APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Kirkwood
Lady Cosgrove
Appeal No: XC489/03
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
in
NOTE OF APPEAL AGAINST CONVICTION
by
FRANCIS MARTIN THOMAS O'DONNELL
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
Appellant: Burns QC, McCluskey; Balfour & Manson
Respondent: Anthony QC, AD; Crown Agent
18 February 2004
Introduction
[1] The appellant was tried at Glasgow High Court along with Patrick Francis Devine and Mary Ryan on three charges, of murder, theft and an attempt to defeat the ends of justice. The charges related to the murder on 19/20 November 1998 of Manus O'Donnell, the appropriation of a hired motor car used in the murder for the purpose of destroying it, and the burning of the car to destroy evidence of the murder. On 3 September 1999 Ryan was convicted of all three charges, Devine was convicted of the attempt to defeat the ends of justice and the appellant was convicted of murder.
[2] The appellant had lodged a special defence of alibi to the effect that he was in Dublin at the time of the murder. The Crown did not charge conspiracy in this case, and counsel for the appellant did not submit that the appellant could not be convicted of murder art and part if, having taken part in the planning of the murder in Scotland, he was in Ireland when it was carried out.
The background to the murder
[3] The deceased and Ryan were associated in a number of construction businesses operating at the margins of the law. They met regularly. Ryan had accompanied the deceased on a holiday to Spain in October 1998, when there had been talk of his taking part in the trade in illicit drugs. She had also accompanied him on a visit to Ireland. The deceased trusted her. By all accounts he was a private and careful man who avoided direct contact with many of the businesses in which he had an interest.
[4] Until the summer of 1998 the appellant worked as a ganger on roadworks, latterly with Ashbourne Communications, a business with premises near Stirling. There was no evidence that the deceased was directly involved in Ashbourne Communications, but he was in the background of the business in some way. In about June 1998 the deceased gave the appellant a suit and a car and employed him as his driver. He also gave him work with one of the businesses that apparently fronted for the deceased. The appellant and the deceased were in frequent contact.
[5] From 1998 onwards the appellant and Ryan ran an escort agency called "Pretty Woman." The appellant put the idea of the agency to his friend William McKinnon and introduced him to Ryan. The appellant told McKinnon that there was a man behind the business, to whom the appellant referred as "the man" and to whom McKinnon referred as "Mr Big." This was the deceased. After that, McKinnon was a front for the Pretty Woman business.
[6] Soon after the murder, McKinnon gave a statement to the police that incriminated the appellant. A few months later, he retracted the statement. In particular, he retracted an allegation that the appellant had confessed to the murder in December 1998, when he and the appellant were in Blackpool. We shall refer to the alleged confession later. At first McKinnon too was accused on these charges; but after the charges against him were dropped, he became a Crown witness. McKinnon was an important witness against the appellant. There were obvious questions as to his credibility.
The events before the murder
[7] In the week beginning Monday 16 November numerous telephone calls were made between Ryan, Devine, the appellant and other associates including McKinnon and Paul McGeogh.
[8] On Thursday 19 November 1998 there were 28 calls between Ryan and McGeogh. McGeogh telephoned Ryan at 4.15 pm. At about 4.30-4.45 pm, Ryan had a meeting with the deceased at an office at Meadowpark Street, Glasgow. For privacy, they left the office and continued their discussions in the deceased's car, which was parked outside. They arranged to meet again at 9 pm that evening at the Tinto Firs Hotel, Glasgow. At 4.45 pm, immediately after that meeting, there were telephone calls to the appellant's mobile and to Devine's mobile.
[9] At 5.30 pm Ryan, accompanied by McGeogh, hired a Renault Megane for a period of 24 hours. Between then and 8 pm there was heavy telephone traffic. McGeogh telephoned Ryan at 8.40 pm. She telephoned the appellant at 8.46 pm. McGeogh telephoned Ryan at 8.51 pm. Devine telephoned Ryan at 8.52 pm.
[10] At about 9 pm Ryan met the deceased at the Tinto Firs Hotel. They left a few minutes later. On the pretext that she needed fuel, Ryan persuaded the deceased that they should leave in the Megane.
[11] Between then and 2.25 am on the following morning, the deceased was killed.
The murder
[12] The deceased was shot once in the chest from close range. The shotgun pellets entered at the middle of the chest, tracking to the right across the body. He was then shot in the back of the head, again at close range. This shot destroyed his brain and inflicted gross damage to the bone structure of the face and skull. He died instantly at that point. Two different types of cartridge were used in the murder. Thereafter the deceased was stabbed in the back, the neck and the head 22 times with considerable force, some of the blows penetrating the bone. Then his throat was cut. The body was dumped in woods near Thorntonhall wrapped in a tarpaulin supplied by Devine.
[13] At 2.25 am the Megane was found burning in a car park. Petrol had been used to accelerate the fire.
The evidence against the appellant
(i) The telephone calls on and after Monday 16 November
[14] The analysis of the billing records for these calls was capable of supporting the inference that the individuals concerned were engaged in planning the murder. It was clear that the appellant had taken part in the flurry of calls that were made during Thursday 19 November up till 9 pm when Ryan met the deceased at the Tinto Firs Hotel. The analysis of the records of these phone calls was capable of supporting the inference that those concerned were making the arrangements to lure the deceased to his death.
2. Communications with McKinnon
The 20 November conversation
[15] McKinnnon said that he was in contact with the appellant in the week of the murder and that the appellant told him at some point that he was going "across the water." On Friday 20 November McKinnon spoke to the appellant on the telephone, believing that the appellant was in Ireland at the time. McKinnon mentioned that Ryan had been asking after the deceased. The appellant replied "Don't worry about him, he'll no' be back." At that stage the body of the deceased had not yet been found.
Read the Appeal : http://www.scotcourts.gov.uk/opinions/XC489.html
