Michael Alexander Ross V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Bonomy,Lord Justice General |
| Judgment Date | 17 August 2001 |
| Neutral Citation | [2012] HCJAC 45 |
| Published date | 04 April 2012 |
| Court | High Court of Justiciary |
| Docket Number | XC670/08 |
| Date | 03 April 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Carloway Lord Bonomy | [2012] HCJAC 45 Appeal No: XC670/08 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by MICHAEL ALEXANDER ROSS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Scott, Q.C., Shead; PDSO, Inverness
Respondent: Shand, Q.C., A.D.; Crown Agent
3 April 2012
The murder
[1] On the evening of 2 June 1994 Shamsuddin Mahmood, a Bangladeshi national, was working in the course of his employment in the Mumutaz Indian Tandoori Restaurant, Bridge Street, Kirkwall, Orkney. At about 7.15pm as he was serving a meal to a family of adults and children dining there a male, with his face masked by a balaclava, entered the restaurant, marched up to Mr Mahmood and shot him in the head with a handgun. He died almost instantly. The assailant promptly left the restaurant.
The procedure
[2] In May and June 2008 the appellant stood trial for that murder. A circumstance which may have contributed to the long delay in bringing the prosecution was that a witness, William Grant, informed the police only many years after the murder that he was in a position to give incriminating evidence against the appellant. The Crown authorities may have taken the view that, without that evidence, a prosecution was not justified. Grant gave evidence at the appellant's trial. He was a less than satisfactory witness. In his address to the jury counsel for the appellant submitted that the trial judge should direct the jury that, if they did not accept Grant's testimony, they were bound to return a verdict of acquittal, there being insufficient evidence in law without it to allow a guilty verdict to be returned. The trial judge declined to give such a direction. He expressly directed the jury that, as a matter of law, there was a sufficiency of evidence even without Grant's testimony.
[3] The appellant having been convicted of the murder, and of a related charge of attempting to defeat the ends of justice, appealed against conviction and also against the sentence imposed by the trial judge (life imprisonment with a punishment part of twenty five years). One of the grounds of appeal lodged was a challenge to the judge's direction referred to above. At the appeal hearing, however, Miss Scott, who then appeared for the appellant, abandoned a number of the stated grounds of appeal against conviction, including that challenge. It was thus conceded that, absent Grant's evidence, there was sufficient evidence in law for the jury to consider. That concession was clearly, in our view, correctly made. Miss Scott also abandoned the appeal against sentence. The remaining grounds of appeal against conviction were two: (1) Ground 9 (against a refusal by the trial judge to allow certain evidence from a psychologist to be adduced by the defence) and (2) an additional ground of appeal (contending that the appellant's Convention rights had been infringed by the leading by the Crown at the trial of certain testimony - the content of several recorded interviews of the appellant by the police in the course of their enquiries in December 1994).
The background
[4] The appellant was born on 28 August 1978. He was accordingly 15 years of age at the time of the murder and 16 when the now contested interviews took place. The appellant's father had served in the Army and it had long been the appellant's ambition to follow him in that career. He ultimately did so and served with distinction, attaining the rank of Sergeant. He married and has two children. At the time of his trial he was 29 years of age.
[5] After leaving the Army the appellant's father, Edmund Ross, joined the police force. In 1994 he was serving as PC Ross at Kirkwall. He retained a keen interest in firearms, a number of which he kept at his home at St Ola, near Kirkwall. Also living there were his wife, the appellant and the appellant's brother and sister. The appellant also had a keen interest in firearms and in military matters. He was a member of the local Army Cadets. He regularly took part in shooting exercises with firearms, including pistols.
The police enquiries
[6] A highly significant item of evidence ingathered at the outset of the police enquiries was a spent cartridge case recovered from the floor of the restaurant. PC Ross, being experienced in firearms, was shown this cartridge case which he identified as that for a 9mm bullet manufactured in the Kirkee Arsenal in India. PC Ross was also given responsibility for carrying out test firings of all known handguns on the island. Additionally, he had limited other duties at the outset of the enquiries - preserving the crime scene and interviewing, on 3 June 1994, two witnesses. He was not otherwise a member of the police enquiry team, which was headed by Detective Superintendent Gough. Detective Inspector Chisholm was a senior member of that team. Both these officers had been brought in from Inverness for the purpose.
[7] On 12 August 1994 PC Ross approached DI Chisholm and informed him that he had found a box of 9mm Indian bullets among his own personal ammunition stock. The box was taken into police custody. It remained sealed and appeared to be a complete box of thirty five 9mm bullets. On examination of one of the bullets the casing was found to have identical markings with the casing recovered from the restaurant. Ross was reluctant to provide information to DI Chisholm about the provenance of the box of bullets but eventually named his supplier as James Spence, another ex-soldier, living in Kirkwall. Spence was interviewed when he stated that he had taken the box with him when demobbed in 1980 and had in about 1985/86 handed it over, with a box of .22 bullets, to Ross for destruction. He insisted that he had handed over to Ross only these two boxes. It subsequently emerged that that statement was false. In fact, Spence had also handed to Ross a further open and partly used box of 9mm Kirkee bullets. Ross had persuaded Spence to tell the police that he (Spence) had handed over to Ross only the sealed box of 9mm bullets. Ross was subsequently charged with, and later convicted of, attempting to pervert the course of justice. He was sentenced to a term of imprisonment. Police enquiries in early 1995 also disclosed that Ross had in about 1989/90 received at least one unlicensed handgun from a local arms dealer.
[8] A line of enquiry being pursued by the police from a relatively early stage was the sighting on the afternoon of 19 May 1994 of a male in Papdale Woods, Kirkwall, wearing a balaclava and otherwise dressed similarly to the killer in the restaurant. A schoolgirl, Lynn Railston, and a friend, had noticed this individual crouching behind a wall by the Woods as they walked home. When Lynn Railston reached home she mentioned this sighting to her mother, Margaret Railston. Both Miss and Mrs Railston watched the individual from their home for about twenty five minutes. Lynn Railston watched him through binoculars. They observed him also as, towards the end of his activities there, he removed some of his clothing, including the balaclava and a distinctively patterned white coloured T-shirt. He had with him a rucksack or similar item. He ultimately left the scene in a purposeful manner. Lynn Railston subsequently prepared an E-FIT of this male and a sketch of the T-shirt. The description revealed a striking similarity to the killer as described by the witnesses in the restaurant.
[9] On 8 September 1994 Lynn Railston advised the police that she had just seen again the male she had sighted in Papdale Woods. He had walked into the shop where she was working. Later that day she pointed out in the street an individual as resembling the person she had seen in Papdale Woods. Her mother, who was also present, confirmed to the police that identification. That individual was subsequently identified as the appellant.
[10] Later PC Ross told DI Chisholm that the appellant had a T-shirt of the distinctive pattern of that worn by the male in Papdale Woods. On 24 September 1994 DI Chisholm asked PC Ross to go home and bring the appellant and the T-shirt to the police station. They arrived there at about 10.55am when the appellant was interviewed, in the presence of his father, by DI Chisholm and Detective Sergeant Mackenzie. He was not cautioned. His responses were recorded in a Witness Statement. He was asked initially about his movements on 19 May. He denied being in Papdale Woods on that day. He admitted to having a black balaclava, with separate eye holes and mouth hole. He said that, sometime after the murder, he had taken it to school to show to a friend, Alan Robertson, but in the event that friend had not been at school that day. His mother had subsequently discovered the balaclava in his schoolbag and his father, on being told about this, had given him a row. Shortly thereafter the appellant had thrown the balaclava into the sea. He was also asked about his movements on the day of the murder. He said that about 6.30pm he had left home and cycled into Kirkwall, where he had cycled about in the Papdale East housing scheme; at about 7.00pm or shortly thereafter he had met two schoolmates, Ingrid Watson and Hayden Hourston, and spoken to them for about five minutes; he had then cycled home; he was nowhere near the restaurant at any point; as he was cycling home he had heard the sound of emergency vehicle sirens; he had arrived home at about 8.00pm. At the conclusion of this interview the appellant left the police station.
[11] The police enquiries continued. Hayden Hourston, Alan Robertson and Ingrid Watson were each interviewed. None of them appeared to support the appellant's account. On 2 December 1994 DI Chisholm decided that the appellant should be re-interviewed. PC Ross brought him into the police station early that afternoon. On this occasion DI Chisholm decided to interview the appellant outwith...
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