Bill Of Suspension By Christopher O'shea Against Procurator Fical, Paisley
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Drummond Young,Lord Justice Clerk |
| Judgment Date | 27 November 2014 |
| Neutral Citation | [2014] HCJAC 137 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2014‒1560 |
| Published date | 19 December 2014 |
| Date | 27 November 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Justice Clerk Lord Bracadale Lord Drummond Young
| [2014] HCJAC 137 HCA/2014‒1560/XC
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
NOTE OF APPEAL AGAINST CONVICTION
by
CHRISTOPHER O’SHEA Appellant;
against
HER MAJESTY’S ADVOCATE Respondent:
_____________ |
Appellant: Jackson QC, Considine, solicitor advocate; Fitzpatrick & Co, Glasgow
Respondent: P Kearney AD; the Crown Agent
27 November 2014
Introduction
[1] On 12 February 2014, after an 8 day trial at the High Court in Paisley, the appellant was found guilty of the following charges:
“(1) on 8 July 2013 at Bridge Street, near to its junction with Fulwood Avenue, Linwood you … did assault Craig McSporran … and did repeatedly strike him on the body with a knife or similar instrument and you did murder him;
(2) on 8 July 2013 at Bridge Street, near to its junction with Fulwood Avenue, Linwood you … did assault Derek Mark MacNeil … and did repeatedly strike him on the head and body with a knife or similar instrument to his severe injury, permanent disfigurement and you did attempt to murder him”.
On 18 March 2014, a sentence of imprisonment for life was imposed with a punishment part of 18 years in respect of charge 1. A concurrent 10 years was imposed on charge 2.
Evidence
[2] The complainer in charge 2, namely Derek McNeil, and the deceased in charge 1, namely Craig McSporran, had been drinking prior to joining each other at the Heritage Bar, Bridge Street, Linwood. After closing time, they made their way northwest on Bridge Street and around the corner westwards into Fulwood Avenue. The first houses on the north side of Fulwood Avenue are numbers 2 (ground) and 4 (upper). The deceased was carrying a glass of beer, which he and the complainer both drank from in turns.
[3] According to the complainer, once they had reached a point outside numbers 2 and 4, the appellant ran towards them from the path at number 4. He was carrying a knife. The complainer ran back into Bridge Street, going towards the Heritage. He turned to see the deceased on the ground with the appellant standing over him wielding a knife. The deceased and the appellant were in Bridge Street, out of view of persons in the vicinity of 4 Fulwood Avenue. It was not disputed that this is where the murder took place. The complainer moved towards where the deceased was lying, but the appellant came at him again with the knife. The complainer stumbled and fell further down Bridge Street. The appellant struck him on the head with the blade and handle of the knife. The complainer was stabbed in the upper thigh.
[4] Shortly before the man with the knife had run out, someone had thrown an object through the stair window of number 4, which was occupied by the appellant, his partner Margaret Rooney and their several children. Whether this had been the deceased, the complainer or an unrelated third party, remained unresolved.
[5] Isabel Gribben said that she had been walking eastwards in Fulwood Avenue towards Bridge Street. She had encountered Mrs Rooney in a frantic state, screaming and crying, in the middle of the road outside number 4. Mrs Rooney was looking towards Bridge Street and repeating: “They bastards smashed my window” and “My man’s round there”, or “My man’s down there”. Shortly thereafter, a man ran towards them from Bridge Street. He seized Mrs Rooney by the arm and said, “Come on” and “Let’s get in”, before the two of them went up the path towards the entrance to number 4. Miss Gribben’s impression was that the man was Mrs Rooney’s partner.
[6] Mrs Rooney testified that she had been alone in the house when a brick came through the stair window. She had run outside in a frantic state, shouting out what had happened. She saw two men, presumably the complainer and the deceased, running eastwards in Fulwood Avenue towards Bridge Street. She then saw two different men running from her right, eastwards in the same direction. One of them had told her to go “back” into the house “with the weans”. She had done so, but had come back out immediately thereafter and met Miss Gribben. She accepted that she had been frantic. She admitted that she had said to Miss Gribben that somebody had just put a brick through her window, but she denied saying, “My man’s away after them”. She maintained that she had said, “There’s a guy after them”. One of the unidentified men had then returned, run down the path towards her front door and into the porch saying, “I thought I told you to stay in the f…ing house”. The unidentified men had not been seen by the complainer, Miss Gribben or another woman at the scene, namely Cherie Christie.
[7] Other evidence placed Mrs Rooney in the middle of the road, talking to Miss Gribben, and a man running from Bridge Street into the garden at number 4. One witness told the police that this had been the same man as occupied number 4 (ie the appellant), although he failed to identify him at a parade. He also said that it was a different person from a man that he had later seen emerging from a taxi at number 4 (infra).
[8] Miss Gribben had continued into Bridge Street where she found the deceased lying on grass, holding his stomach. The complainer was staggering in the roadway.
[9] Half an hour after the incident, a taxi was called to another address in Linwood, namely the home of the appellant’s mother. The appellant and his two brothers got into this taxi, with the appellant specifically introducing himself to the taxi driver by name. The taxi arrived at 4 Fulwood Avenue. The appellant went into the house and returned to pay the driver. In due course, the two brothers gave evidence that, at the material time, the appellant had been with them at their mother’s address. The appellant had, by then, also testified on his own behalf in support of this alibi. However, there was other evidence to suggest that, after the incident, the appellant had cycled from his home to that of his mother and that the alibi had been concocted.
Charge to the jury
[10] In advance of his charge, submissions had been made by the appellant and the advocate depute relative to the value of the evidence about what Mrs Rooney had told Miss Gribben outside number 4. The trial judge gave parties an indication of his intended directions. The speeches proceeded upon that understanding. The advocate depute did not suggest to the jury that the only evidence available to corroborate the identification of the appellant by the complainer came solely from Miss Gribben. Rather, he said that there were a number of pieces of circumstantial evidence pointing to the appellant as being the assailant; not least the fact that the man coming from Bridge Street had returned to number 4 and escorted Mrs Rooney back into the house.
[11] The trial judge provided the jury with standard directions to the effect that hearsay could not be used to prove the essentials of a charge against an accused. He explained that there were a number of exceptions to that rule, which allowed a jury to treat hearsay as evidence of fact. He continued as follows:
“One of the exceptions is this: hearsay evidence are (sic) available for a jury to assess as evidence of the essential facts if they are made at the time of the events in question and can … properly be understood as forming part of the events as events happened. Statements made by individuals directly involved in the event at the time can be treated as part of what is happening. Statements made by onlookers and bystanders who are emotionally involved or affected and make a spontaneous utterance or utterances can be treated as part of what is happening.”
Immediately after this direction, he referred to the evidence of Miss Gribben about what she had said Mrs Rooney had told her. He directed the jury specifically that this evidence was potentially available “specifically for determining the identity of the attacker”.
[12] Much later in his charge, the trial judge returned to the question of identification. Having referred to the complainer’s evidence, he directed the jury that there were “many other pieces of evidence” available as support for his testimony, but that:
“As I understand the advocate depute’s submission, the main other source … available to you of positive identification, there may be circumstantial evidence, but the main other source available of positive identification is the remark attributed by Isobel Gribben to Margaret Rooney about ‘my man’ …
If you reach the conclusion that Margaret Rooney did, indeed, effectively tell Isobel Gribben that it was [the appellant] who had gone up to Bridge Street, then you also have to decide whether that remark, whether uttered once or repeatedly, was uttered spontaneously while the event was unfolding and was uttered under the emotional pressure of whatever event she might have got caught up in, or perceived herself as getting caught up in. …
If you do not find that Margaret Rooney effectively blurted out about ‘my man’ under emotional pressure and spontaneously as the event unfolded, then you cannot treat whatever she said as evidence against [the appellant].
For safety’s sake, I direct you that unless you find that Margaret Rooney effectively identified [the appellant] by talking about ‘my man’ at the time as the man who went round the corner, applying the rules that I have given you, then you do not have corroboration for the identity of the perpetrator and you would have to acquit …”.
The trial judge therefore ultimately gave the jury a clear direction that the evidence of what Mrs Rooney had said, as described by Miss Gribben, was essential and that, without it, there was no corroboration of the complainer’s identification.
Ground of Appeal and Submissions
Appellant
[13] The Note of Appeal contained the following single ground, for which leave to appeal was granted:
“The trial judge erred...
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