Lady Dorrian

Lord Bracadale

Lord Drummond Young



[2015] HCJAC 6

XC422/13 & XC404/13




delivered by LADYDORRIAN






















Appellant, Jonathan MacKinnon:  C Fyfe Solicitor Advocate; Paterson Bell (for Bruce Short & Co)

Appellant, Stefan Millar: CM Mitchell, Farell;  John Pryde & Co (for Blackwater Law, Glasgow)

Respondent:  I McSporran Solicitor Advocate, AD


29 October 2014
[1]        In this case the ground of appeal for the appellant MacKinnon was that no reasonable jury, properly directed, could have convicted.  The propositions advanced in support of this related to the evidence of a forensic examination of the locus, and its nature, and the evidence of the pathologists.  It was said that there was a narrow window during which the murder must have been committed had the appellant been guilty - somewhere between about 2350 hours on the Tuesday and 0200 hours on the Wednesday, in which period the jury would have needed to accept that the first appellant’s blood had been deposited at the locus, during commission of the murder.  It was said that this was not a reasonable inference for the jury to draw having regard to the facts that: the locus was difficult to enter (via a broken window) and to negotiate once in; there was neither street lighting nor electricity at the locus; that the appellant was bleeding, as was the deceased, but there was no forensic trail in or out of the property; and the locus was in a remote location, a 24 minute walk from the appellant’s mother’s house in daylight and sobriety, neither of which conditions would have been applicable had the journey been made by the appellant at the time suggested.

[2]        There was defence evidence from Professor Busuttil that a gap in time between the death occurring on the 23rd and discovery of the body on the 29th was highly unlikely, given the nature of the post mortem changes.  Our attention was drawn by Mr Fyfe to a passage in the evidence of Dr Rankin where she accepted that the absence of decomposition was in general terms unusual. 

[3]        For the appellant, Millar, the only ground again was the “no reasonable jury” point, in this case based upon the principal source of evidence having come from Dominic Long, who, it was submitted, might have misunderstood a conversation between himself and the appellant, Millar. The evidence of Millar had been that in the course of a conversation with Long, the appellant Millar had reported what the police had alleged against him.  It was argued that the nature of Long’s condition was such that he might have had difficulty processing the information which he was given. His evidence was crucial in providing a sufficiency of evidence against the second appellant, but was said to be wholly lacking in quality, character and strength largely under reference to issues capable of affecting his credibility and reliability, such as his having originally lied in court, his ADHD, his use of valium, and the terms of what he reported.

[4]        For the Crown it was submitted that this was a circumstantial case, and the absence of a blood trail at the locus was no more than a curious circumstance, the crown having clearly proved that the deceased had been murdered, and that his body was found within the locus. It was not necessary for the jury to reject the evidence of Dr. Busuttil before convicting, and the evidence did not suggest that  there was anything inherently unlikely in the evidence given by Dominic Long. In particular, Dr. Cameron’s evidence provided a basis upon which the jury could conclude that, given emotionally salient information Long would have been able to process it.

[5]        The test set by section 106(3)(b) is, as has been noted, both an objective one and a high one.  An appeal is likely to succeed in relatively rare circumstances.  The verdict of the jury can be quashed only if this court is 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, a matter which will always depend on the particular circumstances of the individual case.  As it was put in McDonald v Her Majesty’s Advocate 2010 SCCR 619 by Lord Carloway:

“The question for the court is whether, looking at the totality of the evidence, it is satisfied that a miscarriage of justice has occurred because no reasonable jury could have held the case proved beyond reasonable doubt.  In answering that question, the evidence … should not be looked at in isolation but should be taken along with, and in the context of, the other testimony at the trial …  In dealing with appeals under section 106(3)(b), the court is not concerned with the legal sufficiency of the evidence.  It requires to carry out an assessment of the reasonableness of the verdict ‘with the benefit of its collective knowledge and experience’.  As part of that assessment it is no doubt correct in broad terms to say, as was submitted, that the evidence must reach a “base line” of quality.”


[6]        Essentially then, for an appeal of this kind to succeed, the court requires to be satisfied that there was no cogent framework of evidence that the jury were entitled to accept as credible and reliable and which would have entitled them to return the verdict which they did.  (Wilson v HM Advocate  2010 SCL 1042, para 23).  In the present case, it cannot on any view be said that no reasonable jury could have convicted the appellants.  As the Lord Justice General pointed out in King it is by no means unusual to find there is a body of evidence in a case which is inconsistent with the accused’s guilt.  However, an appeal based on the argument that the jury’s rejection of that evidence resulted in a verdict which no reasonable jury could have returned, will only succeed if there is not otherwise a reasonable and lucid basis in evidence upon which conviction might properly be based.  Here taking the Crown’s evidence at its highest there was a rationally persuasive case against both appellants which the jury were entitled to accept. The weight to be given to the defence points, and whether all or any of them introduced a reasonable doubt, were matters for the jury to decide.  These are typical jury questions. 

[7]        The submissions about the locus, made on behalf of the appellant MacKinnon,  failed to take into account that both the appellant and the deceased, were familiar with the locus and had with them a source of light in the form of a mobile phone.  Moreover, all this information was before the jury to take into account in their assessment of the evidence. Those parts of Dr. Rankin’s evidence which were selected for comment on behalf of the appellant need to be put into the context of the whole of her evidence, which was that there were specific factors in this case, which she had enumerated in detail, which would have accelerated heat loss and retarded decomposition. There was clear evidence from Dr Rankin that her findings on 30 November and 1 December, following discovery of the body on the 29th, were consistent with death having occurred in the early hours of the 23rd.  She explained in detail the reasons why the post mortem interval might be greater in this case than in the average situation, based on factors which Professor Busuttil himself conceded were relevant to that issue.  The matter was fully explored with Dr Rankin in cross-examination and with Professor Busuttil whose evidence was that he thought such a gap was unlikely, whilst observing that nevertheless, “In medicine everything is possible -sometimes you are surprised by the exception to the general rule.”  Professor Busuttil had not examined the body whereas Dr Rankin, someone he described as experienced and good at her job, had done so and had also carried out an examination at the locus.  There is absolutely no basis for suggesting that the jury were not entitled to accept the evidence of Dr Rankin.  They were entitled in addition to consider her evidence in the context of other evidence in the case from which they would have been entitled to conclude that the deceased had last been seen alive late on the 22nd or in the early hours of the 23rd in the company of both appellants, and had not been seen alive since then.  Three individuals, all wearing hoods, were seen walking in a direction which would take one past a field to the locus at a time which would be consistent with the Crown case if these three individuals were the deceased and the two appellants.  Smeared blood at the locus contained DNA matching both that of the deceased and the appellant MacKinnon who was known to be bleeding at the time.  The points advanced in support of this ground of appeal amount to no more than normal jury points.  The jury were perfectly entitled to reject these points and to convict there being a perfectly cogent crown case entitling them to do so.

[8]        As to the argument that Dominic Long might have misunderstood the conversation between himself and the appellant, Millar, and that his evidence was suspect for the reasons which were advanced to us, it is quite clear that the suggestion of a misunderstanding was put in evidence to the witness Long who categorically denied it.  His evidence was quite clear that he considered the appellant to be bragging to him about what he had done and that he was not in any way merely repeating what the police had been alleging against him.  Long’s evidence went beyond the information which the police had put to the second appellant and there were several aspects of his evidence which were capable of enhancing his credibility.  The jury rejected the appellant’s contentions and they were perfectly entitled to do so.  The criticisms made of Mr Long as a witness were again all put before the jury and they had evidence from a psychologist about the possible effect of Long’s conditions on comprehension and processing of material, although her evidence was somewhat limited by never having examined the witness.  The weight to be given to contradictions and inconsistencies brought out in the defence case is a matter for the jury and it cannot be said that there was no material in the evidence to support the conclusions which they obviously reached. 

[9]        Whether or not the verdict was unreasonable requires consideration of the evidence as a whole.  The testimony of a particular witness should not be looked at in isolation to test whether it was unreasonable for a jury to convict but must be looked at in the context of all the other evidence in the case.  Mr Long’s evidence, though critical, was not the only evidence against the appellant and it must be looked at in the context of that evidence.  Throughout the critical time, the appellant, on his own account, placed himself in the presence of his co-accused, MacKinnon whose blood, mixed with that of the deceased, was found at the scene.  There was no evidence that the deceased was ever seen again after leaving in the company of the appellant and there was pathological evidence that was consistent with death occurring in a few hours after that sighting. 

[10]      A jury is entitled to accept parts of a witness’s evidence and reject other parts and issues of credibility and reliability are normally matters entirely for a jury’s assessment.  To impugn a jury’s decision on these matters on the basis argued in the present case, would essentially require us to be satisfied that, as referred to in McDonald ,the evidence was so grossly riddled with deficiencies, contradictions and inconsistencies that no reasonable jury, properly directed, could have stamped it with the description of being reliable or credible.  Here there was clearly a satisfactory base line of evidence which would properly entitle the jury to carry out their task.  This is fundamentally a circumstantial case where the various pieces of evidence, if accepted and viewed as a whole, entitled the jury to be satisfied beyond reasonable doubt that the appellant was guilty as libelled.  The appeals will therefore be refused.