Gray v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 28 January 1994 |
| Date | 28 January 1994 |
| Docket Number | No 17 |
| Court | High Court of Justiciary |
JC
LJ-C Ross, Lords Murray, Brand
Procedure—Solemn procedure—Trial—Verdict—Murder—Culpable homicide—Provocation—Altercation between two co-accused and deceased prior to fatal incident—Appellants involved only in fatal incident—Jury finding appellants guilty of murder but co-accused guilty of only culpable homicide—Whether provocation—Whether perverse verdict—Whether miscarriage of justice
Procedure—Solemn procedure—Trial—Jury—Conduct of jurors—Juror visiting locus during trial and informing fellow jurors—Whether improper—Female jurors allegedly forming relationship or association with discharged co-accused during trial—Statements alleging relationship full of hearsay and gossip—Trial judge directing case to be decided on evidence only—Whether statements sufficiently substantial, convincing and trustworthy to warrant enquiry—Whether miscarriage of justice
The appellants and three others were tried for murder. There was insufficient evidence that any particular accused had caused any particular injury to the deceased so that any homicide conviction had to be based on concert. There was evidence that there had been an incident prior to the fatal attack, not involving the appellants, when one co-accused had been struck by a chain swung by the deceased and a fellow co-accused had gone to his aid in the ensuing fracas. The trial judge (Lord Morton of Shuna) directed the jury that their verdict could be for culpable homicide only if they found that there had been provocation. The jury convicted the co-accused of culpable homicide and the appellants of murder. After trial it was alleged by the foreman of the jury that a juror had visited the locus during the trial and had informed fellow jurors of that. There were also statements that two female jurors had formed a relationship or association with a co-accused who had been discharged following the Crown withdrawing the libel against him. That former co-accused stated that any relationship or association that had developed occurred after the close of the trial. None of the statements from jurors expressed any concern about the propriety of the convictions but were full of hearsay and gossip. The appellants appealed and argued, inter alia, (a) that the jury's differentiation between the verdicts had been perverse; and (b) that further investigations ought to be made into the activities of the jurors complained of.
Held (1) that it was not improper for a juror to visit the locus during the course of the trial for no restrictions on jurors' movements during a trial existed outside the confines of the court and it had to be assumed that the jury complied with the trial judge's direction (which he had emphasised more than once) to come to their verdict only on the evidence led in court; (2) that the statements regarding the behaviour of the female jurors failed to meet the requisite standard of being sufficiently substantial, convincing and trustworthy to warrant enquiry; (3) that the earlier incident involving the deceased and the co-accused was sufficient evidence to justify the jury concluding that they had acted under provocation at the time of the fatal assault so that the jury had been entitled to draw a distinction between the co-accused and the appellants and convict the latter of murder for, at the very least, the jury were entitled to have a reasonable doubt as to the degree of involvement of the co-accused; and appeal refused.
William Gray, Matthew Gray, James Bernard O'Rourke and others were charged on an indictment at the instance of the Rt. Hon. The Lord Rodger of Earlsferry, Q.C., Her Majesty's Advocate, charge (30) of which set forth that: "(30) on 24th May 1992 in Lime Crescent, Craigneuk, Airdrie, you David Craig Armstrong, Stephen Donohoe, Terence Donohoe, William Gray and James Bernard O'Rourke did assault Neil Cairney, formerly residing at 45 Howletnest Road, Craigneuk, Airdrie, repeatedly strike him on the head and body with a piece of wood or similar instrument, throw a spirit level, a knife and bottle at him and attempt to strike him therewith, strike him on the head with a brick or similar object and cause him to fall to the ground, repeatedly strike him on the head and body with pieces of wood, bricks, paving slabs, pieces of masonry or similar objects, strike him with a knife and repeatedly kick him on the head and body and did murder him and you did previously evince malice and ill will towards him".
The pannels pled not guilty. The cause then came to trial in the High Court of Justiciary at Glasgow before Lord Morton of Shuna and a jury. After trial, David Craig Armstrong was found guilty of assault on the above charge; Stephen Donohoe and Terence Donohoe were found guilty of culpable homicide; and William Gray and James Bernard O'Rourke were found guilty of murder. Matthew Gray was convicted of an assault upon another charge. The pannels appealed to the High Court of Justiciary by way of note of appeal.
In his report Lord Morton of Shuna set forth, inter alia, that: "The appellants William Gray and James Bernard O'Rourke were convicted by a jury of the murder of Neil Cairney. Stephen Donohoe and Terence Donohoe, who were also charged with the murder, were convicted of culpable homicide. Another man, Craig Armstrong, was also accused of the murder but was convicted of assault by kicking and throwing a bottle. The murder charge was charge (30) on an indictment containing 31 charges which was tried by a jury in the High Court at Glasgow between 14th September and 2nd October 1992. In the course of the trial the jury heard evidence of considerable hostility and violence between two factions or gangs in the Craigneuk area of Airdrie. One gang was led by the deceased Neil Cairney and the other, apparently, by the appellant William Gray. From the evidence it appeared that frequent fights and disturbances occurred in the streets of Craigneuk between these groups. None of these incidents was apparently reported by anyone to the police until after the death of Neil Cairney, when police investigations into the murder revealed some of the background. As an example, as a result of a fight in the streets of Craigneuk on 20th April, Neil Cairney, Henry Cairney and William McAuley were treated in hospital. Neil Cairney and William McAuley each had significant head injuries. The police saw each of them and each refused to make any complaint or to assist the police with any information. The jury also convicted the appellant William Gray and his brother Matthew Gray of an assault on a man Tarditi on 9th April 1992. This assault took place in daylight in front of witnesses. The Grays drove up in a car and Matthew Gray, armed with a baseball bat, ran up to Tarditi, who was sitting in the open at the side of a shop, and hit him, breaking his kneecap. He did this in front of two friends of Tarditi and of a housewife who walked past within a few feet of the men as the assault was taking place but took no action. No one reported the incident to the police and Tarditi gave an account of having fallen when he went to hospital for treatment. The jury also convicted William Gray of an assault on Neil Cairney on 16th May 1992 by presenting a shotgun at him and threatening to shoot him with it. This incident, according to the evidence, took place in one of the streets in Craigneuk in the presence of a large number of people. Again there was no report to the police. Just after midnight on 24th May 1992 Neil Cairney went to William Gray's house armed with a baseball bat and a chain. He was accompanied by Tarditi and two women. Cairney appears to have gone to Gray's house because of an assault on Tarditi very shortly before. James Bernard O'Rourke was charged with this assault and the jury found the charge not proven. At Gray's house Cairney, and possibly one of the women, broke windows in two cars on the driveway of the house. William Gray's common law wife came out of the house followed by the five men who were accused of the murder. Cairney appears to have had the baseball bat removed from him by Gray's wife. Cairney then stood on the pavement outside the garden gate swinging the chain at the five men who were standing in the garden throwing missiles and otherwise trying to attack Cairney. Cairney then moved away from the garden gate and was rushed at by the five men. He either fell or was felled and when lying on the street was battered to death by blows to the head and abdomen. The weapons used included pieces of paving stone, a plank of wood and the trunk of a small tree. There was evidence from Terence Donohoe and from William Gray that when Cairney was standing at the garden gate swinging the chain, Stephen Donohoe was hit and knocked down by a blow from the chain. No other witness spoke to this having happened. According to Terence Donohoe, when his brother Stephen was knocked down, Terence assisted Stephen to the black Mazda car sitting in the driveway of the house. Then the two brothers left the scene in the car and were never involved in the fight in the street...
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