Sean Toal V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Carloway,Lord Kingarth |
| Neutral Citation | [2012] HCJAC 123 |
| Date | 20 September 2012 |
| Year | 2012 |
| Court | High Court of Justiciary |
| Docket Number | XC659/05 |
| Published date | 20 September 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General | [2012] HCJAC 123 OPINION OF THE LORD JUSTICE GENERAL in the APPEAL AGAINST CONVICTION AND SENTENCE by SEAN TOAL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead, Mackenzie; Mann Solicitors, Glasgow
Respondent: Bain QC, AD; Crown Agent
20 September 2012
I. THE CONVICTION
[1] On 26 July 2005 at Glasgow High Court the appellant was found guilty of the following charge:
"(1) on 8 August 2004 at Tirich Mir, Mollinsburn Road, and Annathill Gardens, both Annathill, Coatbridge you DAVID WINTERS, GARY ORR, SEAN TOAL and GRANT YOUNG did assault Paul McGilveray, now deceased, and repeatedly punch and kick him on the head and body, attempt to strike him on the body with a bird bath and repeatedly strike him on the head and body with a knife or knives or similar instruments and you did murder him."
[2] The Crown withdrew the charge against Winters and Young. The jury found the charge against Orr not proven. On 24 August 2005 the appellant was sentenced to life imprisonment with a punishment part of fifteen years.
[3] The appellant appeals against conviction and sentence. We are concerned at this stage only with the appeal against conviction.
II. THE TRIAL
The Crown case and the appellant's defence
[4] The Crown case was that the appellant killed the deceased by one stab wound to the chest. The case against Orr was that he participated in the murder by his presence and encouragement. The appellant accepted that he had inflicted certain wounds on the deceased. His defence was that those wounds were not the cause of death. He incriminated Young for having inflicted the fatal wound.
The background
[5] In the evening of 7 August 2004 there was a party at the house of Rachael Condie, the appellant's girlfriend. The four accused were present with Condie and Lindsay Rooney, the girlfriend of the deceased.
The eye witnesses
Lindsay Rooney
[6] Rooney said that in the early evening the appellant asked her about bruising that he had noticed on her shoulder. She told him that she had been carrying on with the deceased. She said that the appellant was "getting all worked up about it" and was angry towards the deceased. The appellant said "I'll fucking kill him".
[7] Rooney said that the deceased called her on the telephone about coming to the party. She handed the phone to the appellant, who told him "Come up as long as no bother starts." The deceased asked Rooney what the appellant meant by that.
[8] In the late evening the deceased turned up at the house and spoke to Rooney in the front garden. Then the appellant and Orr pushed past her, knocking her over. The appellant struck the deceased on the chest area. In cross examination Rooney said that the blow was to the chest or head, to the chest upwards. She said that she became covered in blood. She had broken her ankle and was helped inside by Winters. The house was empty.
[9] The appellant, Young, Winters and Condie returned to the house. The police arrived. She tried to tell them what had happened, but Young told her not to say anything.
[10] Rooney was cross-examined about other aspects of her account to the police. She had told police initially that her boyfriend had started a fight in the garden, which began before she left the house. She had been knocked over and covered in blood, but she did not know who knocked her over or whose blood it was. In court she said that she had given a different account to the police because she had been drunk, in shock, in pain and "mixed up."
Joseph Gorman
[11] Joseph Gorman was a friend of the deceased. His partner was the deceased's cousin. On the evening of the incident he drove the deceased and Jonathan Cocozza to the locus to pick up Rooney. On the way he heard the deceased say on the phone that he was going there only to pick up his girlfriend and that he did not want any trouble.
[12] On arrival, the deceased left the car first and walked to the door. Gorman then heard girls screaming. He and Cocozza ran to the house. He saw women being pushed out of the way and men "piling out the house." The deceased was backing off from someone who had two knives.
[13] Gorman told the police that the assailant had a "pig nose wie square features". The assailant had his top off and was attacking the deceased using stabbing movements that made contact with the chest area. There was another man behind the assailant. Gorman jumped over Rooney and punched the assailant square on the mouth. He also grabbed one of the assailant's knives.
[14] Gorman saw Cocozza in a hedge fighting with someone whom he could not see. This man stabbed Cocozza in the arm. Gorman "docked" him and got the deceased and Cocozza to leave the garden immediately.
[15] They returned to their car while the men who had fought with them returned to the house. Gorman could not start the car. They decided to flee. The other men came back and chased them. One of them hacked once with a knife at the deceased's head. He was the smaller one. Gorman said that he thought that it was the appellant.
[16] The deceased collapsed and died soon after. Gorman put the knife that he had taken from the assailant next to a fence. He identified the knife that the police recovered from the fence (Crown label 3) as the knife in question.
[17] Gorman identified the appellant as the assailant at an identification parade and in court. The advocate depute initially understood Gorman to have identified Young in the dock, but after the trial judge intervened to obtain clarification, Gorman said that he was identifying the appellant.
[18] When he was cross-examined on behalf of Orr, it was put to Gorman that he had told police that the assailant was wearing a t-shirt. Gorman said that he had his top off. Gorman was cross-examined by counsel for the appellant about his statement to the police that the assailant was the smaller one. Winters, Orr and the appellant were over six feet tall. Young was 5 feet 8 inches tall. Gorman adhered to his identification.
Jonathan Cocozza
[19] Jonathan Cocozza was the deceased's cousin. He heard the deceased speaking on the phone to Rooney on the way to the locus. After that the deceased said that there might be a fight when they arrived.
[20] When the deceased knocked on the door, four men came out. One lunged at the deceased's chest. At that point Cocozza left the car and followed Gorman. He started fighting with someone in the garden. They ended up in the hedge. Then Gorman came towards him. A different man then came from the front door and struck Cocozza's arm with a knife. This was the assailant who had struck the deceased. The assailant had "a kind of piggy nose and very wide nostrils". The assailant took off his top after the blow to the deceased.
[21] Cocozza identified the appellant in court as the assailant. He had failed to identify him at an identification parade. He said that he could identify him in court because the assailant was not among about 14 people, as he would be at an identification parade.
[22] In cross-examination, Cocozza admitted that he had told the police that he could definitely identify the two men who fought with him in the garden. At the identification parade he had identified a stand-in as the assailant because of his pig nose. He was "pretty sure" that the other man was Young because Young was crying and was therefore likely to have been involved. Counsel put to Cocozza that he would accordingly have no qualms about identifying someone in the dock on a similar basis, even if he could not truly identify them. He suggested that this was what Cocozza had done at the parade. Cocozza agreed, but said that in court he could get a good look at the accused without another ten people sitting around them. Counsel again suggested that as Cocozza purported to identity an accused just because he was crying, he might do the same because that person was in the dock. Cocozza denied this.
[23] Finally, Cocozza made this concession:
"Counsel: ... the simple fact of the matter is that you could not identify at the identification parade, [the appellant], even as a possible, maybe being involved, you couldn't even get him as a 'maybe', and if he had been the person who was right up beside you that you said you could definitely identify, you'd have picked him out in an identification parade. -
Witness: You'd think so.".
Rachael Condie
[24] Condie told the police that the appellant might have said something like "I'd do him", "I would batter him" or "I would kill him". She was in the front garden when the fighting took place. Later, when she was some way down the road the appellant and Orr came running back towards her. The appellant had a knife. His mouth was cut. He told her: "I only hit him twice in the head with the knife" and "He burst ma lip".
[25] They returned to the house together. The appellant handed a serrated knife to her. She returned the knife to the knife block in the kitchen, which was otherwise empty. It held five knives. Crown label 2 was the knife block and the serrated knife. Condie was given a blood stained t-shirt which she understood was Young's. She was also given the appellant's blood stained t-shirt. The police arrived. The appellant said that the incident was caused by gypsies.
[26] In cross-examination Condie accepted that, when the deceased arrived, trouble was no longer expected. She agreed that the atmosphere had mellowed.
The appellant's extra-judicial statements
At the locus
[27] The police took all of those who were still in the house to police stations to be interviewed as witnesses. As the appellant, Young and Winters walked towards the police vehicle, a fight broke out between Young and Winters. The appellant became agitated, gestured towards them and said to the police: "It's fuck all to do with they two."
At the police station
[28] When interviewed at the...
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