William Gage V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Brodie,Lord Justice Clerk |
| Judgment Date | 27 January 2012 |
| Neutral Citation | [2011] HCJAC 40 |
| Docket Number | XC408/09 |
| Published date | 15 April 2011 |
| Court | High Court of Justiciary |
| Date | 15 April 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Reed Lord Brodie | [2011] HCJAC 40 Appeal No: XC408/09 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in the REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in causa WILLIAM GAGE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the appellant: Scott, QC; Mitchell; Aamer Anwar and Co, Glasgow
For the Crown: Shand QC, AD; Crown Agent
15 April 2011
Introduction
[1] On 9 February 2004 at Glasgow High Court the appellant was convicted on the following charge:
"On 7 March 2002 at Acacia Way, Westburn, Cambuslang, Glasgow, you did while acting along with another or others meantime to the prosecutor unknown, assault Justin John McAlroy ... and repeatedly discharge a firearm at him and shoot him on the head and body whereby he was so severely injured that he died on 8 March 2002 ... and you did murder him."
[2] His appeal against conviction was refused (Gage v HM Adv [2006] HCJAC 7).
[3] The Scottish Criminal Cases Review Commission has referred the case to this court. The appellant has taken the opportunity of the referral to table several grounds of appeal against conviction. They relate to the reasonableness of the jury's verdict, dock identification and alleged misdirection. These grounds remain to be considered. The appellant now seeks leave to add a new evidence ground. We have had a hearing on that question.
The evidence
[4] The deceased was an experienced criminal who trafficked in drugs. He was murdered outside his house. The evidence relevant to the proposed ground of appeal was as follows.
The identification of the gunman
[5] Several witnesses saw a man running from the scene. He wore dark clothing. His face was partially obscured by a scarf, hood or something similar. He got into the passenger seat of a white car, which was driven off in the direction of the M73/M74.
[6] Only one witness identified the appellant as that man, namely the deceased's widow Tracy McAlroy. In her police statements and in her Crown and defence precognitions Mrs McAlroy said that she could not identify the man or did not think that she would be able to do so in court. There was no identification parade. The police had arranged one but the appellant refused to take part in it because he thought that the stand-ins were much younger than he.
[7] Mrs McAlroy said that on hearing what were evidently gunshots, she opened her front door and looked out. She saw a man running away at the end of her driveway. He looked at her when she opened the door. He wore a hood. Only part of his face, from the forehead to the nose, was visible. The advocate depute asked her if she had seen anyone who resembled that man. She said yes, and indicated the appellant in the dock. She said that she did so "because I'll never forget the eyes ... They eyes, I think I seen them that night but I'm not 100 percent sure." She said that they were "scary eyes." She confirmed that it was the appellant's eyes that caused her to say that there was a resemblance. There was no objection to this line of evidence. Mrs McAlroy had not previously mentioned the man's eyes.
[8] Stephen Madden was the only other witness to see the gunman's face. He said that he saw the gunman inside the white car removing what he thought was a ski mask. He did not identify him in court.
Identification of clothing
[9] The shooting occurred at about 10pm. At 10.49pm police were alerted to a white Saab that was on fire at Balcurvie Road, Easterhouse. It had been abandoned there at least 10 minutes earlier. In the Saab the police found gloves, a black nylon hooded jacket, a scarf or snood, a drinks bottle and a radio scanner that was switched on and tuned to the police wavelength. The appellant's DNA was on the neck of the bottle and on the hood and cuffs of the jacket. On the gloves and snood there was his DNA and the DNA of at least two other unknown persons. The jacket and snood also bore a small amount of firearms discharge residue of the same type as that found at the locus.
[10] Tracy McAlroy told the police that the man whom she saw running away was wearing a padded jacket with an 'Eskimo-type' hood. Her description did not fit the jacket found in the Saab. In May 2002, following the aborted identification parade, the police took her into a room in the police station and showed her a mannequin dressed in the clothing found in the Saab. She identified the clothing as that worn by the man whom she had seen. There was no objection to this evidence. According to the trial judge's report, the mannequin had very prominent eyes. Other eye-witnesses were shown the jacket but only one, Phyllis Craig, said that it was of a similar type to the jacket that she had seen the man wearing.
The identification of the car
[11] The witness Charles Bowman was working nearby. He heard a car screeching away. He described it to the police as a white car with a spoiler. He thought that it might have been a Volvo. When the police showed him a number of Volvos, he said that he thought that he had seen a Volvo 440. Later, at Paisley police station he was shown the Saab that was found at Easterhouse. He said that it was similar to the car that he had seen. The Saab did not have a spoiler. There was no objection to this evidence. Other witnesses gave varying descriptions of a white car that they said that they had seen near the locus. One of them, James Kearns, said that he was familiar with Saab cars and would have noticed if the car that he saw had been a Saab. He too thought that the car had had a spoiler.
The referral
[12] The Commission summarises its reasons for referring the case as follows:
"The Commission considers that the combination of difficulties with each of these adminicles heightened the importance of the jury being given specific directions on the evidence in question. In relation to the dock identification, the Commission has reached the view that the complete absence of directions on the dangers inherent in the dock identification (such as the increased possibility of mistaken identification), on the need to consider the fairness to the applicant of the process and on the need for particular caution in the circumstances amounts to a misdirection by the trial judge.
That misdirection must be seen in light of the obvious difficulties with, and the absence of similar directions regarding, Mr Bowman's confrontation with the Saab and Mrs McAlroy's confrontation with the mannequin; and the limited challenges put forward by the appellant's solicitor advocate to the three strands of contested evidence in cross-examination and in his speech (as highlighted above); and the potential importance of each of these three strands of evidence to the case as a whole (the Crown expressly relied on them and without them the case, though still sufficient in law, was entirely circumstantial and was undoubtedly much weaker and more tenuous).
The Commission believes that, when the misdirection is considered in light of these factors, a miscarriage of justice may have occurred. The Commission also believes that, when seen in the context of the trial as a whole, the cumulo effect of the Crown having relied on the three strands of contested evidence may have amounted to a violation of the applicant's right to a fair trial under article 6, and that a miscarriage of justice may have occurred as a result (Referral, para 247)."
The proposed new ground of appeal relates directly to these reasons.
The proposed new ground
[13] The appellant seeks to lead the evidence of Professor Tim Valentine, Professor of Psychology at Goldsmiths, University of London. We understand that Professor Valentine is a recognised expert on eye-witness identification, that he has advised the Home Office and police forces in England in relation to identification questions and that his research has informed and influenced the English code of practice governing the conduct of identification parades. According to the proposed ground of appeal, the new evidence will cover:
"The recognised and undisputed factors from psychological science which are relevant to the circumstances of this case and which render the identification evidence made here more or less reliable.
In this case the crucial circumstances relied upon concerned facial identification of the accused (resemblance) and identification of objects. In summary consisting of the evidence that the accused resembled the gunman; that the clothing shown was that worn by the gunman or similar to that worn by the gunman and the motor car shown was the car or similar to the car abandoned in Easterhouse.
The relevant risk factors which arise from this evidence include:-
the opportunity to view the gunman by witnesses
the effect of stress upon witnesses
the delay before the identification procedures were carried out
the potential effect of feedback or post-event information acquired by the witnesses
the potential effect of the suggestible procedures carried out.
The risks to the reliability of such identification evidence which can arise from the way it is obtained and in particular from the identification procedures followed here. Notably the risks arising from the procedures detailed at 3.1-3.3 above, namely
the procedure of showing a single object or motor car to the witness
the procedure whereby the eye-witness was confronted with a mannequin dressed in clothing from the accused
the procedure of dock identification - absent a parade"
[14] Professor Valentine's report relates to the principal psychological properties of human memory; psychological research on facial identification; the psychology of object recognition; and what he calls the most salient factors relevant to eyewitness testimony in this case. He has reviewed the trial judge's report, the Commission's statement of reasons, the report of the aborted identification parade, the statements and transcripts of the...
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