James Scott Mcdonald+raymond Anderson V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Kingarth,Lord Philip |
| Neutral Citation | [2010] HCJAC 95 |
| Date | 01 October 2010 |
| Published date | 01 October 2010 |
| Court | High Court of Justiciary |
| Year | 2010 |
| Docket Number | XC319/08 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Kingarth Lady Paton Lord Philip
| [2010] HCJAC 95 Appeal No: XC319/08 XC331/08
OPINION OF THE COURT
delivered by THE RIGHT HONOURABLE LADY PATON
in
APPEALS AGAINST CONVICTION
by
(FIRST) JAMES SCOTT McDONALD (SECOND) RAYMOND ANDERSON Appellants;
against
HER MAJESTY’S ADVOCATE Respondent:
_______
|
First Appellant: Findlay Q.C., V. Young, Advocate; J.C. Hughes, Glasgow
Second Appellant: Jackson Q.C., Lenehan, Advocate; Paterson Bell
Respondent: Allan Q.C., Advocate Depute; Crown Agent
1 October 2010
Introduction[1] Shortly before 2.12 pm on Wednesday 6 December 2006, a blue Mazda car registration number S733ESF drew up outside a garage Applerow Motors, 730 Balmore Road, Cadder, Glasgow. The garage was owned by David Lyons, and was operated by him and his son Mark. Mr Lyons’ nephew Michael Lyons was at the garage, servicing a van and a car. Another nephew, Steven Lyons, was visiting the garage with a friend Robert Pickett. Two men got out of the Mazda car and walked into the garage forecourt. The weight of the evidence suggested that they were wearing masks representing old men’s faces (although this issue is discussed further below). Each man produced a gun, and began shooting. Michael Lyons was killed. Steven Lyons and Robert Pickett were injured. The gunmen ran back to the Mazda car, got in, and drove off. The car was subsequently found on Friday 8 December 2006 abandoned in Vaila Street, a short distance from the locus.
[2] After intensive police investigations, including the discovery in January 2007 of guns and ammunition at several addresses in Glasgow, the appellants were charged inter alia with illegal possession of firearms and ammunition, attempted murder, and murder. The second appellant’s son, Raymond Anderson junior, was also a co‑accused, but by January 2008 he had been removed from the indictment. The appellants stood trial at Glasgow High Court from March to May 2008. At the end of the Crown case, neither appellant made a submission of “no case to answer”. The first appellant did not give or lead any evidence. The second appellant gave evidence and witnesses were led on his behalf.
[3] One important Crown witness, John Corkish (incriminated in relation to the murder and attempted murder charges by the second appellant [185]) gave evidence in such a way that senior counsel for the first appellant suggested to the jury that Corkish was wholly incredible and unreliable, and that his evidence should be disregarded. In that event, counsel suggested to the jury that there was insufficient evidence to convict the first appellant of murder and attempted murder. Furthermore in his jury speech, counsel invited the trial judge to direct the jury that if they did not accept Corkish’s evidence, there was insufficient evidence in law against the first appellant in relation to those offences. The trial judge responded at pages 27 to 28 of his charge as follows:
“In his submissions to you, Mr Findlay [counsel for the first appellant] stated that if you rejected the evidence of Mr Corkish there’s insufficient evidence to convict the first accused. Mr Prais [counsel for the second appellant] didn’t go as far as that in relation to the second accused, but said that Corkish was one of the pillars, or foundations, of the Crown case and if it was removed, the case crumbled. Ladies and gentlemen, I have to tell you, while the evidence of Corkish is undoubtedly of considerable importance in the Crown case against both accused, there is, in law, a sufficiency of evidence against both accused without the evidence of Mr Corkish. Whether you accept that other evidence is a matter for you, and whether it convinces you that the Crown has established the guilt of either accused is also a matter for you …”
[4] On 2 May 2008, each appellant was convicted by unanimous verdict of illegal possession of guns and ammunition, and by majority verdict of the attempted murder of Steven Lyons and Robert Pickett, and the murder of Michael Lyons [3] {5}.
[5] The appellants appeal against conviction so far as relating to murder and attempted murder. Both contend that the judge erred in directing the jury that, without the evidence of Corkish, there was sufficient evidence for conviction of those offences. The first appellant has a further specific ground of appeal, namely that no reasonable jury could have relied upon the identification evidence purportedly given by the Crown witness AH. The second appellant also has a further specific ground of appeal, namely that the trial judge erred in admitting into evidence a production referred to as “the Piper letter”.
Circumstantial case against the appellants[6] The trial judge’s two reports detail the evidence led at the trial. The first report summarises the case against the first appellant, and the second report summarises the case against the second appellant. In this opinion, references in square brackets [e.g. 1, 39] denote pages in the first report; references in curly brackets {e.g. 5, 21} denote pages in the second report. These two reports, together with the judge’s charge, give an outline of the various strands of circumstantial evidence upon which, in the judge’s view, the jury were entitled to rely if they so chose. The strands are noted below. They include some evidence led by the defence, as the appellants’ argument is that, taking into account all the evidence (excepting Corkish’s), there was insufficient evidence to prove beyond reasonable doubt that they were the two gunmen involved in the shooting. The appeal is not therefore limited to an examination of the evidence led by the Crown, as would be the case in an argument based on section 97 of the Criminal Procedure (Scotland) Act 1995.
Close personal and business association between appellants
[7] The evidence disclosed that the two appellants had been business associates and friends for many years. The second appellant was a self-employed car-dealer. He employed the first appellant to buy, valet and repair cars, paying him a wage of £150 per week. Importantly, the first appellant bought cars only for the second appellant or for the second appellant’s son Raymond Anderson junior [173]. He did not buy cars for any other person or business. The appellants often communicated with each other by mobile telephone. During the trial, the first appellant’s mobile phone was referred to as the “orange” mobile; the second appellant’s as the “green” mobile; and Raymond Anderson junior’s as the “blue” mobile.
Appellants’ involvement in purchase of Mazda car used in shooting
[8] On 4 December 2006, at about 4 pm, a Ford Focus car was purchased from a Mr Carvalho. From a combination of evidence, the trial judge concluded that the jury were entitled to infer that the Ford Focus was purchased by Corkish on behalf of the first appellant (who gave Corkish a lift to the sale point {154}); that the Ford Focus had not been test-driven by Corkish and was subsequently found to have a defective clutch; that the Ford Focus was brought by Corkish to the second appellant and that money changed hands such that the first and second appellants became joint owners; that the Ford Focus was used by the second appellant and his partner Margo Henderson until it was sold in February 2007 {145}; and that when the car was sold, the proceeds were divided equally between the first and second appellants.
[9] Later on the same day, 4 December 2006, at about 9 pm (i.e. a few hours after the purchase of the Ford Focus), the blue Mazda car used in the garage shooting was purchased from a Mr Young in Clarkston [41]. From a combination of evidence establishing that the first appellant purchased cars only for the second appellant or his son [173]; telephone calls from the first appellant’s orange mobile to Mr Young in which the caller asked for directions from Maryhill to the sale point in Clarkston [40‑41]; telephone calls from the first appellant to the second appellant’s green mobile (received at the latter’s home at Jerviston Road [55] {144}) asking for directions to Clarkston [52-56]; other numerous telephone calls between the orange and green mobiles during the evening of 4 December 2006 [180]; and finally the evidence of the second appellant, the trial judge concluded that the jury were entitled to infer that the first appellant purchased the blue Mazda car (using Corkish as his agent [153]), and that the second appellant was also involved in the transaction.
AH’s evidence that the first appellant was similar to one of the gunmen
[10] A 15-year-old schoolgirl AH was being driven north on Balmore Road on 6 December 2006 by her mother. AH heard and saw parts of the shooting incident. She heard gunshots. She saw two gunmen running out of the garage, getting into the Mazda car and driving off behind her mother’s car. She watched the Mazda driving behind her car and turning left into Skirsa Street. Later, when assisting the police, she described the man who got into the passenger seat [26] as tall, wearing an old man’s hat, with a long jacket to his knees. She saw his face (which she did not think was masked), and thought that he was aged about 40, with old man’s wrinkles around his mouth and quite a big nose. She did not see so much of the driver, but thought that he was about the same age and height as the passenger. Both men were tall and slim. At a subsequent identification parade on 10 March 2007, she initially made no selection. When asked if any of the men were similar, she selected the first appellant. She said that she picked him out because of the wrinkles round his mouth and his big nose: he was “similar” to the man she had seen getting into the passenger seat, and it could have been the same person. The trial judge directed the jury that her evidence could not be regarded as an identification, but it was nevertheless an adminicle...
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