Opinion Of The Court Delivered By Lady Paton In The Cause William Lauchlan And Charles O'neill Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Philip,Lady Clark Of Calton |
| Judgment Date | 27 March 2014 |
| Neutral Citation | [2014] HCJAC 22 |
| Published date | 20 June 2014 |
| Date | 27 March 2014 |
| Court | High Court of Justiciary |
| Docket Number | XC424/10 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
|
| [2014] HCJAC 22
|
| LadyPaton LadyClark LordPhilip
| Appeal No: XC424/10 & XC402/10
OPINION OF THE COURT
delivered by LADYPATON
in the cause
WILLIAMLAUCHLAN AND CHARLESO’NEILL
First & Second Appellants;
against
HER MAJESTY’S ADVOCATE
Respondent:
_______
|
First Appellant: G Jackson QC; Fitzpatrick & Co
Second Appellant: Carroll, Solicitor Advocate; Drummond Miller
Respondent: Bain QC; Crown Agent
27 March 2014
Introduction
[1] On 10 June 2010, in Glasgow High Court, the appellants were found guilty by majority verdicts of the following offences:
“(2) on 21 June 1997 at [a flat in] Largs … you … having between 23 June 1994 and 21 June 1997 engaged in criminal sexual activity with [R] … then aged between 9 and 13 years, and knowing that [Mrs McG] his mother then residing there, was aware of such activity and believing that she intended to report such activity to the authorities did detain her against her will within said house … and thereafter assault said [Mrs McG], seize hold of her neck, compress her throat and did murder her and you did previously evince malice and ill will towards said [Mrs McG];
(3) between 21 June 1997 and 1 September 1997, both dates inclusive, at [said flat] and elsewhere in Ayrshire meantime to the prosecutor unknown, having committed the crime libelled in charge (2) hereof and being conscious of your guilt in respect thereof you … did
(a) remove the body of [Mrs McG], now deceased, from said premises;
(b) transport said body to Largs Beach and conceal same under rocks there;
(c) thereafter recover said body and deposit same in a bin or similar container and transport same onto a boat; and
(d) deposit said bin or similar container and the body of said [Mrs McG] into the sea,
and this you did with intent to conceal or destroy evidence in respect of said crime and with intent to defeat the ends of justice and you did attempt to defeat the ends of justice.”
[2] The appellants were sentenced to life imprisonment with punishment parts of 26 years and 30 years respectively. Each appellant was sentenced to 8 years imprisonment in respect of charge (3), to run concurrently.
[3] The appellants appeal against conviction and sentence. The appeals against conviction were heard on 6 February 2014. Transcripts available to the appeal court included the advocate depute’s jury speech and the jury speech made on behalf of the first appellant.
The circumstantial case
[4] The trial judge’s report dated 14 September 2010, and an opinion of the Appeal Court in an application in terms of section 107(8) of the Criminal Procedure (Scotland) Act 1995 delivered by Lord Hodge dated 8 February 2012, record the circumstantial case relied upon by the Crown. In 1994, Mrs McG’s marriage had broken down. The two younger children initially lived with their mother in Rothesay. As noted by the trial judge at page 4 of his report, Mrs McG was a loving mother who cared deeply for her children, and always tried to stay in regular contact with members of her immediate and wider family. One of the two younger children R (a boy aged 10) began having behavioural problems resulting in a period in care. He then went to live with his father in Glasgow. However he always had contact with his mother. When visiting his mother in Rothesay, R met the appellants. Over a period of about three years between 1994 and 1997, the appellants “groomed” R such that he felt great affection for them, looked up to them, and regarded them as his heroes. During this period, the appellants sexually abused R. As noted in paragraph [14] of Lord Hodge’s opinion, social workers gave evidence that the appellants behaved as if they owned R.
[5] In June 1997, R and Mrs McG were staying in the appellants’ flat in Largs. R was pleased with the arrangement, as he did not have to return to live with his father, and he knew that the two appellants would let him do as he pleased. However his mother became increasingly unhappy. There was evidence that she had, by this stage, found out about the sexual abuse of her son.
[6] Lord Hodge summarised the relevant evidence as follows.
“[14] … There was evidence from, among others, Mr Colin Higgins, which showed that each of the accused hated and disparaged Mrs McG. There was evidence that Mrs McG had discovered that her son was being sexually abused and that the accused were concerned that she would report them to the police. R spoke of an incident at the tennis court in Largs, two days before his mother disappeared, when Mr O’Neill had said to him that they would need to get rid of her or she would get the police onto them. Mr Greig McKelvie gave evidence of an argument in the flat on the night Mrs McG disappeared (20 June 1997). He heard her [shout at the appellants that they were a ‘fucking pair of poofters; I know what youse are up to; I’ll see you get what’s coming to you’ – trial judge’s report page 5]. She wanted to leave and return to Rothesay. Mr Lauchlan had the key to the front door of the flat, and the door was locked to prevent her from leaving. After Mrs McG had gone to bed in a distressed state, R overheard the appellants talking about getting rid of his mother and cutting her up.
[15] There was evidence of two telephone calls after 1am on 21 June 1997 between a landline phone in the flat and the mobile phone which the two accused used. From that it could be inferred that one of the accused within the flat was in contact with the other who was elsewhere. Next morning, Mrs McG was not in the flat. Mr McKelvie returned to the flat and found that the two accused were not there and their car was not parked behind the premises. He came back later in the morning, by which time the two accused had returned. He asked where Mrs McG was and the accused replied that they had woken at 5am to find the front door open and Mrs McG had disappeared. The two accused also told R that his mother had gone and that they did not know where. He noticed that their car was not parked in its usual position.
[16] The Crown case was that Mrs McG had disappeared that night and that she was never seen again. It was supported by evidence that she was a vulnerable woman of low intelligence who was very close to her family but who had had no contact with them after that night. The Crown submitted that it was very unlikely that she would have left the area to adopt a new identity without contacting her family. Mail addressed to her was left uncollected at her Rothesay flat. She did not claim benefits in her name after that date and her benefits book remained unused in her flat. It could be inferred that she did not return there after 21 June 1997. The police also [gave] evidence of the unsuccessful enquiries which they had made in an attempt to trace her. The Crown’s case was that the two accused had acted in concert to murder Mrs McG and had later disposed of her body at sea.
[17] In about September 1997 the police arrested the accused after they discovered that they were harbouring R in their flat in Largs.
[18] There was evidence that both of the accused had access to a boat, the ‘Andola’, at Largs Marina … There was evidence that the accused had been on the vessel at sea. A fisherman gave evidence that in 2005 he had caught in his nets a wheelie bin which contained a foul smelling bag at an area of the Firth of Clyde known as the Perch. He had cut free and returned the wheelie bin to the sea without opening the bag, which he thought contained the carcass of an animal.
[19] The Crown led evidence of several incriminating statements. The first appellant Mr Lauchlan asked Mr Chris Lewis if he were questioned to say that Mrs McG had not stayed in the appellants’ flat. Mr Lewis also testified that Mr Lauchlan had said that she had fallen off the Rothesay ferry. Some years later Mr Lauchlan stated to Mr Keith Denneny that there had been a woman who was going to be a witness against him and Mr O’Neill and that they had got a boat, taken her out and fed her to the fish. Mr Graham Beckett spoke of a drunken conversation in Gran Canaria during which Mr Lauchlan said something about a woman who lived near to a place where a black bag was found in water.
[20] Ms Linda Buckley gave evidence that during a visit to Largs she heard Mr O’Neill ask her partner, John Hutton, how long it would take for a body dumped at sea to come ashore. She noticed that both accused were anxious and agitated and they spoke to her of moving to England. Mr Hutton had died by the time of the trial but in his police statement he was recorded as having said that Mr O’Neill had asked him ‘if a body fell in here, where would it finish up?’ Colin Higgins said that Mr O’Neill admitted and boasted on many occasions that he had killed Mrs McG, that he spoke of her in the past tense and said that she was feeding the fish in the Firth of Clyde. Mr O’Neill had told him that Mrs McG’s body had been disposed of in the Perch. Mr Higgins gave evidence that Mr O’Neill described Mrs McG as ‘a grassing bastard’. He said that Mr Lauchlan was present when many of these statements were made and that he would tend to laugh when Mr O’Neill made them. Mr Higgins also stated that Mr O’Neill had said on one occasion that he would be surprised by the number of bodies out there in the Firth of Clyde. He also spoke of a remark by Mr O’Neill that the legal system of this country was stupid as, unlike in Australia, without a body there could be no crime.
[21] Mr John Molseed gave evidence that, when they were in prison together, Mr O’Neill had told him that Mrs McG had been strangled to stop her going to the police and that her body had been put somewhere down at Largs beach under a sewer pipe. Ms Joanne Young said that Mr O’Neill had told her about a woman who had been fed to the fish …
Evidence of sightings after 21 June 1997
[7] At the trial, the advocate...
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