OPINION OF THE COURT
http://www.scotcourts.gov.uk/opinions/2006hcjac30.html
OPINION OF THE COURT
Delivered by THE LORD JUSTICE CLERK in
THE REFERRALS by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION
in the cases of
STEVEN ALEXANDER ROBERT JOHNSTON
First appellant;
and
BILLY ALLISON
Second appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
For the first appellant: Kerrigan QC, Gilbride;
For the second appellant; Burns QC, Shead;
For the Crown: Murphy QC AD, Miss Reville; Crown Agent
17 March 2006
I Introduction
[1] The appellants were tried at Edinburgh High Court in March 1996 on the following charge:
"Between 3 and 9 November 1995, both dates inclusive, at 38 Milton
Green, Dunfermline you Billy Allison and Steven Alexander Robert Johnston did assault Andrew Forsyth, residing there, punch and kick him repeatedly on the head and body, strike him repeatedly on the head and body with pieces of wood or similar objects, stab him on the body with a pair of scissors, compress his throat with your hands and did murder him."
In the course of the trial, and before defence evidence was led, the advocate depute amended the charge by deleting "between 3 and 9 November 1995, both dates inclusive" and substituting "on the 3 November 1995" and by deleting the words "stab him on the body with a pair of scissors." The amendment to the date libelled was critical. On 19 March 1996 both appellants were convicted by a majority verdict.
[2] The police enquiry in this case was carried out by officers of Fife Constabulary. Within about three days after the finding of Andrew Forsyth's body, D Insp Richard Munro became the senior investigating officer in charge of the enquiry. He and DS John Nessel were the reporting officers. In 2004 Mr Munro, by then D Supt, resigned from the force in advance of disciplinary proceedings unconnected with this case. It appears that DS Nessel is no longer serving with Fife Constabulary. His present whereabouts were not established at the hearing of evidence before us. The enquiry was directed from an incident room of which the officer in charge was D Insp Derek McEwan. He too has resigned from the force and now lives in Spain.
[3] The Scottish Criminal Cases Review Commission (the Commission) has referred the cases of both appellants. It considers that, by reason of the suppression of certain evidence by the police before the trial and in the light of new evidence obtained since then, there may have been a miscarriage of justice (cf Criminal Procedure (Scotland) Act 1995 (the 1995 Act), s 194C). The appellants have taken the opportunity to appeal in these proceedings (ibid, s 194B(1); Campbell v HM Adv, 2004 SCCR 220, at para [49]) on similar grounds.
II The background
[4] The deceased lived near Pittencrieff Park, Dunfermline, known locally as the Glen. He and the appellants were among a number of alcoholics who frequented the Glen and who used the deceased's flat as a drinking den. The deceased was well known and well liked in the neighbourhood. He had a gentle nature and was not a troublemaker. He had been the victim of violence on numerous occasions. He was easily recognisable by his red hair and his characteristic gait. The deceased was to have been a Crown witness in an impending trial of the appellant Allison and an associate, Colin Morrison, and had suffered violence and threats of violence on that account. At 10.20 pm on Thursday 9 November 1995 his mother found his body in his flat at the locus libelled. In the early hours of Friday 10 November, Professor Derrick Pounder of the Department of Forensic Medicine of the University of Dundee visited the scene.
III The trial
[5] The Crown case was that the appellants murdered the deceased on Friday 3 November. It is common ground that several witnesses saw the deceased alive in the course of that day. The defence case was that the appellants assaulted the deceased that day in a fight in which he suffered only a nose bleed and that he was alive and well as late as 7 November, and perhaps even in the early evening of 9 November.
The eye-witness evidence
Witnesses for the Crown
[6] There was no eye witness to the murder; but several witnesses implicated the appellants directly. Thomas McMullan said that he met the appellants in the evening of Friday 3 November. Both had blood on the legs of their jeans below the knees. Allison had blood on his white trainers. The witness went with Johnston to a public house where Johnston told him that he and Allison had given the deceased a "tanking" at his house. On Monday 6 November, Johnston told him that the deceased was dead. He said that he and Allison had given the deceased a "hammering" because he was a "grass." They had "gone over the score a bit" and had hit him with bits of furniture and an iron. They had returned to the house on Saturday 4 November for Allison's glasses but found only the frames.
[7] James Allan said that on Saturday 4 November while in the company of Allison, in a room occupied by George McCrorie, he had seen clothing which he recognised as Allison's. It included bloodstained denims with what seemed to be a lot of blood in the thigh area. Allison asked McCrorie to get rid of the clothing. Allison told this witness that he did not know with whom he had been fighting. Later that day, Allison asked the witness Gordon Shepherd (infra) to get his glasses from the deceased's flat. When Shepherd came back he said that he had seen the deceased lying in his flat and thought that he was dead. Allison did not react to this. Later, Johnston told this witness that he had been in a bit of bother the night before, that is to say 3 November, and said "I hope he's dead. I'll do 15 years for him." On Sunday 5 November the appellants came to his room. Outwith Johnston's presence, Allison said "We went back down there last night. Body was stiff as a board." Allan then gave Allison a spare pair of glasses.
[8] Samuel Edgar, a barman, said that on Friday 3 November Johnston had tried to set himself up as having been in his pub that day at 5 pm. Later that evening, when he was giving Johnston and Allison a lift, Johnston said "He'll not be there tomorrow" or "He'll no' survive until tomorrow" or words to that effect.
[9] Gordon Shepherd said that on Saturday 4 November Allison asked him to go to the deceased's flat and get his glasses back. When he looked through the window, he saw someone lying asleep on the floor and, from his red hair, he assumed that it was the deceased. He thought that he was asleep through drink or drugs. Later he thought that he might be dead. This witness conceded that at the time of these events he was in the middle of a "bender" and that he could not recall the precise day on which these events occurred.
[10] Richard Anderson said that on Saturday 4 November Johnston said "He was just a grass anyway" or words to that effect.
[11] James McDade said that on Saturday 4 November Johnston told him that he had been in a bad fight on the Friday night. At about 2.30-3.00 pm that day, this witness accompanied Shepherd to the deceased's flat and through the livingroom window saw a man lying on his back with his shirt up over the right side of his stomach. The witness could see no breathing movements.
[12] George McCrorie said that on the morning of Saturday 4 November Allison gave him a pair of jeans, a shirt and a jacket. Allison asked him to get rid of them. He noticed one or two spots of blood on one leg of the jeans. Allison's right hand was bruised around the knuckles. He was not wearing his glasses. This witness disposed of the clothes at a tip.
[13] PC John Mathieson's evidence supported the defence case. He said that on Tuesday 7 November, at about 6.35 pm, he went to the deceased's flat to deal with a report of a break-in. He shone his torch through the window. The room was illuminated by the torch and by light from the kitchen window. He did not see a body. The furniture in the room was not in the positions shown in the scene of crime photographs taken on 9 November.
Witnesses for the defence
[14] Allison said that he had had a fight with the deceased in his flat on Friday 3 November in which he burst the deceased's nose and caused it to bleed. The fight had lasted for two minutes at most. He had punched him three or four times on the face before Johnston broke up the fight. When Allison left the flat, the deceased was standing up and shouting at him. Allison admitted that he asked McCrorie to get rid of his clothes and that he lied to the police. He said that he did this because he was on bail at the time. He did not recall having met Thomas McMullan on 3 November. He claimed that he had drink-related blackouts. He had been unable to recall many details of what happened at the locus until Johnston refreshed his memory on the following day. He could remember the fight, but could not remember what it was about. He had seen someone at a distance on Monday 6 November near the library whom he thought was the deceased. He denied that he said that he had given the deceased a "tanking." He had said that he gave him a "leathering."
[15] Johnston said on 3 November there had been a minor fight in the deceased's flat between Allison and the deceased in which the deceased suffered a nose bleed. Johnston said that he broke up the fight. When he and Allison left, the deceased was on his feet and was shouting. He was alive and well, apart from the bloody nose. Johnston denied that he made the incriminating remarks attributed to him by the Crown witnesses.
[16] Eileen Thow said that she spoke briefly with the deceased at the Rendezvous Bar on the evening of Sunday 5 November.
[17] Mary Brockie said that in the morning of Monday 6 November she saw the deceased coming out of his flat in the company of a girl. She walked behind them into town.
[18] Janet Thow, Eileen Thow's mother, said that she was more than 50% sure that in the afternoon of Monday 6 November she saw the deceased from the window of her flat.
[19] James Drummond said that some time after 2 pm on Tuesday 7 November he and his wife saw the deceased in the Glen. His wife, Margaret Drummond, corroborated his evidence.
[20] Alan Henderson said that he saw the deceased walking in Nethertown Broad Street on the evening of either Tuesday 7 or Thursday 9 November. He was certain that this sighting had not taken place in the previous week.
Scientific evidence
[21] In Allison's case, the eye-witness evidence was supplemented by real evidence. His clothing was recovered from the tip. Blood found on the shirt and jacket did not belong to either of the appellants. It was highly probable that it was the blood of the deceased. The lenses of Allison's glasses were found in the deceased's flat. Footprints were found on a paper in the livingroom. They corresponded with Allison's trainers in terms of size, pattern and chance damage.
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http://www.scotcourts.gov.uk/opinions/2006hcjac30.html
