Michael Coyle Mcarthur V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Abernethy,Lord Johnston |
| Neutral Citation | [2006] HCJAC 83 |
| Published date | 10 November 2006 |
| Date | 10 November 2006 |
| Year | 2006 |
| Docket Number | XC1038/04 |
| Court | High Court of Justiciary |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Osborne Lord Abernethy Lord Johnston | [2006] HCJAC 83 Appeal No: XC1038/04 OPINION OF THE COURT delivered by LORD OSBORNE in NOTE OF APPEAL AGAINST CONVICTION and SENTENCE by MICHAEL COYLE McARTHUR, Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Kerrigan, Q.C., McLaughlin; McArthur Stanton, Dumbarton
Alt: Grahame, A.D., Crown Agent
10 November 2006
The background circumstances
[1] The appellant, along with John Thomas McCormack, faced an indictment containing two charges, the first a charge of murder and the second a charge of attempting to pervert the course of justice. On 26 November 2004 at the High Court in Glasgow, he was found guilty by a majority verdict of the jury on both of these charges, subject to deletions and amendments. It should be explained that, on 23 November 2004, the trial judge heard submissions of no case to answer from counsel for the appellant and for John Thomas McCormack. The submission made on behalf of the appellant was repelled, but that made on behalf of his co-accused was sustained.
[2] The terms of the charges on which the appellant was convicted were as follows:
"(1) on 7 or 8 May 2002 on waste ground on the bank of the River Leven near to the Linnbrae Hole, Alexandria, or elsewhere in West Dunbartonshire, you ... did assault Amy Frances Doreen Anderson, formerly of 5 Gray Street, Alexandria and did strike her repeatedly on the body and compress and constrict her neck, thereby restricting her breathing, all to her injury or by other means to the prosecutor unknown assault her and you did murder her...;
(2) between 7 May 2002 and 22 September 2002 both dates inclusive, at Wilson Street and at Alexandria Police Station, Hill Street, both Alexandria, at Dumbarton Police Office, Dumbarton and elsewhere in West Dunbartonshire, with intent to conceal your commission of the murder of Amy Frances Doreen Anderson ... and with intent to frustrate the course of justice you ... did:
(a) on 7 or 8 May 2002 at a place to the prosecutor unknown in West
Dunbartonshire you ... did dismember the body of said Amy Frances Doreen Anderson;
(b) between 7 and 14 May 2002 on waste ground adjacent to the bank of
the River Leven near to Linnbrae Hole, Alexandria, West Dunbartonshire, you ... did light a fire with intent to burn and did attempt to burn and destroy parts of the body of said Amy Frances Doreen Anderson and thereafter you did consign part of her body to the River Leven there;
(c) between 7 and 14 May 2002 at place or places to the prosecutor
unknown you ... did dispose of the remaining body parts of the said Amy Frances Doreen Anderson;
(d) ...
(e) ....
(f) on 10 May 2002 at Dumbarton Police Office, Dumbarton you ... did
falsely state to Detective Constable Archibald Fletcher and Detective Sergeant Michael McCormack, both officers of Strathclyde Police, Glasgow and then engaged in the investigation of that murder that you had last seen, and last been in the company of, Amy Frances Doreen Anderson at about 12.30 p.m. on 3 May 2002 at the Salvation Army Halls, Alexandria;
(g) on 13 May 2002 at Dumbarton Police Office, Dumbarton, you ... did
falsely state to Detective Constables Thomas Reynolds and George Scott, both officers of Strathclyde Police, Glasgow and then engaged in the investigation of that murder that you had last seen, and last been in the company of, Amy Frances Doreen Anderson at about 12.30 p.m. on 3 May 2002 outside the Salvation Army Hall in Alexander Street, Alexandria;
(h) on 16 May 2002 at Hill Street Police Office, Alexandria you ... did
repeat these false claims to said Michael McCormack and said Archibald Fletcher;
(i) on 17 May 2002 near Lennox Street, Alexandria, you ... did falsely
state to Sergeant Ian Cameron, an officer of Strathclyde Police, Glasgow, then engaged in the investigation of that murder that you had just found outside your container unit in the corner of Lennox Street and Wilson Street there, a DSS allowance book issued to Amy Frances Doreen Anderson and did repeat this account to Detective Constables Gerard McCann and Neil Duncan on 12 June 2002 at Alexandria Police Office, Alexandria; and
(j) on 26 July 2002 at Dumbarton Police Office, Dumbarton, you ... did
falsely state to Detective Constables Philip Peacock and Thomas Rodgers, both officers of Strathclyde Police then engaged in the investigation of that murder that Bryan Galloway, care of Strathclyde Police, Alexandria had on 7 May 2002 solicited your assistance to help him remove the dismembered body of Amy Frances Doreen Anderson from waste ground adjacent to Dalquhurn Industrial Estate and to conceal parts of her body in mud flats of the River Leven close to the A82 Bypass and that you had rendered such assistance to Bryan Galloway and by these false accusations did attempt to render Bryan Galloway liable to suspicion, accusation, arrest and prosecution by the criminal authorities for the murder of Amy Frances Doreen Anderson;
and by these means you ... did attempt to conceal the murder of Amy Frances Doreen Anderson by you and to divert police enquiries from the investigation thereof and with intent to pervert the course of justice and you did thus attempt to pervert the course of justice.".
[3] It should be recorded that the appellant, prior to his trial, lodged a notice of intention to incriminate his co-accused. He also lodged a special defence of incrimination naming Bryan Galloway, named in charge (2)(j) as being responsible for the murder. The indictment called for trial on 19 October 2004. Evidence was heard on 20 and 21 October. On 22 October, the appellant was unwell and the trial was adjourned until 25 October without any evidence being heard. Further evidence was heard on 25, 26, 27 and 28 October. During 28 October the appellant again became unwell and was taken to hospital. The trial was adjourned until 29 October. Thereafter no further evidence was heard until 9 November, because the appellant was in hospital undergoing tests. On 9 November the trial resumed and further evidence was heard on that date and on 10, 11, 12, 15, 16, 17, 18, 19 and 22 November, when the Crown case was closed after the reading of a Joint Minute. On 23 November the trial judge heard submissions of no case to answer. On 24 November one witness gave evidence on behalf of the appellant and a further Joint Minute was read to the jury, after which the case for the appellant was declared closed. On the motion of the Advocate depute, evidence in replication was allowed to be led from two further witnesses. On 25 November, certain amendments to the indictment were allowed, following which the Advocate depute and counsel for the appellant addressed the jury. The trial judge charged the jury on 26 November, on which date a verdict was reached. On 23 December 2004, the trial judge, in respect of charge (1), sentenced the appellant to life imprisonment, with a punishment part of 20 years; on charge (2) he was sentenced to 5 years imprisonment, these sentences being ordered to run concurrently from 1 September 2004.
[4] The salient facts of the case which emerged in evidence were as follows, The deceased, Amy Frances Doreen Anderson, was an heroin addict, who associated with other addicts in the Alexandria area, one of whom was the appellant. The deceased had been introduced to heroin by her boyfriend, Bryan Galloway, the incriminee in the case. She was last seen alive in the centre of Alexandria about 6.30 p.m. on 7 May 2002. At the beginning of May 2002, the appellant was living in a container unit, which was situated at a point in Alexandria a relatively short distance from the River Leven. The deceased had, at some stage, earlier in that year stayed with the appellant in his container for a night or two. The evidence disclosed that Bryan Galloway had been an in-patient in the Vale of Leven Hospital from 6 to 8 May 2002, having sustained certain stabbing injuries. During the night of 7 to 8 May, according to nursing notes, he was settled and sleeping. However, it would have been possible for him to have left the ward where he was without his absence necessarily having been noticed. In the early hours of 8 May 2002 several members of the nursing staff in the Vale of Leven Hospital heard the sound of screaming from an area of the hospital grounds. The source of this noise was not precisely established, but the Crown asked the jury to infer that it was connected with the death of the deceased.
[5] Also in the early hours of 8 May 2002, the appellant was observed by two witnesses, Kenneth and Robert Wrethman, on the bank of the River Leven in the area of Linnbrae Hole. He was seen to light a fire. Thereafter he put something on the fire which, according to one of these witnesses, gave off a horrible smell. A lot of black smoke was created. The appellant's dog, which was present at the time, displayed great interest in what was on the fire. Between 2.20 and 3.20 p.m. on 8 May 2002 a witness in Dumbarton saw an object floating in the River Leven there. It was in a black bag. The witness connected this with the body of the deceased when he heard that her torso had been found at the edge of the river in Dumbarton the following day. The torso was in fact discovered at about 7.45 a.m. on 9 May 2002. It was not in a bag on discovery. An autopsy of the torso was unable to establish the cause of death, but internal and external bruising was observed, together with petechial haemorrhages in the lungs. The latter might be indicative of asphyxiation.
[6] Following the discovery of the torso of the deceased, an extensive police investigation was undertaken. The appellant was interviewed several times by the police. During one interview he informed the police that he had had a dream about disposing of part of the deceased's body. In a later interview, he gave the police a detailed account of helping Bryan Galloway to dispose of...
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