7.25 am, the bedside light was on. Later that Sunday, at about 4.50 pm, 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 foot of the stair-lift in the hallway, and was not readily accessible to the stairlift-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.
[6] The Crown presented the case on the basis that the time of death was about 8 am on Sunday 28 September 2003. That timing depended upon several pieces of evidence. The carer had left Mrs Irvine at about 7.25 am. Mrs Irvine's nephew Charles Keers heard noises coming from her home between 7.30 am and 8 am. He described the noises as a roar lasting a few minutes, and then someone running down the stairs. When Mrs Irvine was later found, she was still wearing her night-clothes and her bedside light came on when the electricity was restored (suggesting that the attack had occurred before Mrs Irvine got up, dressed herself, and went downstairs to the living-room as was her normal practice). Finally and significantly, when the deceased's stomach contents were examined, the open-textured bread of the half-roll which she had eaten for breakfast had not broken down to any great extent. The evidence of Dr Jennifer Miller of Glasgow University was to the effect that such open-textured bread was very quick to break down. The Advocate depute advised this court that the pathologist Dr Marjorie Black in her evidence gave a possible range for the time of death as between 7.30 am and 10 am. The Crown's position (that the death occurred at about 8 am) was unchallenged at the trial, either by submission or by evidence.
Evidence particularly relevant to the first appellant
[7] The evidence established that on Friday 26 September 2003 (two days before the incident), a drug addict named David McCormack saw the first appellant driving a car. Mr McCormack approached him, hoping to obtain drugs. The first appellant asked Mr McCormack if he "wanted to do any turns" while he had the car. Mr McCormack understood that he was being invited to participate in theft by housebreaking. He declined the invitation.
[8] On Saturday 27 September 2003, the day before the incident, Mrs Irvine's nephew Mr Keers saw two men walking in the street outside Mrs Irvine's house. He had first noticed them prior to the earlier break-in. They appeared to be in each other's company, although they did not speak to each other. One of the men resembled the first appellant, and was wearing a baseball hat and a hood despite the warm weather. Mr Keers found their behaviour odd and suspicious.
[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 11 am. 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 11 am 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 4.50 pm on Sunday, and that details were not sent to the press until 11 am on Monday 29 September 2003.
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