David Gilroy V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Wheatley,Lord Brodie |
| Judgment Date | 20 December 2012 |
| Neutral Citation | [2013] HCJAC 18 |
| Court | High Court of Justiciary |
| Docket Number | XC249/12 |
| Published date | 25 January 2013 |
| Date | 20 December 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Brodie Lord Wheatley | [2013] HCJAC 18 XC249/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in NOTE OF APPEAL AGAINST CONVICTION by DAVID GILROY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________ |
Appellant: J Scott, QC (sol adv); Wardlaw Stephenson Allan
Respondent: Prentice, QC, AD; the Crown Agent
20 December 2012
General
[1] On 15 March 2012, at the High Court in Edinburgh, the appellant was found guilty of the murder of Suzanne Pilley on 4 May 2010 at Thistle Street or elsewhere by means unknown. He was also found guilty of thereafter concealing her body within 11 Thistle Street and in the boot of his car, which he used to transport the body to somewhere in Scotland. He was sentenced to life imprisonment with a punishment part of 18 years.
The Evidence against the appellant
[2] The deceased was a 38 year old book-keeper with IML at 11 Thistle Street. She lived in a flat in Saughton. The appellant became the regional operations manager of IML in late 2008. He was aged 47, married with two children and normally lived with his family in Silverknowes. In 2009 the appellant began a sexual relationship with the deceased and, after his wife had discovered the relationship, at times moved into her flat for short periods. The relationship was turbulent. The appellant was very jealous of the deceased. He checked her e-mails. In April 2010 the deceased wanted to break off the relationship. She had met another man (MB). However, the appellant continued to meet the deceased and sent her a very large number of text messages, and spoke to her on the telephone, in the weeks and days before her disappearance.
[3] On Friday 30 April, the deceased told a female friend (GH) that she thought that she had "got through" to the appellant and that the relationship was at an end. In a text sent to MB on Monday, 3 May, the deceased wrote that: "at least if anything I managed to drum through to David that its (sic) over and to leave me alone". She spent that night with MB at his flat. He took her back to her own flat at about 7.20 am on Tuesday, 4 May. At 8.36 am, she sent a text message to her mother which carried an optimistic air regarding her relationship with MB. She caught a bus to work. She paused to buy a snack at Sainsbury's on the corner of St Andrew Square and Rose Street before making her way to Thistle Street, where she arrived at 8.53 am. She was last captured on CCTV within a few feet of the ground floor entrance to 11 Thistle Street. However, she did not reach the IML office on the second floor and was never seen or heard of again. No texts were sent to her by the appellant after this time.
[4] The appellant had arrived in Thistle Street at 8.36 am on 4 May. He logged onto his computer at 8.40. Between 9.15 and 9.20 he was observed in the area of a photocopier at the end of the open plan office near the back stairs, which led down to the basement. According to some, but by no means all, of his work colleagues, he appeared clammy and sweaty as if he had been rushing around. He did not look his normal self and seemed to be in shock. His eyes were glazed and the pupils dilated. In due course, the jury would be asked to infer that, between 8.53 and 9.15, the appellant had met the deceased in the vicinity of the front door of 11 Thistle Street, spirited her down to the basement and murdered her.
[5] Later that morning, the appellant excused himself from the office, stating that he was going home to retrieve a set of minutes. He took a taxi to his mother's house in West Pilton and she ran him to his own house, where he picked up his car and returned to Thistle Street. IML had basement car parking there, which was accessed from the lane behind Thistle Street. The appellant paid a number of visits to the basement garage in the course of the day. Again, in due course, the jury would be asked to infer that, after killing the deceased, the appellant had placed her body in a recessed area of the basement and later collected the body and put it in his car at some point before going home that evening.
[6] The deceased's work colleagues became concerned at her uncharacteristic and unscheduled non-appearance at work. They telephoned her parents at about 12.45 pm. Having been unable to trace the deceased at her flat, or to find any indication that she had intended to depart suddenly, her parents reported her to the police as missing at about 8 pm on the evening of 4 May. Her parents had noted that the deceased had made no arrangements for her cat. She had left money and her passport in her flat.
[7] At this early stage, the police were not unduly concerned, given the deceased's age and lack of vulnerability. Hospitals and prisons were checked, but not much else. In the morning, the inquiry was graded "low". At about 12 noon on Wednesday, 5 May, two uniformed constables visited her flat and made local enquiries. They learned of the relationship between the deceased and the appellant and called at IML's office. The staff provided general information on the deceased's personality. The police were told that the appellant had left the office unexpectedly that day, apparently after hearing of the police enquiry.
[8] Later that day (Wednesday), staff at IML gave the police further information about the relationship between the appellant and the deceased as revealed in e-mails exchanged between them. The police decided that they wished to speak to the appellant. They left voice messages on his mobile, asking him to contact them. At about 4 pm, after a change of shift, a different uniformed police constable visited IML and took certain statements. IML staff told him that they were unsure of where the appellant had gone. However, at this point, the appellant had coincidentally telephoned IML and was put onto the police. He told them that he had left the office at about 11.30 am to go on a pitch inspection at a school in Lochgilphead, which was part of an IML project. He said that IML staff knew that he was there but none of his work colleagues recalled being told of this impending journey. The appellant said that he had last seen the deceased on the morning of Monday, 3 May. Since, at that time, this placed him as being potentially the last person known to have seen the deceased, the appellant was asked to call at Corstorphine police station. He said he would be back at about 9.30 pm, although he only arrived at the police station more than two hours later, after the police had followed up their call.
[9] In due course, various CCTV recordings of the appellant's car en route to Lochgilphead revealed that the appellant had taken much longer to complete the journey than would normally have been anticipated. He had taken 2 hours and 38 minutes to go from Tyndrum to Inveraray; a journey which ought to have taken only 36 minutes. His car had used more petrol than might have been expected. When examined, his car had 4 fractures to 3 suspension coils; it being unusual to find even one fracture in a suspension coil of a car subject to ordinary road use. The plastic under-tray had been scraped and vegetation was stuck to the underside. It had clearly been driven off road. The inference to be drawn from that, which the jury were asked to make, was that the deceased had disposed of the body somewhere off the road between Tyndrum and Inveraray. However, no body has ever been found.
[10] A cadaver dog, which is trained to react to the presence of dead bodies, reacted to areas in the basement garage and to a recessed area in the basement near the door leading from the basement to the garage. The dog also reacted to the boot of the car, but no forensic links to the deceased were established.
[11] On the day after his return from Lochgilphead, having given a detailed statement concerning his association with the deceased and his own movements (infra), the appellant consented to be examined by a Forensic Medical Examiner. He had a number of injuries to his forehead, hands and arms. On the back of his right hand and wrist were parallel curvi-linear abrasions, which could have been caused by finger nails. According to a consultant forensic pathologist, such abrasions were a characteristic reaction of a person who was being strangled. On Friday, 7 May, the appellant was taken to police headquarters to have his hands photographed. The photographer noticed that the appellant was wearing make-up on his hands. He was asked to wash his hands before having them photographed again. He was noted not to be drying his hands by vigorous rubbing, despite giving an impression of doing so.
The Developing Police Enquiry and the appellant's first statement
[12] In the late evening of Wednesday, 5 May, the police were, as already noted, keen to speak to the appellant. They were expecting him to call at Corstorphine police station at about 9.30 pm on his return from Lochgilphead. They had asked him to come straight there rather than to go home first. When he did not appear, the police had gone to the appellant's house to see if he had arrived there. He had not, although his wife was seen to be at home. At about 10.15, the police contacted the appellant again. He said that he was at Stirling and would be at Corstorphine in about 45 minutes.
[13] At about 10.30 pm, a constable was delegated to go to the appellant's house to check again on whether he had arrived there and, if he had not, to speak to his wife in order to establish his movements over the previous days. This was with a view to exploring the possibility that the deceased was actually with the appellant; the police not being entirely satisfied that the appellant had last seen her on Monday, 3 May. However, there was, according to the uniformed police engaged in the enquiry at that time, no suspicion of a crime focussed on the appellant in relation to the disappearance. There...
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