Barry John Mcgrory V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lady Paton,Lord Marnoch |
| Neutral Citation | [2011] HCJAC 126 |
| Docket Number | XC314/10 |
| Date | 21 December 2011 |
| Year | 2011 |
| Court | High Court of Justiciary |
| Published date | 28 February 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lady Paton Lord Marnoch | [2011] HCJAC 126 Appeal No: XC314/10 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by BARRY JOHN McGRORY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead, MacKenzie; Gilfedder & McInnes
Respondent: Ferguson, Q.C., A.D.; Crown Agent
21 December 2011
[1] The appellant was convicted after trial in the High Court at Glasgow of the murder in the early hours of 25 October 2009 of Paul John McGee, a serving soldier then on leave. He was sentenced to life imprisonment, a punishment part of twenty years being specified. The deceased had died from a stabbing injury. On the same indictment was Ian Wallace, who was not charged with the murder but with a number of assaults, including an assault on Paul John McGee, which had preceded the fatal attack. After the close of the Crown case Wallace pled guilty to one of these charges of assault and thereafter to the remaining three of them. The trial then proceeded against the appellant alone.
[2] In the course of the Crown case the Advocate depute had put in evidence transcripts, in redacted form, of two interviews which the co-accused, Wallace, had had with police officers later on 25 October, The recordings of the interviews, in edited form, were played in the jury's presence. Copies of the redacted transcripts were issued to them. The appellant was, of course, not present at either of these interviews. In each of them Wallace gave an account of the events which culminated in the deceased's death. In the first of these interviews he stated that late on the evening of 24 October the appellant had arrived at a house where he and his girlfriend were babysitting for a relative. Thereafter Wallace and the appellant had gone out together in the appellant's car. As they were going towards Lochwinnoch a taxi came up behind their car, kept flashing its lights and then overtook and cut in in a manner which just avoided contact with the front of the appellant's car. The appellant, according to Wallace, was upset at this conduct and proceeded to follow the taxi. The taxi stopped, as did the appellant's car, various persons disembarked and a fight began. At one point the appellant told Wallace to get back into the car, which he did. The appellant drove off. Wallace then noticed that the appellant had possession of a handbag and a purse, which he threw out of the car while it was moving. Wallace then stated:
".. an the blade, he threw the blade tae me, when we were sitting in the motor, like that get rid of that, get rid of that, a wis like that get tae fuck. ... Doesnae matter if you touch it. An a done that wi ma jayket an a like tried to like throw it oot the cor because he was fuckin ready to start on me. He wis like fuckin dae, dae it, an a threw it oot an a think it's lying at the Gryffe, just at the edge, on next to the wee bridge."
[3] At the second interview a few hours later Wallace gave a similar account of events leading up to the fight and of being driven off by the appellant. As he described the route which was then taken the following exchange took place:
"Suspect: That's when ad realized that he'd the bag an that and then as we got alang a bit mair that's when he threw the knife, he's like that throw it oot the windae, throw it oot the windae. He said ave lost the hondle off it, must still be up there, must still be up there.
DC1: What did the knife look like?
Suspect: It was a big fuckin thing, an army knife type thing.
...
DC1: And could you see a handle on the knife?
Suspect: A didnae look at it mate a just tossed it, ... a know that much.
DC1: So he's tossed it to you, where does it go when he tossed it at you?
Suspect: Landed on the erm of ma jacket an a threw it oot the windae aye, tossed it outside the windae."
Later in that interview Wallace was asked about his involvement in the fight. The following exchange took place:
"DC1: Did you stab anybody with a knife during this?
Suspect: Naw.
DC1: Did you have a knife in your possession?
Suspect: Naw."
Towards the end of the interview Wallace was arrested and told he would be charged with murder. In response to a caution he said, "Naw, I never murdered anybody."
[4] In advance of the trial the appellant gave notice of his intention to incriminate Wallace for the murder. It was plain that the deceased had died from a stab wound. In practical terms the issue at the trial was whether that wound had been inflicted by Wallace or by the appellant.
[5] The transcripts of Wallace's interview had been admitted in the course of the Crown case. Their whole contents were, arguably at least, admissible against Wallace as implicating him on the assault charges which he faced. However, once Wallace had pled guilty and the trial proceeded against the appellant alone, these transcripts were not properly available for the jury's consideration unless Wallace gave evidence and the transcripts were used for the purpose of challenging his credibility or reliability. Wallace was not in the event called as a witness. Given the contents of the interviews, in particular, Wallace's account of the appellant's instructions as to the disposal of the knife and Wallace's denial that he had had it in his possession in the course of the fight, it was clearly important that the jury be instructed that, for the purpose of determining the case against the appellant, they should ignore what Wallace had said outwith the appellant's presence - this being prejudicial, and by that stage inadmissible, evidence. The jury received no instruction to that effect.
[6] Somewhat surprisingly each of the Advocate depute and counsel for the appellant made some reference, in their closing addresses to the jury, to what Wallace had said at interview. But the making of these references did not absolve the trial judge from the duty to direct the jury that what Wallace had said at interview, in so far as directly or indirectly incriminatory of the appellant, should be disregarded by them in their deliberations. His omission to do so was a misdirection (Jones v HM Advocate 1981 SCCR 192; Muirhead v HM Advocate 1999 SLT 1231; McArthur v HM Advocate [2006] HCJAC 83). It would also have been appropriate to withdraw the copy transcripts from the jury before they retired.
[7] There remains the question whether that misdirection resulted in a miscarriage of justice. In McInnes v HM Advocate 2010 SCCR 286 the Supreme Court had to address the question whether, in the context of non-disclosure by the Crown of certain material, there had, in contravention of Article 6 of the European Convention, not been a fair trial. Lord Hope said at para 24:
"The question which the appeal court must ask itself is whether after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant's Convention right, the jury's verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome - if the jury might reasonably have come to a different view on the issue to which they directed their verdict if the withheld material had been disclosed to the defence."
In the immediately preceding paragraph he had said:
"The threshold [for the reversing of the verdict of the jury] which must be crossed is the same as that which applies in any case where it is maintained that, because there was a violation of Article 6(1) that affected the way the trial was conducted, there has been a miscarriage of justice. I also agree that, in a case of that kind, the question whether there has been a miscarriage of justice and the question whether the trial was unfair run together. It is axiomatic that the accused will have suffered a miscarriage of justice if his trial was unfair. The statutory ground for setting aside the jury's verdict under section 106(3) of the 1995 Act enables the appeal court to provide an effective remedy to the appellant for the breach of his Convention right. This is done when the appeal court makes its own assessment as to whether the trial as a whole was fair. It will allow the appeal on the ground that there was a miscarriage of justice if it concludes that it was not."
Lord Rodger said at para 30:
"... the law deals in real, not in merely fanciful, possibilities. So, in cases like the present, an appellate court will only hold that a trial has been unfair and quash the jury's verdict as a miscarriage of justice if there is real possibility that, if the statements had been disclosed, a jury might reasonably have come to a different verdict. Mutatis mutandis, this is the same as the test in Stirland v Director of Public Prosecutions, which has often been applied by the appeal court."
Lord Brown said at para 35:
"What, then, in the context of an undisclosed statement, makes a trial unfair? This, ultimately, is the determinative question in the case. I would answer it as follows. The trial will be adjudged unfair if, but only if, the appeal court concludes that the non-disclosure gave rise to a real risk of prejudice to the defence. This in turn depends upon whether the appeal court regards the non-disclosure as having denied the defence the real possibility of securing a different outcome. In short, in a case such as this, the appeal should be allowed if the court decides that, had defence counsel been in a position to make use of the undisclosed statement, the jury might reasonably have come to a different conclusion, otherwise not. It is that which must decide whether the jury's verdict should be...
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