FRANCIS FEELY v. HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Justice General Lord Marnoch Lord Allanbridge | Appeal No: C657/97 OPINION OF THE COURT delivered by LORD ALLANBRIDGE in NOTE OF APPEAL AGAINST CONVICTION and SENTENCE by FRANCIS FEELY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: P.W. Ferguson; James M. Carmichael
Respondent: McMenamin, Q.C., A.D.; Crown Agent
17 March 2000
[1]The appellant was convicted after trial, on 19 August 1997, at Glasgow High Court, of nine charges involving lewd, indecent and libidinous practices and behaviour towards three young girls between about December 1985 and December 1995. He was sentenced to eight years imprisonment by the trial judge, temporary judge R.G. McEwan, Q.C. The trial began on 11 August 1997 and was completed on 19 August 1997 when the appellant was convicted and sentenced.
[2]In October 1997 an appeal was taken against both conviction and sentence. The appeal against conviction was then based on the ground that the conduct of the defence by the appellant's then solicitor resulted in a miscarriage of justice. It was stated that the defence was not properly or fully presented to the court in five particular respects. After sundry procedure this court, on 7 January 1999, issued an interlocutor recording that the appellant no longer insisted on the first three of the five subheads of his first ground of appeal (namely, ground of appeal 1(a), (b) and (c)), and allowed an additional ground of appeal, No. 2, with supporting affidavits, to be received. After further procedure a hearing on evidence in respect of this second ground of appeal only was arranged to be held before this court on 7 and 8 October 1999. At this first hearing eight witnesses were led on behalf of the appellant and at a second hearing on 6 and 7 February 2000, two witnesses were led on behalf of the respondent, followed by submissions of both counsel on the whole evidence.
[3]The second ground of appeal was in the following terms:
"2.There was a miscarriage of justice caused by the conduct of a Juror. Said Juror, who is named in the Affidavits hereinafter referred to was a friend of one of the Complainers. He sat in the Jury without declaring his personal interest and with the intention of securing a conviction. Reference is made to the Affidavits of Helen Croly, Angela Cairns and Siobhann McGuire which are herewith."
[4]Having heard all the witnesses in the case it was quite apparent to us that there were two completely different versions of events being given by the opposing witnesses. On the one side the appellant's witnesses spoke to an association between the first complainer, S.M. and a juror Billy Lanigan, at or about the time of the appellant's trial in August 1997. S.M. and Billy were alleged to have been on intimate terms as boyfriend and girlfriend. It was alleged that they were heard on various occasions discussing the trial with Billy saying words to the effect that S.M. was not to worry and that he (Billy) would help "to put him (the appellant) away". On the other side both S.M. and Billy, who were the only witnesses called by the respondent, said they did not even know each other and had never had an affair or discussed the case with each other.
[5]It is only after hearing all the evidence and the speeches of counsel upon such evidence that we were able to reach a clear conclusion as to where the truth lay. It is fair to say that after we had heard the eight witnesses led on the appellant's behalf we were not impressed by many of them but two of them, namely, Patricia Carroll and Michelle Cattrell, did appear to be credible witnesses at the time they gave their evidence. Both S.M. and Billy also appeared to be credible witnesses when they gave their evidence. In this situation it is necessary to rehearse the evidence of all the witnesses in some detail.
[6]The first witness was JOSEPH CROLY (19) who is presently living in Florida and had come from there to give his evidence in court. He said he had been in the Army Cadet Force when he met Billy Lanigan. A month or two after he left the Cadets he met Billy in Shettleston Road. Billy told him he was on a jury case "just now" and mentioned the name "Frank Feely". The witness then said "I said I knew him (the appellant)" and he said "That's him". He said Billy said nothing about the evidence. The witness explained that he knew the appellant because he and his sisters, Michelle and Helen, both worked at one time for the appellant in his carpet business. This witness then said that about two months after meeting Billy Lanigan he told his sister that he had done so. The witness said "It came up in a discussion. I think my sister introduced the topic of Mr. Lanigan and I said I met him when he was a juror". At the time we saw no reason to doubt that this witness had met Billy Lanigan in the street, albeit the topic seems to have been raised by his sister, Helen Croly.
[7]The second witness was ANGELA CAIRNS whose affidavit, dated 5 January 1999, was the second affidavit lodged with the second ground of appeal. Her police statement, dated 21 January 1999, was also available to us.
[8]Angela Cairns said she lived in Tollcross, and had stayed there for about ten years. She said she knew S.M. who stayed up the stair with Michelle Cattrell for a few months in 1996/7 and then S.M. moved away. She socialised with S.M. at weekends with a number of friends including Brian Smith, Katie Miller, Derek Burke and Michelle Cattrell, who were all later called as witnesses, apart from Katie Miller. She also said another member of the group, who all walked about together and sat on benches in Tollcross Road and went to Katie's house, was Billy Lanigan. He was a boyfriend of S.M. and kissed and held hands with her. The witness said she remembered a conversation about the "beginning of 1997" when S.M. said she was "worried about the case" and Billy said he "would help to put him away".
[9]In cross-examination this witness said she lived on the ground floor, another witness Michelle Cattrell lived "two up" and Michelle's cousin Katie Miller lived "three up" at the same address. She said S.M. (the first complainer) was friendly with Katie. She said S.M. stayed with Katie and she had seen S.M. a couple of times in the evening in Michelle's house. The witness said that she used to go out with Derek Burke, who smoked hash and was known as "Speedy", for about two years. She said S.M. knew Speedy and this witness said she was told that Speedy was going out with S.M. She said she had nothing to do with S.M. leaving Tollcross "because we approached her and accused her of seeing Speedy". She said she was not going out with Speedy when S.M. left Tollcross.
[10]This witness agreed she had signed an affidavit in January 1999. She said her friend Helen Croly had approached her "because she knew about S.M.". The witness said Helen Croly just asked her to say that she knew S.M. and Billy. The witness also said she had known the appellant for about two months and first met him in Helen Croly's house and had seen him there "four or five times". She said the group had met every weekend on the benches outside Tollcross Park. In cross-examination the witness said she went out with Speedy in 1994 for about two years. She agreed she had given a statement to two women police officers after she had given her affidavit. Her father was there at the time. She was referred to what was recorded in the statement to the effect that
"S.M. wasn't part of my group of friends...I don't know if he (Billy) went with her. Once, I think about four years ago, before I left school in 1995 definitely, I overheard S.M. and Billy talking...I remember S.M. went out with Derek Burke, then they fell out, it was all about the same time as the talk about the court case...A couple of months ago Helen Croly told me about Billy being on the jury and S.M. being a witness. She said he shouldn't have been. I think she knew the guy that was up in court. Frank something or other. I have never met this guy Frank".
[11]When it was put to this witness that, for example, she had told the police that S.M. was not part of her group of friends and did not know if he (Billy) went with her (S.M.) whereas she had just said the opposite in her evidence, the witness became upset and said she was nervous at the time she gave her police statement, her father was present and that she was not thinking about the questions and just answering them. She said she did not mean to say she overhead the conversation between Billy and S.M. before she left school. She then said
"Helen Croly came to me. She was the one who set the whole thing in motion. Helen told me that I would have to give an affidavit and said it was about a court case. All I knew was it was about S.M. and Billy."
[12]Having heard and seen this witness we were not at all impressed by her demeanour in the witness box. When cross-examined about her statement to the police she sought refuge by saying she did not remember what she said to them and was upset at the time. We do not consider she was a reliable witness and her evidence on crucial matters would require strong support from other witnesses before we could accept it.
[13]The third witness was SIOBHANN MCGUIRE (18) whose affidavit, dated 6 January 1999, was the third and last affidavit lodged with the second ground of appeal. Her police statement, dated 22 January 1999, was also available to us. This witness said she was a younger member of the group of young people who included S.M. and Billy. The witness said she was a member of the group in 1996 and the summer of 1997. S.M. and Billy were "an item" and secretive but "I was nosy and I heard them mentioning a court case and sniggering and laughing at that time". In cross-examination she said she knew Billy Lanigan because they had been at school together. The time she was talking about was about 1996 or the summer 1997. She would be about 151/2 years old at the time and she was 15 in January 1996, so it could have been the summer of 1996.
[14]The witness admitted she had been a heroin addict since about the beginning of 1998. She spent about £20 a day on heroin. At the time she gave her affidavit and her police statement in January 1999 she was coming off drugs. In her affidavit this witness stated that she "recalled vaguely some considerable time ago S.M. talking about a court case while we were sitting on the benches at Tollcross Road at the time". In her police statement she said that when she got to the lawyer's office they were asking me things about where I hung about and that. She said "I can't mind what else the lawyer was asking me because I was too full of it with heroin. I think I probably signed something but I don't know what it was". In evidence in chief the witness said when she spoke to the police she was under pressure because her Mum was there and she had just started attending a rehabilitation clinic on 18 January 1999 for treatment of her heroin addiction. She said she was briefly answering the questions but not "to her full ability". In cross-examination she said that when she was giving her affidavit she cannot "mind what the lawyer was asking me. I was full of heroin". On being asked by the court whether, as stated at the top of the second page of her affidavit, she stayed once overnight at Michelle Cattrell's house when S.M. and Billy Lanigan were there, she said that was untrue as her Mum never allowed her to stay out overnight.
[15]Siobhann McGuire was a most unsatisfactory witness, as was her evidence as recorded in her affidavit which contains no suggestion that she was a heroin addict who was "full of heroin" at the time she gave it. She said in evidence that she went to sign an affidavit because "Helen Croly asked me to give a statement". She said in the witness box that what she said in her affidavit was true but when questioned on it had to agree that it was untrue when she deponed that she had stayed overnight at Michelle's house. In the circumstances the evidence of this witness cannot be given any credit unless it is supported by the evidence of other much more reliable witnesses.
[16]The fourth witness was BRIAN SMITH (22) who lived in Tollcross Road and said he was a member of the group of young people who hung about the Tollcross Road benches at the phone boxes. He said he knew Billy Lanigan who came from Shettleston and who was "very close" to S.M. and "nipped" or kissed her. The witness said he was not "tuned in" to their conversations but they were laughing and joking together when he heard the word "court" and the name "Frank Feely" mentioned. He said he knew Frank Feely who had brought the witnesses to court in a mini bus. He did hear Billy say to S.M. "We've got him this time".
[17]In cross-examination he said he was talking about a period of about nine weeks in the summer of 1997 when Billy and S.M. were together. He was shown his affidavit, dated 4 February 1997, and asked about the circumstances in which it was taken. He said that Helen Croly had made an appointment with a solicitor for him to give the affidavit. He continued
"She came with me for company. She went into the office and waited for me...She was wanting me to say whether S.M. and Billy were jumping about together at weekends. I just knew it was about a court case".
He said that in October 1996 he had been sentenced to detention for a breach of a two year probation order and got out in April 1997 from the Young Offenders Institution. In February 1997 he was a drug addict and in the summer of 1997 he was taking methadone. The witness was shown his affidavit, where on the second page, he deponed that whilst Lanigan and S.M. were talking about "planning to put someone away" he did not know about the case and he did not know who they were talking about, and yet in evidence he had said that the name "Frank Feely" was mentioned. In reply he said they often spoke about court cases and that name stuck in his mind and he was sure he had mentioned it in his affidavit.
[18]This witness gave his evidence in quite a confident manner until his attention was drawn to the above statement in his affidavit. Not only had he not mentioned the name of Frank Feely but he had gone so far as to say he did not know who was being talked about. He also said at the time he was taking methadone. We were therefore left with a poor impression of this witness and his evidence will also require to be examined in due course against the background of the whole other evidence.
[19]The fifth witness was PATRICIA CARROLL (22) who was employed as a data processor with a tyre company and had lived all her life in Tollcross. An affidavit by this witness, dated 15 January 1999, and her police statement, dated 25 January 1999, were also available to the court.
[20]This witness said S.M. and Billy Lanigan were in the group of which she was a member. They all went to drink at the benches and sometimes they went to Michelle Cattrell's aunt's house (this was where Michelle's cousin Katie lived "three up"). The witness said S.M. "got off" with Billy Lanigan when he came at weekends. She was twice in Michelle's aunt's house and when she left at midnight S.M. and Lanigan were still there. She said "Everyone knew they were an item and we used to slag her because he had acne". Two or three times they spoke about a court case and when we asked they said "Don't worry we'll get him done". The witness said she did not know who they were talking about. She also said that Helen Croly had asked her to go to Mr. Carmichael's (the appellant's solicitor) office to give an affidavit.
[21]In cross-examination the witness said she was 18 or 19 years old when this group met in Tollcross. She was drinking then and after that she started on drugs and she has now been on a methadone programme for nearly a year. She was approached by Helen Croly and telephoned Mr. Carmichael to make an appointment to give an affidavit. Two female police officers later came to see her and they were fine and she was not worried about speaking to them. Helen Croly had said there was a court case and wanted "us" to help out. The witness said she first met the appellant in Helen's house after she had given the police statement. He had come to Helen's house a couple of times when the witness was there and Helen told her that he was a friend whom she wanted to help. The witness also said she got a lift through from Glasgow that day to court in the appellant's mini bus after being picked up in Tollcross. She agreed, when shown the second page of her police statement, that at first she had told Helen Croly she would not go to a solicitor but explained she changed her mind when Helen said it was to help one of her friends.
[22]There was no substantial conflict between what this witness said in evidence and what she had said in her affidavit and police statements. At the end of her evidence and at this stage we were quite impressed by this witness.
[23]The sixth witness was ROBERT MILNE (17). There was a statement, apparently written by the appellant's solicitor, which bore to be taken on 20 March 1999 and to be signed by a "Robert Milne", which was made available to the court. The author of the statement bore to be aged 20 years and unemployed. This witness said that he knew Angela Cairns and also Michelle Cattrell well enough to say hello to. He said in evidence he had never been to a solicitor's office to give and sign a statement and knew nothing about the document produced. He was aged 17 years, employed as a warehouse operator and lived in Tollcross. He said he used to go out with D.M. (the third complainer), and that the signature at the foot of the document was nothing like his signature.
[24]This was a straightforward witness who was not cross examined. We will refer again to this surprising document in due course.
[25]The seventh witness was DEREK BURKE (27). There was a statement, dated 3 March 1999, written by the appellant's solicitor and signed by the witness made available to the court. The witness said he knew S.M. and used to go out with her in the summer of 1997. They used to go around with Angela Cairns and Michelle Cattrell. He said he met Billy Lanigan and heard S.M. and Billy say "We've got the person now". This was said on the same night in 1997. The witness said he was going out with S.M. at the time and this was said in Michelle Cattrell's house and he remembered what was said because it was something unusual. This was the only occasion he saw Mr. Lanigan. He was a regular member of the group and associated with the members every day and every night for eight weeks or so.
[26]In cross-examination he said he was asked to see Mr. Carmichael in January 1999. He knew Helen Croly and said he saw the appellant occasionally in Helen's house. He then said Helen asked him to see Mr. Carmichael because he knew S.M. and this was probably on 3 March 1999. He had gone with Helen to see the solicitor and she had waited for him whilst he gave it.
[27]This witness was then shown the statement and agreed it was signed by him with his signature. It appeared to be in the same handwriting as that of the document produced in respect of Robert Milne already referred to. He was then shown his statement which stated that he remembered the "Bill" fellow vaguely and said he was never in the company of this guy Bill and S.M. The statement also said that the only reference he heard S.M. make about a court case was when she said a guy was going "to go down". When the witness was cross-examined about the differences between what was recorded in the statement and what he had said in evidence, he became very confused and sought refuge in an alleged loss of memory.
[28]When asked about his friendship with S.M. the witness said it finished because he was too old for her. He was in jail twice in 1997 for stealing cars. He had been released on 3 April 1997 and was back again in jail on 18 September 1997. He said he went out with S.M. for about four weeks in July or August and it had finished by 18 September 1997. He said he had gone out with Angela Cairns for about two years from 1995 to 1997 and she had finished with him when he went to prison in April 1997. When he came out of prison in July 1997 he took up with S.M.
[29]We were not at all impressed with this witness, who was a self-confessed car thief and most confused at times when he gave evidence. We placed little reliance on the evidence of this witness where it conflicts with other evidence in the case.
[30]The eighth and last witness for the appellant was MICHELLE CATTRELL (22). She said she lived with her mother in Tollcross which she left in about August 1998. She said she got to know S.M. through her little cousin Katie Miller. She said she did not get on with S.M. because she had got her cousin Katie, who stayed upstairs, into a lot of trouble. She then said "She left Tollcross and then went out with Billy Lanigan and I saw her at my mother's house...". She said she could not remember when it was that S.M. stopped coming to Tollcross and then came back again. The witness said that Billy was not in her aunt's house but that just she and her cousin Katie and her brother's friends were there.
[31]The witness completed her evidence in chief by saying she was within the group which hung about Tollcross. Billy Lanigan was there and he was going to the benches with S.M. in the summer of 1997.
[32]In cross-examination she said S.M. at one time stopped coming to Tollcross because she had "a falling out". She said she liked S.M. at first but when S.M. got her little cousin Katie into trouble she stopped liking S.M. She then said "S. might say she stopped going to Tollcross because we accused her of seeing Speedy (David Burke)". She said S.M. went out with Lanigan in the summer of 1997. She then said "I moved into my own flat at Easterhill Place in Christmas 1996. I resided with my boyfriend and then we moved to the Gorbals".
[33]The witness said that about February 1999 Helen Croly asked her to go to see Mr. Carmichael. She said she saw Helen a lot and she once saw Frank Feely in 1999. She explained that what Helen had asked her to do was concerned with the court case. She said they all knew S.M. and Bill and that they were a couple and that she was not lying about that. Finally, she said that the trouble with her cousin was that Katie started drinking, taking LSD and staying out until 4.00 o'clock in the morning.
[34]There was no affidavit or statement from this witness available to the court. At the end of this witness's evidence, as in the case of Patricia Carroll, we were quite impressed by the manner in which she gave her evidence. She was then the last witness for the appellant and the last witness to give evidence on the afternoon of Friday 8 October 1999. The court then adjourned to a date to be afterwards fixed to hear the evidence of the respondent's witnesses.
[35]When the court sat again, on Tuesday 6 February 2000, we heard the evidence of S.M. and Billy Lanigan, who were the only witnesses for the respondent.
[36]The first witness S.M. (20) said she had left Scotland to live in England a few months after the appellant's trial was heard in August 1997. She said she did not pay much attention to the jury when giving evidence but kept her eyes in front of her.
[37]She had lived with her Granny in Dennistoun which is about ten minutes away from Tollcross where she had been a number of times. When the Sheriff Court referral case was heard (we were later informed that this was a case connected with the appellant's alleged abuse of this witness and the two other complainers, and was heard on 16, 17 and 18 December 1996 when all three complainers gave evidence) she was staying at her Gran's in Dennistoun and with her Mum in Haghill which was right beside Dennistoun.
[38]When she went to Tollcross with her cousin D.M. (the third complainer) she became particularly friendly with Katie Miller who knew D.M. and her boyfriend who was called Matthew Sherry. She also got to know Robert Milne, Katie's cousin Michelle Cattrell and others. She said she had stopped going to Tollcross before the Sheriff Court hearing (December 1996).
[39]The witness said she stayed overnight once at Katie's house. On another occasion she was babysitting for Michelle Cattrell but usually she was with the others in Katie's house or walking about the streets. She had never been to the park. She knew David Burke who was called "Speedy" because he "was out of his head with drugs". He was known as a car thief as well and she used to speak to him in the street but they were not great friends. She knew Angela Cairns who was then his girlfriend and was going out with him.
[40]The witness said the first time she had seen Billy Lanigan was up at this court (when she had attended to give evidence in October 1999). She did not recognise him at all. She said "I can assure you it is a lie that we were boyfriend and girlfriend".
[41]She said the only boyfriend she had in Tollcross was Matthew Sherry. She said she was chased out of Tollcross by a gang of about ten girls, including Michelle Cattrell and Angela Cairns. She said she was accused of seeing Speedy behind Angela's back. The witness said she had been walking down the street looking for her friend Katie and met a group of girls and they said "We know about you and Speedy". Speedy had asked her out. Michelle had also called her names because she fancied Matthew Sherry who was the witness's boyfriend.
[42]The witness said that when she was at the High Court on Glasgow Green she did not come into contact with anyone on the jury and she was with her Mum and cousins. She had never heard of Helen Croly. She had once been in Michelle' house to babysit for Michelle's wee boy for about an hour when Michelle was at the pub but she had never lodged in Michelle's house.
[43]In cross-examination she said she stopped going to Tollcross some months before she gave evidence at the children's hearing (December 1996). Katie Miller had turned against her with the others because she had been speaking to Burke. When she did go to Tollcross drink was always consumed indoors and not outside. Katie was going out at the time with Andrew Bell, who was a friend of Speedy, and Speedy would "stop us in the street and walk about with me. It was during the summer". The witness thought she was in third or fourth form at the school at the time and was 14 or 15 years old.
[44]The witness said she had been sitting in the witness room on the previous occasion (in October 1999) and a lady court person came in and said "Billy Lanigan" and she saw him. His Dad was there with him and he was under police escort. She said the other witnesses were not telling the truth when they said that Billy Lanigan and she were having an affair. She indicated she had not known Billy Lanigan before she heard his name called in the witness room. In re-examination it was put to her that the Sheriff Court referral was on 16, 17 and 18 December 1996. She said it was months after she had left Tollcross. She agreed it must have been the summer of 1996 when she was hanging about Tollcross.
[45]This witness had to give her evidence sitting on a chair in the well of the court as she was then in the final stages of pregnancy. She gave her evidence in a clear, straightforward manner and was a very credible witness. We were very impressed by the evidence of this witness. We will, of course, test it against the other evidence available in the case.
[46]The second and last witness for the respondent was BILLY LANIGAN (21). He explained that he was called to give jury service at the time of the trial in this case in August 1997. There were a few young jurors in the case. They were given directions about requiring to disclose if they knew anyone in the case and he did not know anyone. He had been in the witness room with his father and a police escort at the previous hearing of the appeal in October 1999. The reason was that just before he was going to give evidence on that occasion his mother had told him that a girl had called twice at their house. On the second occasion this girl had conveyed a threat as to what might happen to him if he did not change his evidence. He had telephoned the police straight away and that was why his father and a police escort accompanied him to the Appeal Court in Edinburgh. On the second day, at his father's request, the police were there with him.
[47]The witness said he knew Joseph Croly in the Army Cadet Force in Shettleston. At that time Joseph was in for about four to six months whereas he (the witness) was a Sergeant Major in for five years. Joseph had left the unit shortly after he (the witness) was called for jury service. He was told not to discuss the case with anybody and he did not meet and tell Joseph he was on a jury. He was now doing a computer course at college.
[48]The witness explained that Tollcross was about a mile away from Shettleston. He was at the Cadets for about four nights a week and at weekends. He knew there was a big park in Tollcross. He never spent time hanging about with people from Tollcross although he knew Army Cadets from that area. He knew of Michelle Cattrell from what he had heard of her at school. He knew her to see but she was not the kind of person he would hang about with. He had had no contact with S.M. or her family and first saw her when she walked into court to give evidence at the trial of the appellant. He could have met Joseph Croly in the street when he was on the jury. In cross-examination he said that he had heard from a pal of Joseph in the Cadets that Joseph had gone to America before October 1999. He might have met Joseph in the street in August 1997 when he was on the jury but he would only have said "Hello". One morning at the jury trial he was 20 minutes late in arriving but he was not reprimanded and nobody spoke to him.
[49]The witness said he had heard of Helen Croly. She knew friends of his and he knew her to see. Michelle Cattrell was not the kind of person he would want to see. Her friends were all drug addicts and "smackheads" and from looking at them he would not want to socialise with them. It is nonsense to say he was with S.M. "I am denying that because that is the case".
[50]Having heard this witness give evidence we were also very impressed with his demeanour in the witness box and the manner in which he gave that evidence. He was clearly a person who devoted a great deal of his time to serving as a Sergeant Major in the Army Cadet Service and would be unlikely to associate with persons whom he considered undesirable. However, once again, we will require to test his evidence against the rest of the evidence given in the case.
[51]After the last witness had given evidence we were addressed by counsel for both the appellant and the respondent on that and the following day, Wednesday 7 February 2000. Counsel for the appellant accepted that the onus was on the appellant to satisfy the court on the balance of probabilities that the second ground of appeal was established. He submitted that on the evidence it was established that a juror and the first complainer had known each other for some time and were boyfriend and girlfriend at the time of the jury trial. It was also established that during the course of the jury trial a conversation took place between them when words were exchanged to the effect that the appellant would be convicted irrespective of the evidence. The appellant's witnesses should be accepted on material matters. They had no compelling reason to perjure themselves. There was no evidence that there was a conspiracy to invent a false defence for the benefit of the appellant.
[52]The Advocate depute in reply said she accepted the onus was on the appellant to establish his ground of appeal and that he had to establish it on the balance of probabilities. Taking a broad view of the evidence she said there were a number of aspects which caused concern. The first matter was that the evidence led on behalf of the appellant bore all the hallmarks of an orchestrated campaign. There was the relaying of some witnesses to a solicitor by Helen Croly who then sat and waited for them. The second matter was that many of those who gave evidence for the appellant had a background of drink and drug taking, including methadone. The general lifestyle of some indicated they were not unfamiliar with the courts. The third matter was that there were common words of description and a remarkable conjunction of testimony in the witnesses' recollection of what Billy and S.M. did say to each other and in what they said they respectively looked like. It was noteworthy that, in spite of what was said, there appears to have been no discussion about the situation by those who say they heard remarks to the effect that these two people intended to get "someone done". The Advocate depute then went through the evidence given by each of the witnesses and commented upon each of them. We have taken these comments into account.
[53]We now have to consider the evidence taken as a whole. We have already indicated that whilst we were not impressed by the evidence of some of the witnesses, we were impressed at first hearing in particular by the evidence of Patricia Carroll and Michelle Cattrell. However, when we compare the evidence of one with the other such evidence is clearly in conflict. In her affidavit Patricia Carroll said
"I was friendly with Michelle Cattrell. She was friendly with S.M. There was another girl with whom we were friendly - Michelle Cattrell and S.M. stayed with her frequently".
In a later paragraph she said Lanigan "stayed a couple of times with Michelle Cattrell and I knew he was definitely friendly with S.M.". In her police statement she said
"I was pally with Michelle Cattrell. She stayed in Braidfauld Street and S.M. used to stay there with her for a few months. S. would be in Michelle's house sometimes when we came back from the ice skating (me and Michelle). Sometimes Bill Lanigan would be there with S. I knew that he sometimes stayed over with S. at Michelle's house. Bill was from Shettleston. I think he went out with S. Sometimes when Bill was over for the weekend he would be talking with S., just the two of them and I heard him saying something about a court case and getting somebody done. I don't know anything about a court case. When I asked them they would always say it was nothing and laugh""
When she gave evidence she named a different house. She said
"I was twice in Michelle's aunt's house (this was where Katie Miller lived, up the stairs from Michelle at Braidfauld Street) and when I left at midnight S. and Lanigan were still there...couple of times I heard them talking about the court case and when we asked they said 'Don't worry we'll get him done...'".
This conversation was said by her to be in the summer about two years ago.
[54]When Michelle Cattrell came to give evidence she said she had moved into her own flat at Easterhill Place in about Christmas 1996. Earlier in her evidence she said she had left her mother's house in about August 1998, which was completely contradictory. In retrospect it is interesting to note that in the penultimate paragraph of her police statement, Siobhann McGuire stated "I know a girl called Michelle Cattrell, she used to stay at 50 Easterhill Place but I don't know where she's staying now. I haven't seen her in years".
[55]In evidence Michelle Cattrell said that "Billy was not in my aunt's house (where Katie Miller lived). Just me and Katie and my brother's friends but not Billy Lanigan". Michelle's evidence before us did not support the evidence of Patricia Carroll in court that S.M. and Lanigan stayed in Katie Miller's house together after midnight. Neither did it support Patricia's statements in her affidavit and police statement that S.M. stayed in Michelle's house frequently, or for a few months or a couple of times in the summer of 1997. There was thus a dispute between Patricia and Michelle. In view of the credible evidence of S.M. and Lanigan we therefore accept that our original impression of Patricia and Michelle as witnesses was wrong and we now conclude that they were not reliable witnesses who were worthy of credit.
[56]Once S.M's evidence became available a very different scenario emerged. She said that although she did go to the Tollcross area, and met many of the appellant's witnesses, she fell out with them after she had been accosted in the street by a number of the female witnesses and others when she was accused of seeing Angela Cairns' boyfriend "Speedy" (Derek Burke) behind Angela's back. S.M. said she never returned to Tollcross after this incident which had occurred some months before the Sheriff Court hearing (December 1996) at which she had given evidence. We believed her on this matter. It is supported, of course, by Billy Lanigan when he gave evidence to the effect that he did not know and never saw S.M. in Tollcross. It is also supported to some extent by the evidence of Michelle who said that she had left her mother's house at Christmas 1996, which directly contradicts some of the evidence given by Patricia Carroll. Further support is given by Siobhann McGuire who said that she was a young member of the group and that at the time she was talking about when S.M. and Billy were in the group it could have been the summer of 1996, as she was 151/2 years old at the time and had her 15th birthday in January 1996.
[57]It would thus appear that what has happened in this case is that S.M. was known to most of the appellant's witnesses who saw her in Tollcross before she had a confrontation with a number of them in the street in 1996. S.M. had then left Tollcross never to return to associate with them. However, a number of these witnesses then invented the story that S.M. did return to Tollcross in the summer of 1997 and then went on to invent a further affair which she was alleged to have had with Billy Lanigan at about that time in Tollcross.
[58]Whilst a number of these witnesses spoke to hearing an alleged conversation between S.M. and Billy in Tollcross in August 1997, about the time of the appellant's trial, it is noteworthy that nearly all the witnesses who said they heard them talking "secretively" and those who listened only managed to pick out words to the effect that S.M. was "not to worry" and someone will "get done" or "put away". That was the repeated version of the conversation and it is surprising, as pointed out by the Advocate depute in her submissions to us, that these two alleged conspirators would make such remarks in public. It was also surprising that, if they did, none of those present asked what they were talking about as a matter of natural curiosity, especially as at least one or two of them appear to have been familiar with court cases. Thus, even standing alone, this evidence given by the appellant's witnesses sounds improbable. Having heard the evidence of S.M. and Billy, who deny it ever occurred, and whom we believe, we are satisfied on the whole evidence that in some way the appellant's witnesses have been encouraged to invent such an alleged conspiracy between a juror and a complainer taking place during the appellant's jury trial.
[59]On the whole matter it would appear that the evidence in respect of this second ground of appeal has been orchestrated and arranged, as suggested by the Advocate depute in her submissions to us. That view may receive some support from the remarkable fact that a written statement, bearing to be signed by a "Robert Milne" of 5 Porter Street, Tollcross, Glasgow on 20 March 1999, was before us. When Robert Milne gave evidence he said he saw the procurator fiscal twice and the second time he was shown this statement in his name. He said it was not he who gave it or signed it. It was never explained how this document came to be prepared before it was made available to the court. It is possible that one or more of the witnesses who gave affidavits or statements did not expect that they might be required to give evidence in support of these documents in court. Nonetheless even the existence of that possibility would not provide a full explanation for the appearance of this document in the appeal before us.
[60]The juror, Billy Lanigan, undoubtedly served on the jury and we accept his evidence that he was a conscientious member who obeyed the judge's instructions not to discuss the case. In his Report to us the trial judge tells us that it is his unalterable practice to warn the jury at the start of a case not to discuss the case with anyone outside of the jury room, not to allow anyone to discuss the case with them and only to talk about the case with the other jurors and in the jury room. The judge said he always repeated this warning at the end of each day's proceedings and he was certain that he did so during the currency of this trial. When giving evidence before us Billy Lanigan said he remembered the judge's directions and obeyed them and also did not know anyone concerned with the case. He said that the judge gave these directions before the trial began and every day. He said he did not speak to anyone who was not a juror about the case during the trial. We see no reason to doubt the evidence of Billy Lanigan on this matter. We heard no credible evidence in the hearing before us to persuade us otherwise.
[61]It may be that while he was serving on the jury Billy Lanigan did meet Joseph Croly in the street. We note that in Joseph Croly's evidence he said that when about two months later the matter came up in discussion with his sister Helen Croly he said "I think my sister introduced the topic of Mr. Lanigan" and this remark then prompted him to say he had met Lanigan in the street who told him he was on a jury. The fact that Helen Croly raised the topic of Mr. Lanigan could indicate that she already knew that Lanigan was on the jury. In any event affidavits were taken thereafter from Helen Croly herself, Angela Cairns and Siobhann McGuire on 5 and 6 January 1999. These three affidavits were attached to the additional and second ground of appeal which the court allowed to be received on 7 January 1999. Helen Croly did not give evidence before us in support of her affidavit but, as already recorded in this Opinion, she frequently featured in the evidence of some of the witnesses for the appellant as they explained how she had asked them to give affidavits to the appellant's solicitor and on occasion accompanied one or two of them to the solicitor's office. Some of the witnesses also said they had seen the appellant in Helen Croly's house when they were visiting her. However, in the absence of Helen Croly as a witness, we are unable to comment further on what direct part, if any, she played in the preparation or presentation of this second ground of appeal.
[62]After consideration of all the evidence relating to the second ground of appeal we have no hesitation in accepting that S.M. and Billy Lanigan were both reliable and credible witnesses. We are satisfied that their evidence should be preferred to that of the eight witnesses called in respect of the appellant for the reasons already given by us. Accordingly, the second ground of appeal in this case is refused.