Application Under The Double Jeopardy (scotland) Act 2011 By Her Majesty's Advocate Against (first) Ronnie Coulter; (second) Andrew Coulter; And (third) David Montgomery
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord Malcolm,Lord Justice Clerk |
| Judgment Date | 28 November 2014 |
| Neutral Citation | [2016] HCJAC 96 |
| Date | 28 November 2014 |
| Docket Number | MA1/14, |
| Court | High Court of Justiciary |
| Published date | 21 October 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 96
MA1/14, MA2/14 and MA3/14
Lord Justice Clerk
Lady Dorrian
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in the application under the Double Jeopardy (Scotland) Act 2011
by
HER MAJESTY’S ADVOCATE
Applicant;
against
(FIRST) RONNIE COULTER; (SECOND) ANDREW ALEXANDER MARSHALL COULTER; and (THIRD) DAVID SHIELDS MONTGOMERY
Respondents:
to set aside the acquittals of the respondents and to grant authority to bring a new prosecution against them
Applicant: Prentice QC (sol adv) AD; the Crown Agent
First Respondent: Allan QC, G Ross; Manini Belardo Matteo, Coatbridge
Second Respondent: Graham, Tonner; John Pryde & Co, SSC (for Ness Gallagher & Co, Wishaw)
Third Respondent: Ogg QC, Labaki; John Pryde & Co, SSC (for Stephen J MacBride, Wishaw)
28 November 2014
Introduction
[1] The applicant craves the court to set aside the acquittals of each of the respondents relative to the murder of Surjit Singh Chhokar on 4 November 1998 in Overtown, Lanarkshire. He seeks authority to bring a new prosecution for the “original offence” against all of the respondents. The first respondent was acquitted on 9 March 1999 after a trial on an indictment which libelled murder against him only; albeit “while acting with others”. The second and third respondents were acquitted on 28 November 2000 after a subsequent trial against them on an indictment for murder, which did not libel concert in the murder with the first respondent.
[2] The applicant maintains that, subsequent to the respective acquittals of the first two respondents, evidence that each had made certain admissions was discovered. In addition, following the acquittals of all three respondents, the applicant avers that new evidence has emerged against each of them. The application is therefore made in terms of sections 3 and 4 of the Double Jeopardy (Scotland) Act 2011. The essential issue in respect of each respondent is whether the statutory tests for setting aside acquittals and authorising new prosecutions have been met.
The original trials
[3] The deceased was killed as a result of a stab wound to his heart during an incident which occurred at about 11.30pm on 4 November 1998 outside the home of his girlfriend, namely Elizabeth Bryce, in Garrion Street. Within a matter of days, each of the respondents was arrested. They were all committed for further examination, albeit on slightly different days, at Hamilton Sheriff Court. For reasons which are documented in detail in the report by Sir Anthony Campbell, dated June 2001, the instruction from Crown counsel thereafter was to proceed to full committal on the murder charge only against the first respondent and to release the other two respondents from custody.
[4] Having considered the precognition subsequently prepared, Crown counsel determined that, in the first instance, the Crown would indict only the first respondent for murder, albeit that the position of the second and third respondents was to be re-considered after the trial. It was Sir Anthony’s view that, for a variety of reasons concerned principally with failures in communication between Crown counsel marking the papers and the local and Crown Office procurators fiscal reporting to them, no considered decision had been taken in relation to the inclusion of the second or third respondents in the first indictment. The correct decision, based on the evidence known at the time, would have been to prosecute the first two respondents for murder and to list the third respondent as a witness. The court did not understand these findings to be disputed by any party.
[5] The trial of the first respondent took place in March 1999. He pled not guilty and incriminated the two other respondents. The evidence was that the deceased lived in a flat in the multi-storey block at Caplaw Tower, Gowkthrapple, Wishaw. Also living in the block were the first respondent and, in a different flat, his nephew, the second respondent. On 4 November, the deceased’s flat had been broken into and a benefit cheque had been stolen. The deceased and Ms Bryce were told at the Job Centre that this cheque had been cashed by the second respondent, who was known to them. Ms Bryce took the matter up with the second respondent’s family, who lived near her in Overtown. She spoke to the second respondent and told him that she may have to involve the police. The second respondent had replied that, if he was going to be in trouble with the police, the deceased would be “getting it”. Ms Bryce asked the second respondent to come to her home at about 11.30pm to discuss the matter with the deceased. By that time the deceased would have finished his work as a waiter and returned to her address.
[6] During the course of the evening, the first and second respondents were in the first respondent’s flat. Two women testified that the respondents had discussed going to Overtown with the intention of discouraging the deceased from contacting the police. This was to be achieved by hitting him “a few times”. The second respondent said that he would take the bat which he had in his flat. He also said that he would “batter” the deceased with his boots, which he was about to put on. Other more extreme methods of inflicting pain were discussed, but dismissed as being humorously intended. In cross-examination, the witnesses agreed that all of this was very much the second respondent’s operation with the first respondent joining in, if the deceased chanced to gain the upper hand. The two respondents were going to ask the third respondent to give them a lift to Overtown.
[7] Ms Bryce testified that, at about 11.30pm, she saw the deceased park his car near her house. He approached her gate. All three respondents appeared. They seized hold of the deceased. Ms Bryce described the first respondent holding the deceased’s right arm, the third respondent holding the deceased’s left arm and the second respondent holding him by his jacket “in the middle”. They were running him across the road. The second respondent was pushing him and the other two were pulling him.
[8] Ms Bryce lost sight of the incident whilst she armed herself first with a bottle and then a spade. She ran out of the house shouting at the respondents to stop. By this time the deceased and the respondents had moved across to the other side of the street. She saw the third respondent run off. The second respondent stepped back. The first respondent, who had been holding something, swung his right hand underarm towards the abdomen of the deceased. The first and second respondents then ran away. The deceased was able to tell Ms Bryce that he had been stabbed before he collapsed with fatal wounds.
[9] There was no other eye‒witness evidence about the inter-action between the three respondents and the deceased. What is, of course, known is that, during this short period, the deceased had suffered three stab wounds, including the fatal blow to the heart, and multiple bruising caused by blunt force trauma.
[10] There was further evidence that, on the following day, the first respondent had given his then girlfriend, namely Alexandra Tierney, bags containing clothing and a set of knives, with one missing, to dispose of. These were later recovered. A fingerprint of the first respondent was on the box containing the knives and that of the second respondent on one of the knives.
[11] Neither the second nor the third respondents was called to give evidence. The first respondent did not testify on his own behalf. He was nevertheless acquitted, presumably on the basis that the jury were not satisfied that he was either the person who had stabbed the deceased or that he had acted in concert with whichever one of the respondents had been responsible. There followed certain outspoken remarks of the trial judge, who publicly criticised the Crown for not prosecuting all three respondents for the murder on the one indictment. This in turn provoked a sharp response from the Lord Advocate regarding the correct division of constitutional responsibilities.
[12] The Crown re-assessed the situation and decided to indict the second and third respondents for the murder. The view was taken that, standing McAuley v HM Advocate 1946 JC 8, the Crown were barred from proffering a charge which ran contrary to a prior jury verdict. Accordingly, the form of the indictment was constrained. That constraint was ultimately to lead to a fundamental problem in the prosecution of the case.
[13] The new indictment libelled that, although the second and third respondents had initially acted with the first respondent in assaulting the deceased by seizing, struggling with and striking him on the body, they had acted in concert only with each other in the stabbing of the deceased. There was no allegation of acting in concert with the first respondent in the murder, notwithstanding that it had been the clear position of the Crown at the first trial that he had been the principal actor.
[14] The evidence at the second trial included much of the same testimony as had been given at the first. There was one other eye‒witness, namely Thomas Muir, who said that he had seen one of the attackers striking the deceased on the shoulder with a stick. The first respondent was called as a Crown witness. He maintained that he had not been involved in the assault, although he had seen the other two respondents attacking the deceased. He had only intervened to defend him. He had not seen anyone using a knife, nor had he seen the deceased being stabbed. A baton and a skip cap (which had been worn by the second respondent at the material time) were discovered in a vacuum cleaner in the second respondent’s flat.
[15] Interviews of the second and third respondents contained admissions from both that they had been present at the time of the assault. The second respondent maintained that he had been alone at the time of...
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An Application By The Lord Advocate Under Section 4(3)(b) Of The Double Jeopardy (scotland) Act 2011 Seeking Authority To Bring A New Prosecution In The High Court Agains Sean Patrick Tiffney
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