APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Eassie Lady Paton Lord Cullen	[2006] HCJAC 7 Appeal No: XC125/04 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by WILLIAM LEWIS GAGE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Scott, Q.C.; Beltrami Anwar, Glasgow

Respondent: Beckett, A.D.; Crown Agent

14 March 2006

Introduction

[1] The appellant was born on 1 March 1971. In 2002 he lived with his partner Margaret Welsh at an address in [B] Road, Glasgow.

[2] At that time Justin McAlroy (then aged 30) lived with his wife Tracy at 29 Acacia Way, Cambuslang. He was "involved in serious criminal activities in the period leading up to his death. For many months he had been under surveillance by the Scottish Drug Enforcement Agency, although active surveillance was temporarily in abeyance. He was known to have had contacts with men ... contesting extradition proceedings relative to alleged drugs offences in Estonia. He appeared to owe £50,000 to an un-named third party in connection with a drugs deal of some kind, and he had received sinister warnings from an intermediary that his time for repaying that money was running out. On the day of his death, [Mr. McAlroy] and a friend visited serious criminals in Perth Prison using assumed names. The precise purpose of that visit was not satisfactorily established..." (trial judge's report, page 2).

[3] At about 10 p.m. on 7 March 2002, Mr. McAlroy was returning home. As he approached 29 Acacia Way, he was shot several times. The shots were heard by his wife and by neighbours. They looked out and saw a man running away. He was dressed in dark clothing. His face was partly covered. In a nearby street called Newton Station Road, witnesses saw a man in dark clothing get into the front passenger seat of a white car. The white car drove off and was last seen heading in a direction which could lead to Easterhouse. Later that evening at about 10.30 p.m. (a time further explained in paragraph [41] below), a white Saab car registration number F36 WCS was found abandoned on an embankment at Balcurvie Road, Easterhouse. An attempt had been made to set the car alight, but the fire had gone out. At 10.32 p.m. a telephone call was made from a mobile phone number 07958173538 when the caller was in the vicinity of the cell-site on Easterhouse Road, close to junctions 8 and 9 on the M8 motorway.

[4] Mr. McAlroy died in the early hours of 8 March 2002. A murder inquiry began. "The general consensus of opinion among senior police officers who gave evidence at the trial was that this killing had the hallmarks of an execution ordered by someone in the criminal underworld, and that the killer himself was unlikely to have been known to the deceased" (trial judge's report, page 3).

[5] When the abandoned white Saab car was examined, it was found to contain a pair of gloves; a black nylon jacket with a hood; a pair of dark waterproof trousers; a dark grey woollen scarf or snood; a Yazoo brand drinks bottle; and a radio scanner, switched on and operating at the police wavelength so that police transmissions could be heard. The appellant's DNA was found on the Yazoo bottle and on the jacket. No other person's DNA was found on either of those items (with the exception of some DNA contamination on the jacket from a forensic scientist involved in the testing procedure). The appellant's DNA was also found on the gloves and the snood, with traces of the DNA of at least two other individuals. Firearms discharge residue was found on the jacket and the snood. The residue was of the same type (although a common type) as that found at the locus.

[6] The appellant was interviewed by the police. The trial judge's summary of the interview can be found in paragraph [31] below. The appellant was ultimately charged with murder and with an attempt to pervert the course of justice by setting fire to the getaway car and its contents.

The trial

[7] The appellant's trial took place in early 2004 at Glasgow High Court before Lord Emslie and a jury. The charges against the appellant were as follows:

"(1) On 7 March 2002 at Acacia Way, Westburn, Cambuslang, Glasgow, you did while acting along with another or others meantime to the prosecutor unknown, assault Justin John McAlroy, born 18 February 1972, late of 29 Acacia Way, Westburn, Cambuslang, Glasgow and repeatedly discharge a firearm at him and shoot him on the head and body whereby he was so severely injured that he died on 8 March 2002 at Victoria Infirmary, Glasgow and you did murder him.

(2) On 7 March 2002 on a piece of ground adjacent to Balcurvie Road, Easterhouse, Glasgow, having committed the offence libelled in charge (1) above and having been driven from Newton Station Road, Cambuslang, Glasgow to Balcurvie Road in motor car registered number F36 WCS, you did while acting along with another meantime to the prosecutor unknown, pour petrol over the interior of said car and set it alight and this you did with intent to damage or destroy said car and thereby to hinder or prevent forensic examination by or on behalf of the police and criminal authorities of said car and of items within, including a jacket, a pair of gloves and a snood which you had been wearing at the time of the commission of the offence libelled in charge (1) above and with intent to avoid detection and charge for said offence and you did attempt to pervert the course of justice."

[8] The appellant had lodged a Special Defence of Alibi in the following terms:

"Lovie for the panel states that the panel pleads not guilty, and specially, and without prejudice to the said plea, that on 7 March 2002, from 8 p.m. till 11.30 p.m. or thereby, between which times the crimes alleged in the indictment, if committed, were committed, he was at [a given address in Hyndland, Glasgow] and travelled from there by car to Anniesland, Clydebank and Temple and, thereafter, to the Hogshead Public House, Woodlands Road, Glasgow from where he returned to [the address in Hyndland] aforesaid at 11.30 p.m. or thereby; throughout said period he was constantly in company with Ann Ross, Crown Witness 107; and the said Ann Ross will be called to give evidence on behalf of the panel."

[9] The Crown duly led evidence. The defence led several witnesses, including Crown witness number 107, Ann Ross (aged 47). Miss Ross gave alibi evidence on behalf of the appellant, referring in the course of her evidence to her personal diary. The appellant did not give evidence. The jury then heard speeches and, on 9 February 2004, a charge.

[10] After retiring, the jury made certain requests. The transcript of the proceedings discloses that they asked to see (i) the telephone records of incoming calls to Ann Ross on 7 March 2002, and (ii) a copy of Ann Ross's diary entry for 7 March 2002. The trial judge heard submissions outwith the presence of the jury. The jury then returned to court. In relation to the first request, the judge explained that no documentary production relating to incoming calls to Ann Ross had been put to any witness in evidence. The first request was therefore refused. In relation to the second request, the judge explained that it was not appropriate that the jury should be allowed to see that production (or any part of that production) in isolation, there being a risk that they might consciously or unconsciously draw inferences, conclusions, or deductions of their own that Ann Ross was never asked about when she was in the witness box, and which the appellant would never have had any opportunity to meet. Accordingly the second request was also refused.

[11] After retiring and deliberating further, the jury returned majority verdicts of guilty in respect of Charge 1, and not proven in respect of Charge 2.

Appeal against conviction

[12] In June 2004, the appellant lodged three grounds of appeal against conviction. The first ground was ultimately not insisted upon. Nevertheless it is worth noting its terms, and the trial judge's response thereto. The first ground is as follows:

"1. No reasonable jury having been properly directed and charged would have returned verdicts, as the jury did, of guilty on charge 1 on the indictment and not proven on charge 2. Said verdicts were inconsistent with each other and with the evidence for the following reasons:

(a) in order for the appellant to have been convicted on charge 1 it

was necessary for the Crown to prove that the motor vehicle referred to in charge 2 was the getaway car used in the killing in charge 1, and also, that clothing found in said vehicle at the locus in charge 2, comprising of a jacket and a snood, were worn by the killer (transcript of trial judge's charge, page 39, line 9 to page 41 line 16);

(b) the jury's verdict of not proven on charge 2 indicates that the

evidential requirements for proving that the vehicle was the getaway car and/or the appellant was in any way connected with it or the clothing at the time of the killing were not established and therefore the verdict in relation to charge 1 on the indictment ought to have been one of acquittal in accordance with the directions of the trial judge (transcript page 41 line 17 to page 42, line 2)."

[13] The trial judge, at page 12 of his report, responded to the first ground of appeal inter alia as follows:

" ... it is not clear to me that the jury's verdicts on Charges 1 and 2 were inconsistent as alleged. Charge 2 required proof of fire-raising, with the use of an accelerant, and a Not Proven verdict on that charge was surely open to the jury if they were not prepared to draw the inference, beyond reasonable doubt, that the appellant was involved in committing the various acts libelled. After all, approximately one hour [but see paragraph [41] below] had elapsed between the murder and the abandonment of the vehicle, and on the evidence of Stephen Madden and Agnes Edgar the appellant was not the only occupant of the getaway car ..."

[14] In our view, it was appropriate that the first ground of appeal was not insisted upon. As the trial judge pointed out in his report, "on the evidence ... the appellant was not the only occupant of the getaway car". That evidence entitled a jury to have a reasonable doubt whether the appellant was involved in the acts libelled in Charge 2.

[15] The second and third grounds of appeal are as follows:

"2. That the jury's deliberations and verdicts were manifestly flawed on account of: -

(a) their request to have sight of documents which were never

produced in evidence nor spoken to by any witness (transcript page 62, lines 8 to 10) thus indicating a complete failure to comprehend the significance of evidence adduced by the Crown in relation to calls allegedly made from a mobile telephone by the appellant and in respect of which the Crown sought to establish the involvement of the appellant in connection with both charges on the indictment;

(b) their request to view the entry, or photocopy thereof, in the

diary which formed Defence Production 13 and about which Crown witness 107, Ann Ross, had already given evidence (transcript page 62, lines 10 to 13), there having been no challenge by the Crown as to the existence of said entry, the only issue for the jury to decide upon being whether or not the evidence of the witness in support of the special defence of alibi was acceptable or not in accordance with the directions of the trial judge (transcript page 49, line 24 to page 51, line 15).

3. Notwithstanding the decision of the trial judge to refuse the requests of the jury referred to in 2 above and his stated reasons for so doing (transcript page 62, line 14 to page 64, line 12), the requests made disclosed an intention on the part of the jury to go beyond the evidence adduced in the course of the trial and conduct their own investigations into the circumstances of the case, contrary to the directions of the trial judge, (transcript page 8, line 24, to page 9, line 12)."

[16] On 27 July 2005, a fourth ground of appeal was lodged, as follows:

"4. In terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 no reasonable jury having been properly directed and charged could have been satisfied beyond a reasonable doubt that the appellant murdered the deceased in view of:

(i) the very unsatisfactory quality of the identification evidence led by the Crown;

(ii) the contradictions and inconsistencies in the identification evidence."

[17] The appeal was heard on Friday 21 October 2005. Transcripts of the evidence of the following witnesses were provided and referred to: Tracy McAlroy (aged 28); Phyllis Craig (aged 43); Julie Waugh (aged 30); Stephen Madden (aged 40); Agnes Edgar (aged 17); Charles Bowman (aged 27); and Ann Ross (aged 47). Transcripts of the jury speeches and the judge's charge were also provided. Copies of the following productions were provided and referred to: photographs of Acacia Way, production number 5; photograph A in production number 8, being a photograph of a police mannequin wearing the clothing discovered in the abandoned car; a DNA report production number 25; and a firearms discharge residue (FDR) report production number 27.

[18] Mr. Keegan, solicitor-advocate for the appellant, indicated that the first ground of appeal was not insisted upon. Further, while the second and third grounds were set out as separate headings in the Note of Appeal, there was really only one ground of appeal, namely the fourth ground, based upon section 106(3)(b). Initially Mr. Keegan referred to the jury's requests for Ann Ross's telephone records and diary entry as indicative of the jury embarking on a frolic of their own and departing from the directions set out for them in the judge's charge, thus illustrative of what a reasonable jury would not have done. Ultimately, however, Mr. Keegan confirmed that the appeal was based solely upon section 106(3)(b), which focused on what verdict a reasonable jury, properly directed, could have returned (King v. Her Majesty's Advocate, 1999 J.C. 226, at pages 228G to 229A, and 229I to 230B). He confirmed that the appeal was not based upon the unreasonable behaviour of the particular jury involved in the trial, and also that he could not use the jury's requests to fortify the appellant's case based on section 106(3)(b). He agreed that the court had to assess the question raised by section 106(3)(b) objectively, examining whether, on the basis of the evidence led, the verdict was open to a reasonable jury. He submitted that the fourth ground of appeal could stand alone even if the other grounds proved to be irrelevant.

Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995

[19] Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, as amended by section 17 of the Crime and Punishment (Scotland) Act 1997, provides:

" ... a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on - ... (b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned."

[20] The ambit of section 106(3)(b) has been discussed in several decisions. In King v. H.M. Advocate, 1999 J.C. 226, at pages 228G to 229A, the court observed:

"In seeking to formulate the appropriate test we begin with the words of section 106(3)(b). If we ask in what circumstances there may be the kind of miscarriage of justice which the provision covers, then it is obvious first of all that the jury will have returned a verdict convicting the appellant, since section 106 as a whole deals with appeals by persons who have pled guilty or been convicted by a jury. So the verdict to which section 106(3)(b) refers is a guilty verdict. The miscarriage of justice therefore arises where the jury return a guilty verdict which no reasonable jury properly directed could have returned. The test is objective: the court must be able to say that no reasonable jury could have returned a guilty verdict on the evidence before them. Since in any case where the provision is invoked the jury will ex hypothesi have returned a guilty verdict, their verdict will have implied that they were satisfied beyond reasonable doubt that the appellant was guilty. What the appellant must establish therefore is that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty ... "

The court went on to state (at pages 229I to 230B):

"It follows from what we have said about the approach which this court should adopt that, although we require to examine the evidence which was before the jury, it is not for us simply to substitute our view of that evidence for the view which the jury took. In particular, a miscarriage of justice is not identified simply because, in any given case, the members of this court might have entertained a reasonable doubt on the evidence. If that were all that was required, Parliament would have gone far towards replacing trial by jury with trial by the judges of this court. The words in the provision were clearly chosen to avoid any risk of that. Applying the words which Parliament has enacted, we can quash the verdict of a jury only if we are satisfied that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant was guilty."

[21] In Kerr v. H.M. Advocate, 2004 S.C.C.R. 319, the court confirmed that issues of credibility and reliability are pre-eminently for a jury to resolve.

[22] In Harper v. H.M. Advocate, [2005 HCJAC23] 2005 S.C.C.R. 245, the court again emphasised the limited nature of the court's powers in terms of section 106(3)(b). The court, having referred to the approach in King, cit. sup., observed at paragraph [35]:

"Following that approach, the question has to be asked whether the verdict in this case, on the evidence before the jury, could have had a rational basis. In that connection it is to be noted that, in a case where there is a body of evidence which was quite inconsistent with the accused's guilt, for example that supporting an alibi, a jury could reasonably reject such evidence precisely because it was inconsistent with Crown evidence which they had decided to accept. No more elaborate explanation for rejection need be sought. In Smith v. H.M. Advocate, [2005HCJAC3] at paragraph 23, it was indicated that there might be cases in which the evidence against the Crown case might be so overwhelming in comparison with the evidence relied upon by the Crown that no reasonable jury could convict. In these circumstances it becomes necessary to assess the evidence in the present case with a view to identifying whether the jury had a rational basis for their rejection of [certain evidence] ... "

Further, the court stated at paragraph [38]:

"As is apparent from the statutory provisions to be found in section 106 of the 1995 Act, the function of this court is not to conduct a general review of jury decisions and, in the event of its being persuaded that they are mistaken, substituting its own view in place of the jury's verdict. The terms of section 106(3)(b) provide the sole criterion for the assessment of a jury verdict in the light of the evidence. If we were to decide on some general basis that the verdict in this case was unsatisfactory in the light of the evidence, and quash the conviction, we would be engaging in an activity which Parliament has not authorised ... "

[23] In the present case, as in King, Kerr and Harper, the appeal is based upon section 106(3)(b). Accordingly, applying the test set out in section 106(3)(b) against the background of the authorities noted above, we require to examine the evidence which was before the jury. We can quash the verdict of the jury only if we are satisfied that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty.

Crown evidence

[24] Both the Advocate depute and Mr. Keegan accepted that the Crown case against the appellant was a circumstantial one. Mr. Keegan expressly accepted that there was a sufficiency of evidence (and indeed no submission had been made to the trial judge that there was no case to answer). Mr. Keegan naturally accepted that issues of credibility and reliability, and decisions relating to what evidence to accept and what to reject, were matters for the jury. What follows is an outline of some of the evidence which the Crown placed before the jury, which was rehearsed to some extent during the appeal. In his submissions, the Advocate depute presented an outline of the evidence in two main chapters. We found that helpful, and adopt the same course.

1. The first chapter of evidence

Undisputed evidence

[25] At this stage, we adopt the Advocate depute's uncontested analysis of what he described as undisputed evidence available to the jury which, if they chose to accept it, supported nine factual propositions:

1. The deceased was a man with contacts and enemies in the criminal world.

2. At about 10 p.m. on 7 March 2002, he was shot and fatally injured in the street close to his home at 29 Acacia Way, Cambuslang. He died in the early hours of 8 March 2002.

3. The killer discharged six shots from a handgun. Five struck the deceased in the arm, leg, chest, and head.

4. The killer's facial features were partially obscured by a scarf, hood or some other garment. He was otherwise wearing dark clothing, which included a jacket.

5. The killer left Acacia Way on foot, and ran along a pathway to Newton Station Road where he entered the passenger seat of a waiting white getaway car in which there was already a driver. The car drove off in the direction of the M73/M74 motorway, which could lead to Easterhouse.

6. At 10.49 p.m. a white Saab motor vehicle was reported to the police as having been abandoned and set alight on the embankment at Balcurvie Road, Easterhouse. The car had been noticed (as abandoned and apparently set on fire) at least ten minutes before the telephone call to the police.

7. Various items abandoned in the motor vehicle included gloves (labels 9 and 10) found in the front passenger footwell; a black nylon cagoule or jacket with a hood (label 3), found on the rear seat behind the driver's seat; a pair of dark waterproof trousers (label 4) found on the same seat; a dark grey woollen scarf or snood (label 5) found on the rear seat behind the driver's seat; a Yazoo brand drinks bottle (label 8) in the rear footwell; a radio scanner (label 37) found on the rear seat: the scanner was switched on, operating, and tuned to the police wavelength, thus enabling police communications to be listened to.

8. At 10.32 p.m. on 7 March 2002, a telephone call was made from mobile phone number 07958173538. At the time of the call, the caller was in the vicinity of the cell-site on Easterhouse Road, close to junctions 8 and 9 on the M8 motorway.

9. Between December 2001 and 7 March 2002, there were no other reports made to the police about incidents concerning the discharge of a firearm which had any association with a white car.

[26] When assessing the undisputed evidence, certain other evidence was available to the jury, if they chose to accept it and take it into account. That evidence was as follows:

The forensic science report relating to DNA evidence (production number 25)

[27] The report disclosed that the DNA profile from the swab taken from the neck of the Yazoo drinks bottle matched the appellant's DNA profile to a probability in the order of one in a billion males (pages 5, 6, and 18 of the report). The DNA profiles from tapings taken from the gloves and the snood matched the appellant's DNA profile to a probability in the order of one in a billion males, subject to additional traces of DNA from at least two unknown individuals (pages 6 and 18 of the report). A taping from the hood and inner cuffs of the jacket revealed a DNA profile consistent with a mixture of the DNA of the appellant and the DNA of a female forensic scientist involved in the testing procedure (pages 6, 7 and 19 of the report). When the profile of the scientist was subtracted, the remaining DNA profile matched the appellant's DNA profile, to a probability in the order of one in a billion males.

[28] In this context, the Advocate depute drew attention to an error in the trial judge's report at page 7, where it was noted that "The DNA of two other individuals was also found on the jacket and gloves." In fact the only relevant DNA identified on the jacket was that of the appellant.

The report relating to firearms discharge residue (FDR )(production number 27)

[29] Report production number 27 recorded that percussive primer firearm discharge residues were recovered from the jacket on which the appellant's DNA had been identified, and the snood on which the appellant's DNA (and traces of the DNA of two other individuals) had been identified (page 5 of the report). Those findings indicated that "(i) these items of clothing [had] had a close association with a gun when discharged, and/or (ii) these items of clothing had been in contact with a source of percussion primer firearm discharge residue, e.g. a gun that had been discharged or a spent cartridge case" (page 6 of the report). The FDR found on the clothing was the same type (although a common type) as that found at the locus.

The telephone evidence

[30] Evidence was led that a telephone call from the mobile phone number 07958173538 was made at 10.32 p.m. when the caller was in the vicinity of the cell-site on Easterhouse Road, close to junctions 8 and 9 on the M8 motorway. It was agreed by Joint Minute that the mobile telephone number was registered to a lady called Ann Finnegan, a near neighbour of the appellant's mother in Easterhouse, who had never in fact owned or used such a phone (trial judge's report page 9). When the phone was examined, it was found that "(a) some 26 out of the 40 numbers called over the period [between 1 February and 8 March 2002] matched numbers noted in filofaxes seized by the police on a search of the house in [B] Road, where [the appellant] lived; and (b) 3 more belonged to individuals well-known to [the appellant]" (trial judge's report page 9). The trial Advocate depute's speech to the jury (transcript page 29) reveals that there was also evidence that "both before and after the call at 10.32, calls were being made to numbers which were in [the appellant's] diary and indeed that a call was made an hour afterwards to Margaret Welsh, his partner." Nevertheless, as the trial judge pointed out at page 11 of his report, "there was no direct evidence that the appellant was the normal user of the mobile phone from which a call was made at 10.32 p.m. on the night in question, nor was there any direct evidence to show whether he, or someone else, had possession of the phone at the material time."

The appellant's interview with the police

[31] The trial judge summarises the appellant's interview with the police at page 10 of his report as follows:

"In the course of the trial, the jury heard a tape-recording of a lengthy police interview of the appellant following his detention on 3 May 2002. Throughout that interview, the appellant was politely insistent that he would not answer any questions for fear that his family and friends would then be at risk of police pressure and harassment. As one of the interviewing police officers agreed in cross-examination, the appellant displayed a "degree of paranoia" on that matter. At various points, however, the appellant positively asserted that he did not know why he had been detained, that he had nothing to do with the death of Justin McAlroy, and that he had not been there when the latter was killed. As regards his whereabouts at the material time, he would only say that if it ever came to a trial he would tell the jury where he was and who he was with. In addition, the appellant positively affirmed inter alia that he had no address in [B] Road; that he owned no mobile phone; that he bought and sold low-value second-hand cars; that the Saab found at Easterhouse had nothing to do with him; that the gloves, snood, jacket, trousers and drinks bottle found in that vehicle were not his and had never been worn or handled by him; and that he had not fired any gun, or been present when a gun was fired by anyone else, since being in the Territorial Army some 13 years earlier. Against that background, the appellant expressed incredulity when advised that his DNA had been found on four of the items concerned, and firearm discharge residues on two of them."

2. The second chapter of evidence

[32] Further evidence was available to the jury, if they chose to accept it, as outlined below:

The evidence of Tracy McAlroy

[33] A transcript of the evidence of Tracy McAlroy was available at the appeal hearing. Passages in examination-in-chief were referred to, particularly pages 11 to 12, 14 to 16, 28 to 32, and 42 to 45. In essence, she spoke of hearing noises like a car backfiring, opening her front door and looking out, and seeing a man under the street lamp at the end of her driveway (shown in photographs production number 5), running away. He was wearing dark coloured clothing, which had a "sheen". He had a hood, and only part of his face, from the forehead to the nose, was visible. He was running with one hand in his pocket. He looked at her when the door opened. At one stage during her evidence-in-chief, she pointed to the appellant as having eyes resembling those of the man running away, adding that she was "not a hundred per cent sure". The eyes of the man running away were "scary eyes" which she would never forget. In May 2002, some weeks after having given statements to the police about the clothing the man was wearing, she had been taken into a room in a police station and shown a mannequin or tailor's dummy dressed in the clothing found in the abandoned white Saab (as shown in photograph A of production number 8). She recognised the clothing as the clothing worn by the man running away under the street light. The man was of medium build, slim, and medium to tall in height.

[34] In cross-examination at page 85 et seq., Mrs. McAlroy was referred to her police statements. It was put to her that her evidence in court differed in several respects from what she had told the police. She had told the police that she had looked through the glass of the front door. In response, Mrs. McAlroy maintained that she had opened the front door (pages 84 to 85, 91 to 92). At page 86, Mrs. McAlroy was asked about her identification of the clothing and the jacket, under reference to a police statement. She was asked about the description which she had previously given to the police of "a padded jacket ... with a large bulky hood like an anorak ... waist length, possibly longer, the hood was Eskimo-type". In a further police statement (quoted at page 94 of the transcript) she had spoken of a thick anorak type jacket, waist length, with a pearly sheen, an Eskimo snood hood, possibly clip or stud fastening at the neck, zip fronted. It was not suggested to her in cross-examination that her descriptions of the jacket were incompatible with jacket label 3, or that her view of the man had been hindered by reflected light on a glass panel. However it was put to her that she had not mentioned the man's eyes to the police.

[35] In re-examination, at page 103 et seq., Mrs. McAlroy confirmed, under reference to a police statement, that she had a clear view of the running man, and that he had passed directly under the street lamp and had been well lit.

The evidence of neighbours

[36] Several neighbours gave evidence at the trial. Transcripts of the evidence of two neighbours Phyllis Craig and Julie Waugh were available at the appeal hearing. Passages in Phyllis Craig's examination-in-chief were referred to, particularly pages 112 to 115, and 127 to 138. She described hearing bangs, and peeking out of the window. She saw a person in a dark jacket with a hood, but not the person's face. Her recollection in court was assisted by the description of the jacket which she had given to the police. In summary, she described the jacket as similar to a pullover jacket which her daughter wore. That sort of jacket went to the waist; it did not have a full zip; it had a hood which was loose (i.e. not drawn tight around the wearer's head); the hood formed part of the jacket, and was not detachable; the jacket was not too big or baggy; the jacket had a pocket right across the front of the stomach, and side-pockets; it was not a waterproof jacket, it was shiny, more of a wind-cheater. When shown jacket label 3, Mrs. Craig confirmed that in certain respects it resembled the jacket she had described. She also described seeing a dark-coloured material (possibly a scarf) inside the hood and around the person's mouth. In re-examination, at page 157, she confirmed that label 3 was a "similar type jacket" to that which the individual had been wearing in Acacia Way on 7 March 2002, although she had already pointed out in her evidence-in-chief (at page 137) that label 3 did not appear to have the side-pockets which her daughter's jacket had.

[37] The neighbour Julie Waugh had assisted a police artist to produce sketches of the individual. Reference was made to the transcript of her evidence, particularly pages 301 to 305, and 334. In evidence-in-chief she stated that she had looked out of her bedroom window. She saw a figure running by the house, onto the car park. She saw him for a matter of seconds, and was looking down on top of him. There was no street lighting in front of her house at the time, and visibility was not very good. She saw a dark sort of woollen tammy on his head, with a scarf or something coming across his mouth. She described his jacket as khaki-coloured, dark beige, almost green (page 305). In cross-examination at pages 310 to 311, she agreed that there was some form of security lighting at nearby show-houses, and two down-lights at the front of her house. At page 318 et seq. while looking at the police artist's sketches, she described the jacket as a beigey colour, with padded shoulders (with stitching) and a raised neck, with pockets and a zip at the front. At page 322 she stated that she was unsure of her identification of the clothing and that she would "have to see something and see if it sparks some sort of recognition". She was not shown jacket label 3. In re-examination at page 334 et seq. she confirmed that she had been looking down on the man, from the side. One drawing prepared by the police artist was coloured grey and beige: the grey colouring had been inserted at her instruction, because her impression had been of a darker jacket than that shown in some of the artist's sketches. She agreed that if the show-house lights and security lights had been on, those lights might have changed her perception of colour.

The evidence of witnesses in Newton Station Road

[38] Stephen Madden appeared to have been a very reluctant witness. Much of his evidence-in-chief consisted of his police statement being put to him for his comment. Reference was made to the transcript of his evidence, in particular passages at pages 192, 200, 202 to 220, 222, and 225 to 226. On 7 March 2002 at about 10 p.m. Mr. Madden had been driving down Newton Station Road, with a passenger Agnes Edgar. He saw a white car parked further down the road, on his left-hand side, facing towards the station. He remembered the first letter and first two numbers as J86 or J68, and thought that it was either a Metro or a Maestro. He could see a figure sitting in the driver's seat. He passed the white car, and when he was about a car-and-a-half past the white car, he saw a figure running down the gravel path onto the pavement. The gravel path led from the housing estate which contained Acacia Way. The man's face was covered by a dark or black ski mask. It had two eye-holes and a mouth-hole. The man was wearing a dark colour bubble anorak-type jacket (bubble meaning padded). The jacket was bluey dark navy black in colour, waist-length, with a zip up the front. Mr. Madden did not notice any pockets. The man had one arm folded towards his chest. The witness then described seeing, in his rear view mirror, the man with the ski mask in the front passenger seat of the white car. He could see another male in the driver's seat. Headlights from an oncoming car passed through the witness's car and the white car behind. The witness saw the front seat passenger in the white car pull off the ski mask. He described the passenger as having a kind of ball (round) face, maybe a bit of a chubby face and a rounded head, with a full head of hair which was dark black, maybe brown. His hair appeared to be short, but longer than a crew-cut, maybe about an inch of hair all round. The white car followed the witness's car, on a route which the witness would have taken to go to Easterhouse. The witness described the man with the ski mask as between 5 ft 8 and 5 ft 11, just above average build, about 12 to 13 stone in weight. Giving further detail about the jacket, the witness described it as a dark, maybe blue, maybe black, waist-length padded jacket, with a zip up the front. The witness could not see if the jacket had a collar. The man was about 25 to 30 years of age. Mr. Madden was shown jacket label 3. When asked if it bore any similarity to the jacket which he had seen the man wearing on the night of 7 March 2002, he replied in the negative, although he conceded that jacket label 3 was indeed dark and waist-length. When asked if he saw the man in court, he again replied in the negative, and did not identify the appellant. In cross-examination, at page 231 of the transcript, he stated that he was interested in cars, and thought that the car might have been like a Maestro, Metro type car. In re-examination at page 233, Mr. Madden confirmed that he had thought that the white car was a "J" registration, but he was not a hundred per cent sure.

[39] Agnes Edgar also appeared to have been a very reluctant witness. She adopted parts of her police statement dated 13 March 2002. Reference was made to the transcript of her evidence, in particular passages at pages 251 to 252, 258, 260, and 266. In essence, she described seeing a person running through the lane leading from the estate which contained Acacia Way down to Newton Station Road. He was running with his arms across his chest. He was wearing a puffy jacket (puffy meaning padded), which was waist-length and dark or black in colour. She thought it similar to a jacket she herself wore in the witness box (described in the judge's report at page 5 as a quilted jacket). Miss Edgar could not tell if the jacket was fastened at the front, or whether it was a pullover jacket. She denied telling the police that the jacket had a hood which was up over the man's head. She denied telling the police that a woollen tammy masked the man's face. When shown jacket label 3, Miss Edgar agreed that label 3 was dark, but reiterated that she had not mentioned a hood to the police. She estimated the man's height at about 6 feet. She had told the police that she would not be able to identify the man because he was covered up. The car was white, with a bonnet and a boot.

[40] Charles Bowman was the third witness who gave evidence about events in Newton Station Road. Reference was made to the transcript of his evidence, particularly passages at pages 350 to 351, 354, 355, 357 to 360. In summary, Mr. Bowman explained that on the night of 7 March 2002 he had been working as a security man on a building site near Acacia Way. He was in a portakabin on Newton Station Road, near the bridge. At about 10 p.m., or just after 10 p.m., he heard a car screeching away, and went outside. The car was white, and quite big. He was unsure of the make, commenting "I'm not very good with cars". He thought that the car had a boot, and was maybe a Volvo type. The police had taken him to somewhere next to Hampden to look at Volvo cars. He could only say that they were similar, not that they were the same car, although at one stage he saw a Volvo 440 which he thought was the type of car involved on 7 March 2002. He was then shown another type of car at Paisley police station. That car was a white Saab (the Saab found abandoned in Easterhouse: page 6 of the trial judge's report). Mr. Bowman then gave a statement that the white Saab at the police station was similar to the car he had seen screeching away on 7 March 2002, although he could not state that it was "the car". He confirmed that the white Saab at the police station was similar in shape, colour, and size, with the same number of doors, as the one he had seen on 7 March 2002. The witness was not sure whether there had been a spoiler at the back of the white car on 7 March.

The evidence of witnesses who discovered the abandoned car and its contents

[41] Witnesses Frank McSwiggan and Catherine Bailley discovered a white Saab car registration number F36 WCS, abandoned on the embankment at Balcurvie Road, Easterhouse. No transcript of their evidence was made available at the appeal hearing. Production number 29, a print-out of telephone calls received by the police, was referred to at the hearing, but no copies provided for the court. The following summary of the evidence was provided by the Advocate depute. The first telephone call about the car was made at 22.49 on 7 March 2002. That call was made by Catherine Bailley. However Mr. McSwiggan had seen the car earlier, and had taken an interest in it. He then went to Mrs. Bailley's house to persuade her to telephone the police. Mrs. Bailley gave evidence that she and Mr. McSwiggan had a discussion, and that about ten minutes passed before she telephoned the police. Mr. McSwiggan had seen the car before approaching Mrs. Bailley. Accordingly the Advocate depute contended that a jury, if they accepted that evidence, were entitled to conclude that the car had been abandoned at some time earlier than 22.49 hours, possibly at about 22.30 hours.

Defence evidence

[42] The evidence led by the defence included the alibi evidence of Ann Ross, aged 47, a house sales manager employed in 2002 by Henry Boot Homes. A transcript of her evidence was available at the appeal hearing. Particular reference was made to passages at pages 434 to 435, and 445 to 446. What follows is a brief outline of some of her evidence.

[43] In examination-in-chief, Miss Ross explained that she had been introduced to the appellant at her wedding in September 2000. She met him again at a birthday party about a year later, when she was separated from her husband. They began a relationship, although Miss Ross was aware that the appellant had a partner, Margaret Welsh. Miss Ross and the appellant met frequently and went out together. Miss Ross told the jury that she kept a diary, to which she referred in the course of her evidence.

[44] In early May 2002, Miss Ross returned from a holiday abroad. She learned that the police wanted to interview her. On 7 May 2002 she attended Shettleston police station and found herself being questioned about the appellant. She was told that he had been charged with murder. When asked about the date 7 March 2002, she referred to her diary. She told the officers that on 7 March 2002 the appellant had contacted her to explain that he was not free for a future engagement, and then at about 7.30 p.m. or 8 p.m. he had collected her in his blue Mercedes car. They had driven out to Bowling, to the Clydeside area generally, back along Great Western Road in Glasgow, out to Temple, then to Bearsden, and then to the Hogshead pub in Woodlands Road near Charing Cross. During their drive they had looked at newly-built houses and blossom trees, and then they had a drink together in the pub. The appellant dropped Miss Ross at her home at about 11 p.m.

[45] Miss Ross stated that she had allowed the interviewing police officers to look at her diary. After the police interview, she gave her diary to a solicitor for safe-keeping. The diary remained with the solicitor until lodged as a production in the trial.

[46] In cross-examination, the Advocate depute took Miss Ross through some other entries in her diary, and also referred to entries in production number 40, a record of outgoing calls for mobile phone number 07958173538 (which the Crown suggested to the jury was a phone used by the appellant). The Advocate depute sought to undermine Miss Ross's credibility in several ways. For example, he drew attention to a diary entry which appeared to show that Miss Ross and the appellant were together watching a film in a cinema during the evening of 15 February. Miss Ross was asked what time the film began. She replied "It was about eight, eightish ... eight-twentyish I think" (page 435 of the transcript). Later in cross-examination, the Advocate depute drew attention to an entry in the record of outgoing calls showing a call at 20.53.31 to Miss Ross's mobile telephone number 07785741265 (page 446 of the transcript). The Advocate depute asked Miss Ross if the appellant had telephoned her while they were at the cinema together. Miss Ross responded that she might have been "wrong on the time", that the appellant had perhaps telephoned her when he was coming to pick her up, and that the film may have started at nine o'clock (page 451 of the transcript). The Advocate depute further suggested to Miss Ross that she had not allowed police officers to look at her diary during the interview. That suggestion was denied.

Submissions for the appellant

[47] The appellant's contention was that no reasonable jury having been properly directed could have been satisfied beyond reasonable doubt that the appellant committed the murder. No criticism was to be made of the trial judge's charge or report. Further, it was accepted that there had been sufficient evidence to go to the jury; that it was for the appellant to demonstrate why no reasonable jury could have returned a verdict of guilty; and that the issue raised was for the court to determine, on a case-by-case basis, having looked at the evidence led. Reference was made to King v H.M. Advocate, 1999 J.C. 226, Lord Justice-General Rodger at pages 229 to 230.

[48] The Crown had relied upon three areas of evidence: (i) identification evidence; (ii) evidence of the clothing and Yazoo bottle found in the car, and the DNA and firearms discharge residue derived therefrom; and (iii) evidence relating to a mobile phone and a telephone call made at 10.32 p.m. traced to a part of the M8 motorway near Easterhouse, where the car had been abandoned.

[49] The defence had relied mainly upon a defence of alibi, spoken to by witness Ann Ross, together with the evidence of Stephen Madden, who had seen an individual get into a car which drove away shortly after the incident in Acacia Way. Once in the car, the individual had removed a mask, revealing his face. Mr. Madden had not identified the appellant as being that individual. The defence also maintained that the getaway car had never been identified, but coincidentally a burned-out car was discovered in the Easterhouse area. It was submitted that there was no real link between the car and the events in Acacia Way. That submission was made recognising that the car contained items with FDR of the same type as that found at the scene of the murder. The FDR was not of a specific type, and could have come from any firearm.

(i) Identification evidence

[50] Tracy McAlroy, the widow of the deceased, had heard noises, looked out of her house at Acacia Way, and seen a man leaving the scene. He had turned round and she had seen his eyes. When giving evidence, she pointed to the appellant and identified him by his eyes. The defence had challenged that identification both in cross-examination and when addressing the jury. In particular, in her many statements to the police, Mrs. McAlroy had not mentioned eyes. In addition, she had given a number of accounts about whether she had actually opened her door, or whether she had looked through a glass panel of the door. Further, in the course of their investigations, the police had shown Mrs. McAlroy a dummy or mannequin dressed in the clothing recovered from the abandoned car. That dummy had eyes, and in the course of cross-examination it had been suggested to Mrs. McAlroy that she might be recollecting the dummy's eyes.

[51] In this context, it was significant that witness Stephen Madden had seen an individual get into a white car near Acacia Way. He had seen the individual pulling off a mask, revealing his face. Mr. Madden described the man as having a round ball head and face, with short cropped hair. Mr. Madden had looked at the appellant in court, and had not identified him as the individual whom he saw getting into the car and pulling off the mask.

[52] Apart from her identification by eyes, Mrs. McAlroy's evidence had been fairly general, about build, and type of clothing. Her evidence about clothing had been contradicted by other witnesses, and by herself. For example, Mrs. McAlroy had earlier told the police about a "padded" jacket. The neighbour Julie Waugh had assisted the police artist to produce pictures of the clothing she had seen, which did not look like the clothing described by Mrs. McAlroy. Other witnesses had given various descriptions of the jacket, including descriptions of its being puffy and bubbly.

[53] In summary, the quality of the identification evidence was poor. It contained contradictions and inconsistencies. For the jury to convict, they would have had to reject the description of the jacket as "padded", and reject the drawing of the jacket produced by the artist with the assistance of witness Mrs. Waugh.

(ii) The clothing and the Yazoo bottle in the abandoned car

[54] Clothing had been taken from the abandoned car. The jacket and trousers appeared to be waterproof clothing. While DNA identified as the appellant's had been found on the jacket, no DNA had been found on the driving wheel.

[55] Reference was made to the report by the trial judge where he gave a view at page 11 that "in order to link the appellant indirectly to the murder through the presence of his DNA, and of FDR, on items of clothing found in the abandoned Saab, the jury would have had to accept Tracy McAlroy's uncorroborated (and significantly contradicted) identification of the items in question as those worn by her husband's killer." Mrs. McAlroy's original description of the jacket to the police referred to it as "padded". The neighbour Julie Waugh had seen the killer from a window on the first floor of her house. She had assisted the police artist to produce drawings, and had described a jacket with front pockets, padded about the shoulders, with a raised collar. It was submitted that her description and the police artist's drawings were wholly different in design, bulk, and collar from Mrs. McAlroy's description. Thus there was conflict in the descriptions of the clothing. In order to reach a verdict of guilty of Charge 1, the jury would have had to reject all accounts of the killer wearing a distinctive padded jacket (which was one of Mrs. McAlroy's earlier descriptions). Mr. Keegan submitted that if it was not established that the jacket found in the abandoned car was the jacket worn by the killer, there was no link between what was found in the abandoned car and the killer.

[56] Furthermore, there were various accounts of the size, type and make of car seen near the killing at Acacia Way. The jury would have to conclude that the abandoned white Saab was indeed the getaway car, notwithstanding contrary evidence from witnesses such as the security guard Charles Bowman, who had given evidence that he thought that the white car near the scene was a Volvo, possibly with a spoiler. Other witnesses had described different makes and different shapes of car. Such discrepancies might not matter in a case where other evidence made out a strong case against the accused: but in the present case, where the evidence linking the crime to the appellant was thin, such discrepancies were important.

(iii) The evidence relating to the telephone call at 10.32 p.m.

[57] The mobile phone with the number 07958173538 was registered to a lady named Finnegan, who lived next door to the appellant's mother. When the phone was examined, it was found to contain numbers which corresponded with various numbers in a filofax belonging to the appellant. The telephone call at 10.32 p.m. on 7 March 2002 had been used by the Crown in an attempt to show that the appellant had been near Easterhouse at that time and date, and not in Bowling or Clydebank, as Ann Ross stated in her evidence. As the trial judge had pointed out in his report at page 11, there was no direct evidence that the appellant was the normal user of the mobile phone from which the call at 10.32 p.m. was made, nor was there any direct evidence to show whether he, or someone else, had possession of the phone at the material time. Those were important matters, as there was no evidence, other than the mobile telephone call, to contradict the evidence of Ann Ross regarding her outing with the appellant on the evening of the murder.

Summary of the defence position

[58] In conclusion, Mr. Keegan accepted that the Crown had made out a circumstantial case, including the evidence of the telephone call near Easterhouse; the abandoned and partially-burned car; the DNA and FDR found on items in the car; the evidence about the killer's face being obscured, taken with the evidence that a snood had been found in the abandoned car. He accepted that there had been a sufficiency of evidence such that the case could go to the jury. But the appellant's submission was that the Crown evidence had been thin and tenuous. The DNA of two other people had been found on the jacket and the gloves, although the major component was the appellant's. [It should be noted here that the forensic report production number 27 reveals that only the DNA of the appellant was found on the jacket: see paragraphs [27] and [28] above.] On one view of the evidence, there was no link between the jacket worn by the killer and the jacket found in the car, apart from the evidence of Tracy McAlroy. The jury had been asked to depend upon the evidence of Tracy McAlroy, although her evidence had been contradicted by others and by herself.

[59] In summary, the quality of the identification evidence was poor. It contained contradictions and inconsistencies. For the jury to convict, they would have had to reject the description of the jacket as "padded"; reject the drawing of the jacket produced by the artist with the assistance of the witness Julie Waugh; and reject the evidence of Ann Ross who told the jury that she was with the appellant at places distant from the scene of the crime at the relevant time. On the evidence led, and having been properly directed, no reasonable jury could have reached a verdict of guilty on Charge 1.

Submissions for the Crown

[60] The Advocate depute contended that the undisputed evidence outlined in paragraph [25] above, when assessed together with the DNA evidence, the FDR evidence, the telephone evidence and the evidence of the appellant's police interview, all as outlined in paragraphs [27] to [31] above (i.e. the first chapter of evidence), entitled the jury to reach at least six logically connected inferences:

1. The jury were entitled to infer from the circumstances of the car having been abandoned and an attempt having been made to set it on fire, coupled with the scanner operating on the police wavelength, that the Saab had recently been used in connection with criminal activity.

2. The jury were entitled to infer from the facts of abandonment and attempts to burn the car that the intention had been to destroy any evidence which might implicate someone in that criminal activity. As the gloves, jacket, snood and trousers had been left in the car, and were the only items of clothing left in the vehicle, the jury were entitled to conclude that the intention was to destroy those items, and therefore that those items had been associated with the criminal activity.

3. The jury were entitled to conclude from the presence of FDR on items of clothing within the vehicle that the criminal activity with which the vehicle had been connected involved the discharge of a firearm.

4. Since the evidence demonstrated that (a) the gunman had made a getaway as a passenger in a white car which drove in a direction which could lead to Easterhouse; (b) FDR was found on clothing in the car; and (c) there were no reports of any other shooting incidents at the relevant time, the jury were entitled to conclude that the criminal activity with which the vehicle had been connected was the shooting in Acacia Way.

5. Having so concluded, the jury were entitled to infer from the presence of the appellant's DNA on the gloves, jacket and snood, that it was the appellant who had been the gunman in Acacia Way. A jury would be entitled to give weight to the fact that DNA matching the appellant's DNA had been found on the Yazoo bottle and on items of clothing in the car, and also to the location of the clothing - for example, the gloves had been found in the front passenger footwell (and the gunman had been seen getting into the front passenger seat). The DNA evidence linked the appellant not only to the clothing, but to the car itself. To that extent, the Advocate depute took issue with the approach adopted by the trial judge in his report at page 8.

6. The jury were also entitled to conclude that the telephone call made at 10.32 p.m. had been made by the appellant, and accordingly that at 10.32 p.m. the appellant was in the vicinity of Easterhouse; also that it was at about that time that the Saab was abandoned. That sixth inference further fortified the fifth inference, noted above.

[61] Accordingly the Crown case based on the uncontroversial evidence assessed together with the DNA, FDR, and telephone evidence and the evidence of the police interview (i.e. the first chapter of evidence), formed a circumstantial case against the appellant.

[62] Guidance in relation to circumstantial evidence could be found in Al Megrahi v. H.M. Advocate, 2002 J.C. 99, 2002 S.C.C.R. 509, particularly paragraphs [32] to [36]; Curley v. H.M. Advocate, 1999 S.C.C.R. 467, at pages 468F to 469F; Maguire v. H. M. Advocate, 2003 S.C.C.R. 758, at paragraphs [3] to [5], [8], [10] to [11], [13], [18], [19], and [20]. In Maguire there had been less evidence constituting a sufficiency than was available in the first chapter of evidence in the present case. Bearing in mind the guidance in the authorities cited, the Advocate depute submitted that the clear circumstantial evidence to which he had referred would have been sufficient for a jury to convict. In the light of the authorities quoted with approval in Al Megrahi, it could not be argued that no reasonable jury could have convicted on the facts and circumstances identified so far. Those facts and circumstances formed the bedrock of the Crown case.

[63] Nevertheless there were additional facts and circumstances available to the jury, and capable of having a fortifying effect. For example:

[64] The evidence of Tracy McAlroy. While the trial judge in his report noted that Mrs. McAlroy told the police that she had looked through glass panels in or near her front door, and that in such circumstances her view of events outside must have been hindered by reflected light from the glass, it was for the jury to decide, on the whole evidence, whether or not she had looked through a glass panel. The transcript of her evidence at pages 11 to 12, 43, 85, 91 to 92, and 103 suggested that she had opened her front door and seen the killer passing from right to left under a street light not far from her, and that he had looked in her direction when the door opened. The Advocate depute also referred to the Crown junior's notes of evidence given by Mrs. McAlroy's sister Kelly, which was to the effect that Mrs. McAlroy had indeed opened the front door.

[65] In relation to Mrs. McAlroy's identification of the appellant by the eyes, it was accepted that Mrs. McAlroy had not mentioned eyes to the police. That point had been put to her in cross-examination, and would be borne in mind by the jury when assessing her evidence. The trial had been Mrs. McAlroy's first opportunity to assess her recollection of the eyes, for although an identification parade had been arranged, with appropriate face-coverings, the appellant refused to participate and the parade had to be abandoned.

[66] Turning to Mrs. McAlroy's description of, and identification of, the killer's clothing, the trial judge was not correct at page 4 of his report to suggest that the witness had spoken of "a padded jacket, Eskimo-type", nor was he correct to suggest that label 3 could not be described in these terms. The witness had described a jacket as outlined in paragraphs [33] to [34] above, describing only the hood as being of Eskimo-type (as indeed was the hood on jacket label 3, as shown in photograph A of production number 8). Furthermore, there was something at the front of the jacket shown in photograph A which might be described as padding, but that aspect of the jacket had not been explored in evidence. The descriptions and details given by Mrs. McAlroy (dark in colour, with a sheen, a front zip, a hood, and waist-length) were all consistent with what one saw in photograph A. It was for the jury to assess whether the various words used by the witness to describe the garment worn by the killer matched label 3, and to assess the effect of any inconsistency between her description and label 3.

[67] At page 4 of his report, the trial judge suggested that there was no other evidence about the clothing of the killer which could assist the jury. But that was to underestimate the value and effect of evidence available to the jury, in three categories: (i) the neighbours in Acacia Way, whom the jury were entitled to assess as respectable and credible; (ii) the witnesses who had been in Newton Station Road, two of whom had been hostile; and (iii) the witnesses who discovered the abandoned car and its contents. On the basis of that evidence, the Crown had been able to demonstrate that the killer was driven away in a white car, leaving a jacket in the car similar to and consistent with that worn by the killer at Acacia Way. Accordingly evidence about clothing supportive of the Crown case did not come solely from Mrs. McAlroy.

[68] The neighbour Phyllis Craig gave evidence identifying label 3 as resembling in certain respects the garment which the killer wore in Acacia Way. It was not clear why the trial judge in his report at page 5 had noted something to the contrary. So far as the neighbour Julie Waugh was concerned, the Advocate depute submitted that the witness had given evidence of a view from above, in an area with no street lighting and not very good visibility. He suggested that such a view was not "a clear view", the terms used in the trial judge's report at page 5. In any event, while it was fair to take account of the fact that the witness had assisted the police artist in producing a series of sketches, and that the clothing shown in those sketches did not match the jacket label number 3, there was no reason to assume that Julie Waugh was more accurate or reliable than other witnesses in the area. When assessing the evidence of the two neighbours, it could be seen that Phyllis Craig gave evidence regarding the assailant's clothing which was similar to that given by Mrs. McAlroy. Julie Waugh's evidence was different. It was for the jury to decide what evidence to accept. Thus, evidence about clothing supportive of the Crown case did not come solely from Mrs. McAlroy.

[69] As for as the evidence of the witnesses in Newton Station Road, the Advocate depute explained that there had been no evidence about the appellant's appearance in March 2002 (the month of the murder). However there was evidence about what he looked like when detained in May 2002. His hair had been swept back in a pony tail. During his trial he had worn long shoulder-length hair. Since Stephen Madden had only seen the passenger in the white car from a front view, someone with hair in a pony tail might look like someone with short hair. The assessment of the evidence of Stephen Madden and Agnes Edgar was entirely a matter for the jury. It would not be surprising if the jury decided to pay little or no attention to their evidence, bearing in mind the reluctant manner in which it was given. There was no assumption that the evidence of either would be accepted by the jury. Their evidence was certainly not to be treated as a bench-mark against which other evidence fell to be tested. Turning to the evidence of Charles Bowman, the Advocate depute submitted that Mr. Bowman's evidence vouched the proposition that the car recovered from Easterhouse was at least similar to the one which Mr. Bowman had seen in Newton Station Road. Contrary to the trial judge's view at page 12 of his report, Mr. Bowman's evidence, if accepted, was consistent with the abandoned Saab being the getaway car.

[70] In relation to the evidence about the discovery of the abandoned car and its contents, the Advocate depute submitted that the finding of the radio scanner operating at police frequency was an important piece of evidence which the jury were entitled to take into account. Further, the jury were, on the evidence, entitled to conclude that the car had been abandoned at about 10.30 p.m. (as explained in paragraph [41] above). There was no evidence justifying assumptions that the killer was "intelligent and calculating" (page 12 of the trial judge's report). Although the killing was clearly pre-planned, it was not sophisticated. Nothing about the execution of the crime, or the mode of escape, suggested intelligence. Also it was open to the jury to draw the inference that, far from leaving the clothing to be examined by the authorities (as suggested at page 12 of the judge's report), the killer's intention was to avoid their being so examined. While the burning of the car had not been successful, presumably due to lack of oxygen, the intention had plainly been to destroy the car and its contents.

[71] Turning to the appellant's interview with the police, the Advocate depute pointed out that the appellant offered no explanation for the presence of his DNA on the relevant items. He denied having been in the vicinity of firearm discharge for a period of many years. He denied any association with the Saab car. He had been shown all the clothing and the bottle, and stated that he had nothing to do with any of those items. He gave no explanation which would account for his DNA being found on several of the items, nor did he give an explanation for the presence of the clothing in the car.

[72] The Advocate depute submitted that, when the evidence was examined in the manner set out above, one could see that a body of evidence had been available to the jury for their examination and their assessment whether a case had been made out against the appellant. He submitted that the body of evidence, if accepted, entitled the jury to conclude that the killer was driven away in a white car, and had left in that white car a jacket similar to and consistent with witnesses' descriptions of the jacket worn by the killer in Acacia Way. It was notable that the evidence about the jacket did not come solely from Tracy McAlroy. Set against that body of evidence was the alibi evidence of the defence witness Ann Ross, supported by her diary. At the trial, the prosecuting Advocate depute had attacked Miss Ross's credibility as noted in paragraph [46] above. He led the evidence of police officers who interviewed Miss Ross. They stated (contrary to her assertions) that she had not let them see her diary when interviewed.

[73] In conclusion, the Advocate depute submitted that the evidence which he had identified disclosed a logical and compelling basis upon which a jury could be satisfied of the appellant's guilt. There was the uncontested evidence, summarised in the nine propositions in paragraph [25] above, further supported (if the jury chose to accept it) by evidence about the DNA and FDR, the telephone call at 10.32 p.m., and the police interview. The assessment by the trial judge of the DNA and FDR evidence at page 8 of his report omitted to consider the effect of the evidence about the DNA on the Yazoo bottle. That evidence linked the appellant not only with the clothing, but with the abandoned white Saab car. That inference had to be assessed together with the FDR evidence, the evidence of the telephone call, and the evidence about the police interview. The first chapter of evidence entitled the jury to draw the six logically connected inferences outlined in paragraph [60] above. In addition, further evidence was available to the jury from the contested areas outlined in paragraphs [32] to [41] above (the second chapter of evidence), if the jury chose to accept any of that evidence. There were a number of rational reasons for rejecting the alibi evidence of Ann Ross, insofar as her evidence was inconsistent with the Crown evidence. Against that background, the Advocate depute disputed the trial judge's view, expressed at page 12 of his report, that there were "extensive difficulties to be overcome if [a verdict of guilty of Charge 1] was to be reached". On the contrary, the case led by the Crown represented an attractive and substantial circumstantial case. Clear evidence, logically linked, had the effect of demonstrating the guilt of the appellant in respect of Charge 1. On the basis of the evidence, it could not be said that no reasonable jury, properly directed, could have returned a verdict of guilty of that charge.

[74] Accordingly the appeal based upon section 106(3)(b) and set out in Ground 4 in the Supplementary Note of Appeal should fail. No argument was now advanced in terms of Ground 1 of the Note of Appeal. The second and third grounds of appeal had no merit, and in any event, the court had indicated that, in the light of the appellant's submissions, it was unnecessary for the Crown to make a specific submission in response to those grounds of appeal. The court was invited to refuse the appeal.

Discussion

[75] Authorities relating to circumstantial evidence were conveniently reviewed in the Opinion of the Court, delivered by the Lord Justice-General, in Al Megrahi v. H.M. Advocate, 2002 J.C. 99, 2002 S.C.C.R. 509, at paragraphs [32] to [36]. Those authorities vouch inter alia the following propositions:

1. In a circumstantial case, it is necessary to look at the evidence as a whole. Each piece of circumstantial evidence does not need to be incriminating in itself. What matters is the concurrence of testimony.

2. The nature of circumstantial evidence is such that it may be open to more than one interpretation. It is for the jury to decide which interpretation to adopt, and whether to draw the inference that the accused is guilty of the crime.

3. Each of the several circumstances may be quite neutral and not incriminating. The question for the jury is what inference they draw, beyond reasonable doubt, when the circumstances are viewed as a whole.

4. There may be a body of evidence, for example, alibi evidence, which is quite inconsistent with the accused's guilt. A jury must consider all the evidence. But having done so, they are entitled to reject the inconsistent evidence if they so choose.

[76] In our view, the case made against the appellant is indeed a circumstantial case in which the facts and circumstances allowed a jury to infer the guilt of the appellant. As the Advocate depute submitted, the mainly undisputed evidence outlined in the first chapter of evidence (paragraphs [25] to [31] above) formed a circumstantial case entitling a reasonable jury to find the appellant guilty of Charge 1. The Advocate depute outlined six logically connected inferences, set out in paragraph [60] above, as a rational line of reasoning which a reasonable jury might adopt on the basis of the evidence in the first chapter. We agree that such a line of reasoning, leading to a verdict of guilty of Charge 1, was a rational one which it was open to a reasonable jury to adopt. In drawing an inference of guilt from that first chapter of evidence, the jury might be fortified by evidence in the second chapter of evidence (paragraphs [32] to [41] above), should the jury choose to accept any or all of it. For example, it was for the jury to decide whether or not Tracy McAlroy opened her front door and looked outside, unobstructed by glass panes. It was for the jury to decide what to make of her identification of the appellant by the eyes. It was for the jury to assess, weigh up, and compare the descriptions of the killer's clothing given by various witnesses, and to prefer one or more descriptions to others. It was for the jury to consider Stephen Madden's evidence (including his description of the passenger in the white car, and the fact that he did not identify the appellant as that passenger), to assess his evidence in the light of his demeanour and evident reluctance to testify, and to weigh that evidence against other evidence which they chose to accept. Decisions in relation to evidence from the second chapter could thus give a reasonable jury further strands of evidence strengthening the circumstantial case against the appellant.

[77] The fact that within the evidence as a whole, there was testimony which might be seen as inconsistent with, or contradictory of, the Crown's contention - for example, Stephen Madden's description of the passenger in the car or, importantly, the evidence given by Ann Ross in support of the appellant's defence of alibi - does not mean that the jury's decision was irrational and one which no reasonable jury could reach. It is part of a jury's function to weigh the competing evidence. They are entitled to prefer evidence inferring guilt and to reject competing defence evidence. We do not consider that, viewed against the strong circumstantial case presented by the Crown, the evidence of Miss Ross could properly be described as being "so overwhelming in comparison with the evidence relied upon by the Crown that no reasonable jury could convict" (Harper v H.M. Advocate, 2005 S.C.C.R. 245 paragraph [35]).

[78] As already indicated, section 106(3)(b) of the 1995 Act sets an objective test, requiring the appellant to satisfy this court that, on the evidence led, and having been properly charged, no reasonable jury could have reached a verdict of guilty of Charge 1. We are satisfied that at least one rational line of reasoning based on circumstantial evidence, much of which was undisputed, and leading properly to a verdict of guilty, has been identified. In these circumstances, the test set by section 106(3)(b) has not in our view been met. It has not been demonstrated that no reasonable jury, having been properly directed and having considered all the evidence in the case (including the alibi evidence), could have been satisfied beyond reasonable doubt that the appellant was guilty of Charge 1.

Decision

[79] For these reasons we refuse the appeal.