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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General
Lord Mackay of Drumadoon
Lord Abernethy
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[2009] HCJAC 2Appeal No: XC231/06OPINION OF THE COURT delivered by LORD
ABERNETHY in APPEAL AGAINST CONVICTION by DAVID McBRIDE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act:
Alt: Young, A.D.; Crown Agent
Introduction
[1] The appellant is David McBride. On
"(1) between
10 December 2004 and 10 June 2005, both dates inclusive, at the
Antiques Warehouse, Unit 3A Yorkhill Quay, Glasgow and elsewhere, you were
concerned in the supplying of a controlled drug, namely Cocaine, a Class A
drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to
another or others, including in particular to Alexander Andrew Joseph Docherty,
formerly of Flat 6, 61 Croftside Avenue, Glasgow and Philip Mangan, c/o
Strathclyde Police, Stewart Street, Glasgow in contravention of
Section 4(1) of said Act: CONTRARY
to the Misuse of Drugs Act 1971, Section 4(3)(b);
(3) on
Charge (2), a charge of breach of the peace, had earlier been
withdrawn by the Advocate depute.
[2] On
charge (3) the appellant was sentenced to life imprisonment with effect
from
[3] The appellant
has now appealed against his conviction for murder. The note of appeal contains three grounds of
appeal but Mr Findlay, the appellant's senior counsel, explained that
these were essentially directed at just one issue, namely, the way in which the
trial judge had dealt with the evidence in his charge to the jury, which was
mistaken in one respect and lacked the necessary balance. As a result a miscarriage of justice had
occurred.
[4] There was no
dispute that the deceased, Alexander Docherty (familiarly known as Doc), had
been murdered at the time and place and in the manner described in the
charge. The issue was whether the person
who murdered him was the appellant. The
Crown case was that it was. The defence
case was that it was Philip Mangan, the only other person present at the
time. To that end a notice of
incrimination naming him and a notice of intention to attack his character had
been lodged by the defence.
The trial judge's
report
[5] In his report to this court the trial
judge stated as follows:
"Both
Alexander Docherty and Philip Mangan were cocaine addicts. Latterly Alexander Docherty (who was
familiarly known as 'Doc') supplied Philip Mangan but both were supplied by the
appellant over a substantial period. By
the time Alexander Docherty was murdered, both he and Philip Mangan were in
debt to the appellant. In Alexander Docherty's
case the sum was thought to be about £2,000.
In Philip Mangan's case it was about £450. Throughout June 2005 the appellant pressed
both men to pay their debts but he did so, if I might put it this way, in a hot
and cold fashion. This is borne out by
the text messages he sent to Alexander Docherty. These are reproduced in Crown Production 16 ...
and provide the basis for the allegation found proved by the jury that the
appellant previously evinced malice and ill-will towards Docherty.
Philip Mangan was a crucial witness
in the trial. He had been a successful
businessman and even, according to his former wife, a manufacturer of
furniture. Latterly his business lay in
antiques and mostly in furniture. Unit
3A at Yorkhill Quay was jam packed with furniture and the like, but of
somewhat variable quality. For about 18
years Mangan had been addicted to cocaine.
This led to a steady decline of his business which some years before the
murder had been transferred to his wife.
From a portakabin within the Unit he carried on some transactions but
there, mostly it appeared, he met and smoked cocaine with Alexander Docherty. It might be said that because of his
addiction he had fallen on somewhat evil days.
On
At some point the appellant went out
to his car. When he returned, he stood
just inside the door of the portakabin.
He said: 'Doc', which as I have said was Docherty's nickname. In his hand, he held in extended fashion a
double barrelled, side by side, sawn-off shotgun. There was no verbal threat of violence. The appellant then discharged the first
barrel into Docherty's right thigh from a distance of between 3 and 6
feet. As he fired the second barrel
Docherty said: '
As soon as the appellant left, Philip
Mangan called the emergency services.
His first call was timed at
Mangan was incriminated by the
appellant and cross-examined at length by defence counsel. Despite the vigorous and skilful
cross-examination, which included exploration of Mangan's association with
prostitutes in the portakabin to whom he there supplied cocaine, Mangan adhered
to the account I have set out above. As
was his right, the appellant did not give evidence."
The accuracy of the report was not
in dispute. Two points should be
added. First, not long after the phone
call to Docherty mentioned in the report, when Docherty had not turned up,
Mangan said he was asked by the appellant to phone Docherty again and see if he
was coming. Mangan did this and Docherty
said he was just getting into his car, or a taxi. Shortly thereafter Docherty arrived. Second, the murder weapon was never
recovered.
The judge's charge
[6] The
charge was a relatively short one. It
ran to only 19 pages. No issue is
taken with any of the directions in law.
The judge did not enter into the evidence in any detail. It was not disputed that he was perfectly
entitled to take that course. Towards
the end of his charge, however, he did mention two aspects of the evidence. Just before that he had made it clear to the
jury that the question for them was not "Who fired the gun that killed
Alexander Docherty?" but whether the Crown had satisfied them beyond reasonable
doubt that the person who shot him was the appellant. He also directed them that in determining
that question their assessment of Mangan's evidence was critical. They had to decide whether, having considered
all the evidence, they found him a credible and reliable witness. Upon their decision on that matter might
depend their answer to the question he had just posed.
[7] The
charge then continued as follows:
"And perhaps I should turn to look
at two other aspects of the evidence.
Mr Findlay is, of course, correct when he says that Mr Mangan
is crucial to the case and, as I have already indicated, you must make your own
assessment of him as a witness. In his
speech Mr Findlay asked you to imagine or picture what Mr Mangan was
like on the night of
Submissions of counsel
[8] After noting that the
judge had not reviewed the evidence in any detail in his charge Mr Findlay
said that towards the end he had referred to two aspects of the evidence. Mr Findlay accepted that he was entitled
to take that course but the obvious danger in doing so was that the jury would
see those aspects as having an importance which was out of balance with the
rest of the evidence. That is what was
likely to have happened here. Both
aspects that the judge had mentioned were detrimental to the appellant. Moreover, in dealing with one of them he had
misrepresented the defence position and this also had resulted in unfairness to
the appellant.
[9] The
first aspect which Mr Findlay dealt with (which was actually the second
aspect mentioned by the judge) related to passages in his closing speech to the
jury the previous day, in which he had said several times that it was Mangan
who had lured Docherty to his death. In
his charge the trial judge had suggested to the jury that they should consider
whether that was a fair description of what had happened. He then summarised from his own notes the
evidence that Mangan had given on this matter and concluded by asking the jury
whether, if his notes accorded with their recollection, it could fairly be said
that Mangan lured Docherty down to the warehouse unit. He then added: "Indeed, you might think there is no evidence
that he did so." Mr Findlay said
his position before the jury had been that the jury could accept Mangan's
evidence that he made both telephone calls to Docherty from the warehouse on
the fatal evening and they could accept that following those calls Docherty had
arrived at the warehouse and had been shot shortly thereafter. They should, however, reject Mangan's explanation
that he gave the telephone to the appellant and that it was in response to what
the appellant had said to him that Docherty had come to the warehouse. If the jury accepted Mr Findlay's
position, they could infer that Docherty had come to the warehouse in response
to what Mangan had said to him. The
issue was somewhat coloured by the use of the word "lure" but in fact it was
the Advocate depute who had
first used that word in his speech to the jury to describe what the Crown said
the appellant had done. If Mangan had
been in the dock (instead of the appellant) the Crown would no doubt have said
that a sinister inference could be drawn on that view of the evidence. The evidence would not in itself have been sufficient
to convict Mangan but it would have called for an explanation and would have
been an adminicle of evidence, a circumstance which was capable of a sinister
inference.
[10] The other aspect of the evidence which the trial judge
mentioned in his charge related to the picture Mangan presented at the time of
the murder. Mr Findlay had referred to
this on a number of occasions in his speech to the jury. The trial judge had taken the point that was
being made to have been the physical state Mangan was in at the time when the
murder was committed and he went on to remind the jury that the first witness
on the scene after the shooting, Police Constable McCready, had described
Mangan as very shaken, very upset and apparently in shock. But the trial judge had mistaken the
position. Mr Findlay had not been referring
to the physical state Mangan was in at the time of the murder, but to the kind
of man he was around that time and the lifestyle he followed, as opposed to the
more respectable picture he had sought to present of himself in the witness box. That was clear from what Mr Findlay had
said in his speech to the jury as part of his wide-ranging attack on Mangan's
credibility. The jury were well aware
that that had been the nature of his attack on Mangan all the way through the
trial but this passage, in what was a concise charge, had been given towards
the end and shortly before the jury retired.
It did not accurately and fairly represent the defence position and may
have left the jury with the wrong impression of what that position was.
[11] In these circumstances the court should conclude that the
charge lacked the necessary balance and was unfair to the extent that it
amounted to a miscarriage of justice.
The appeal should be allowed and the conviction for murder quashed.
[12] In response the Advocate depute reminded us that there was no
evidence that Mangan had lured Docherty to the warehouse. The evidence of Mangan, which had been
accurately summarised in the charge, was the only evidence led on this
matter. On several occasions in
cross-examination it had been put to Mangan that he had persuaded Docherty to
come to the warehouse and Mangan had denied it.
There was no other evidence to support the view that Mangan had lured
Docherty to the warehouse.
Mr Findlay had not suggested to the jury that they could infer from
other facts that Mangan had lured Docherty.
He had told them it was a fact.
In these circumstances the trial judge was quite right to bring the
matter to the jury's attention in the way he did. It was true that the Advocate depute had told
the jury that Docherty had been lured to the warehouse but that was based on
the evidence given by Mangan as to what the appellant had done.
[13] With regard to the picture Mangan presented on the night of the
murder, the Advocate
depute accepted that the trial judge had misapprehended the point
which was being made by Mr Findlay in his speech to the jury. But it did not amount to a miscarriage of
justice. Mangan had been cross-examined
at considerable length. Most of the
cross-examination had been directed at his character. There was indeed no dispute between the
parties as to his character and the judge had said nothing to deflect the jury
from Mr Findlay's general attack on Mangan. At the end of his cross-examination of Mangan
no one on the jury could have been in any doubt that the defence were saying
that he, Mangan, had killed Docherty and that the Crown case had therefore not
been proved. That was equally true at
the end of Mr Findlay's speech to the jury.
Discussion
[14] In our opinion the trial
judge was well entitled to invite the jury to consider whether
Mr Findlay's assertions in his speech to them that Mangan had lured Docherty
to his death in the warehouse were a fair description of what, on the evidence,
had happened. The relevant passage in
the charge opens with a reminder to the jury to proceed on the evidence and
only on that. That is the context for
his later remarks. There was indeed no
evidence that Mangan lured Docherty.
Mr Findlay submitted to us that it could be inferred, if the jury
accepted Mangan's evidence that he had telephoned Docherty on each of the two
occasions in question but rejected his evidence of what followed. We are not persuaded that that is correct,
but in any event that was not the way Mr Findlay put it to the jury. He put it as a matter of fact and he did so
on a number of occasions. In that
situation we consider that the judge was well entitled to draw the jury's
attention to the matter for their consideration. There was in our opinion no unfairness in the
way he did so.
[15] On the other matter raised in the appeal, it was accepted by
the Advocate depute that the
judge misapprehended the point Mr Findlay was making in his speech to the
jury when he had reminded them of Mangan's circumstances and lifestyle at the
time of the murder and submitted that when considering his evidence they should
picture him in that light, as opposed to the more respectable light in which he
had sought to present himself in the witness box.
[16] In his speech to the jury Mr Findlay spent a considerable
time reminding the jury of Mangan's character at the time of the murder and
stressed on a number of occasions that in assessing his evidence the jury
should picture him as he was then rather than as he presented himself at the
trial. At the time of the murder
Mr Findlay said Mangan was a man who was really at the end of the
road. He was a cocaine addict, his business
had gone and he abused prostitutes in return for drugs. He went on as follows:
"And this
may be one of the important aspects of the whole case, ... to try and picture
Philip Mangan as he was at the time."
He contrasted that with Mangan's
appearance in the witness box, looking like a business man, with a smart suit
and well-spoken, and asked the jury a number of times to picture him as he was
at the time of the murder, concluding with these words:
"You must,
please, if you do nothing else for me in this case when you assess the
evidence, picture Mr Mangan not as he is now or what he wants you to
believe he is now, but as he was."
[17] In these circumstances we consider that the Advocate depute was correct
to make the concession that he did. The
question that then arises is whether the judge's error on this matter amounted
to a miscarriage of justice.
[18] We are clearly of the opinion that it did not. The trial had lasted seven days. As was accepted by Mr Findlay, the jury
would have been well aware throughout the trial that the defence were attacking
Mangan's character on the basis of the person he was and the lifestyle he was
leading around the time of the murder and asking the jury in effect not to
accept his evidence. Equally, in our
opinion, they could have been in no doubt from what Mr Findlay had said in
his speech that the defence were asking them to picture Mangan as he was at the
time of the murder rather than as he sought to present himself at the trial. In our opinion nothing that the judge said
could have raised any doubt about that matter.
The evidence of PC McCready as to the state that Mangan was in
after the shooting was not in dispute.
Indeed, in a later part of his speech to the jury Mr Findlay said
that of course Mangan was going to be upset;
either he had just seen a murder being committed or he had just murdered
somebody. But that was not the point
that Mr Findlay had been making when he asked the jury to picture Mangan
as he was at the time and, having regard to all that had passed in the course
of the trial, we do not think that the jury could have been in any doubt about
that. The judge's mistake was, of
course, unfortunate but it did not in our opinion amount to a miscarriage of
justice.
Decision
[19] For all these reasons the
appeal is dismissed.