SCTSPRINT3

REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION IN THE CASES OF WILLIAM GRAY+JAMES BERNARD O'ROURKE v. HER MAJESTY'S ADVOCATE


Submitted: 23 December 2004

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Eassie

Appeal Nos: XC305/03

XC306/03

OPINION OF THE LORD JUSTICE CLERK

In Referral by

THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the cases of

WILLIAM GRAY and JAMES BERNARD O'ROURKE

Appellants;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the appellant Gray: Jackson QC, Shead; Burnett Christie

For the appellant O'Rourke: Allan, Blessing; Drummond Miller

For the Crown: Mitchell AD; Crown Agent

23 December 2004

[1]I agree with Lord Eassie's conclusions. The Commission has investigated this case thoroughly and in my view it was right to refer it to the court. The Commission has interviewed the 14 surviving jurors and other material witnesses. We have heard evidence from seven of the jurors and three other witnesses. We have also considered the statements and affidavits submitted by the Commission. We know much more about the background to this trial than the appeal court did when it considered the appeals against conviction (Gray v HM Adv, 1994 SCCR 225).

[2]I recognise, of course, that the Commission and those representing the appellants, and consequently the court itself, have been constrained in the pursuit of the facts by section 8 of the Contempt of Court Act 1981 (cf Scottish Criminal Cases Review Commission, Petrs, 2001 SCCR 775). That section was designed to preserve the confidentiality of a jury's deliberations; but it can have the effect of inhibiting the investigation of a potential miscarriage of justice in a case of this kind. I am satisfied however that in this case we have sufficient information before us to enable us to reach reliable conclusions on the two issues that the Commission has raised.

[3]The appeal court was not satisfied that the evidence placed before it regarding the alleged associations of two female jurors with James Donohoe was sufficiently substantial, convincing and trustworthy to warrant an enquiry; and that it was not suggested that any of the jurors were influenced by the fact that one of their number (sic) had an association with Donohoe (ibid, at p 235A-D). It is now established, in my view, that after he was acquitted, but while the trial was continuing against the remaining accused, James Donohoe had sexual relationships with both juror X and juror Y. I need not go into the details. The advocate depute accepts that that is the only appropriate conclusion in relation to juror X and is in all probability the appropriate conclusion in relation to juror Y.

[4]If the trial judge had learned of these facts, he would either have discharged both jurors or deserted the case pro loco et tempore. Discharging the jurors would have been an obvious step; but I think that the trial judge would probably have concluded that deserting the case was the safe course.

[5]Counsel for the appellants submitted that since one or other of these outcomes would have been inevitable, that in itself demonstrated that there had been a miscarriage of justice or, at any rate, that the occurrence of a miscarriage of justice was a serious possibility.

[6]I do not accept this submission. In the course of a trial circumstances may arise which, though justifying the discharge of a juror or the desertion of the diet, would not necessarily be held to constitute a miscarriage of justice if they came to light after a conviction (cf Russell v HM Adv, 1991 SCCR 798). The discharging of a juror, or the desertion of the diet, by the trial judge may be a wise precaution if he has reason to fear that the integrity of the trial may have been compromised; but to take that course does not necessarily imply that there has been a miscarriage of justice.

[7]In my view, there was no miscarriage of justice in relation to this aspect of the trial, at any rate so far as these appellants are concerned. The Crown led a corroborated case against both of them that amply entitled the jury to return convictions of murder. As the appeal court held, there was a rational basis for the jury's discriminating verdicts in respect of the Donohoes (Gray v HM Adv, supra, at p 236B). Therefore at best for these appellants one can say only that it is a possibility that the lesser verdicts returned in respect of the Donohoes were attributable to James Donohoe's sexual interventions. If we assume in the appellants' favour that James Donohoe by these means created a bias in the minds of juror X and juror Y, and perhaps of other jurors indirectly, that bias must have been a bias in favour of the Donohoes. In this respect this case is distinguishable from McTeer v HM Adv (2003 SCCR 282) on which counsel for the appellants relied. But if James Donohoe did create such a bias, that does not imply that he thereby created a bias against the present appellants. The Donohoes' defences did not involve their incriminating either of the appellants. There is simply no evidence before the court, either in the Commission's reference or in the oral evidence that we have heard, to suggest that Donohoe's relationships with the female jurors caused a miscarriage of justice in respect of these appellants.

[8]As to juror Z's visit to the locus, the evidence takes us some way forward from the facts that were known at the hearing of the appeal. The appeal court decided that it had no reason to conclude that there was any impropriety in that visit (Gray v HM Adv, supra, at p 234A-E). It is now clear that juror Z discovered nothing from his visit that was not brought out at the trial. On the contrary, according to his own uncontradicted evidence, the only conclusion that he drew from his visit was that the locus was smaller than it appeared to be in the photographs produced in court. The evidence therefore confirms that there is nothing in this ground of appeal.

[9]In these circumstances it is unnecessary for us to consider the reasoning of the court in Aitken v Wood (1921 JC 84) and in Brims v MacDonald (1994 SLT 922), and in particular the suggestion made in those cases that, by reason of improper evidence-gathering by the court, part of the trial took place outwith the presence of the accused.

[10]I propose to your Lordships that we should hold that neither of these convictions should be disturbed and that we should refuse the grounds of appeal.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Eassie

Appeal Nos: XC305/03

XC306/03

OPINION OF LORD OSBORNE

In Referral by

THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the cases of

WILLIAM GRAY and JAMES BERNARD O'ROURKE

Appellants;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the appellant Gray: Jackson QC, Shead; Burnett Christie

For the appellant O'Rourke: Allan, Blessing; Drummond Miller

For the Crown: Mitchell AD; Crown Agent

23 December 2004

[11]I agree with the Opinion of your Lordship in the chair and with Lord Eassie's conclusions and have nothing to add.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Eassie

Appeal Nos: XC305/03

XC306/03

OPINION OF LORD EASSIE

in

REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the cases of

WILLIAM GRAY and JAMES BERNARD O'ROURKE

Appellants;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellants: Jackson, Q.C., Shead; Burnett Christie (Gray):

Allan; Drummond Miller (O'Rourke)

Respondent: G. Mitchell, A.D.; Crown Agent

23 December 2004

Introductory

[12]In 1992 the appellants, along with eight other men, went to trial at a sitting of the High Court of Justiciary in Glasgow on an indictment containing 31 charges, almost all of which were charges involving violence or the threat of violence. The first appellant - William Gray - was found guilty of charge 9 (assault to severe injury), charge 26 (assault by the presentation of shotgun) and charge 30, which was the most serious charge on the indictment being a charge of murder, the victim being a Neil Cairney. The second appellant - James Bernard O'Rourke - was also convicted of murder in terms of charge 30. Three other accused were also charged with murder of Neil Cairney. Two of those other accused, Stephen Donohoe and Terence Donohoe, were brothers and were convicted of culpable homicide and sentenced to 12 years imprisonment. The third of the other co-accused on that charge, David Craig Armstrong, was convicted of assault.

[13]Both appellants appealed against conviction and on 28 January 1994 those appeals were refused. The appeals are reported as Gray v HM Advocate (1994 SCCR 225). Among the grounds of appeal advanced on behalf of William Gray was the allegation that on the basis of certain information it appeared that some improprieties on the part of three members of the jury, constituting a miscarriage of justice, had, or might have, occurred. Those improprieties were (i) that a member of the jury had visited the locus of the murder during the course of the trial; and (ii) that during the course of the trial each of two female jurors had formed a relationship with a brother of Stephen and Terence Donohoe namely James Joseph Donohoe, who had been initially included on the indictment as a co-accused (though not on the murder charge) but acquitted at a relatively early stage in the trial when the Crown intimated its acceptance of his plea of not guilty. The other principal ground of appeal advanced in that appeal was, put briefly, that since the prosecution case on the murder charge was that the deceased had died as a result of a concerted attack by the accused who were alleged to form part of a group attacking the deceased with various weapons, the conviction of the present appellants for murder was inconsistent with the verdicts of culpable homicide returned respecting the Donohoe brothers, Stephen and Terence. In his report the trial judge offered a possible explanation for this distinction and the Appeal Court accepted that there was an evidential basis upon which the jury could have been justified in convicting Stephen and Terence Donohoe of culpable homicide rather than murder.

[14]Following the setting up of the Scottish Criminal Cases Review Commission the appellants' case was brought to the attention of that Commission. The Commission, being concerned as to the extent to which they might make enquiry of jurors in light of section 8 of the Contempt of Court Act 1981, sought guidance from this court. That guidance is reported as Scottish Criminal Cases Review Commission, Petitioners (2001 SCCR 775). The Commission thereafter investigated the allegations of impropriety on the part of certain members of the jury by obtaining precognitions from members of the jury, within the limitation of that guidance. In the light of those investigations the Commission resolved to refer the case to the court in terms of section 194B of the Criminal Procedure (Scotland) Act 1995 as amended.

[15]In making that reference the Commission recorded, in paragraph 57 of its statement of reasons, respecting the relationship alleged to have been formed between James Joseph Donohoe and two members of the jury:-

"The Commission is not able to point to any specific prejudice which may have been suffered by the applicant as a result of the association between James Joseph Donohoe and the jurors. The Commission is of the view, however, that that association raises a serious issue about the integrity of the jury which may in itself constitute a miscarriage of justice. In coming to this view the Commission has had regard to the case of Drummond v HM Advocate, 18 December 2002. The Commission is mindful that it has no reason to doubt the credibility or reliability of the evidence led by the Crown at the applicant's trial. Nevertheless, it believes that it is in the interests of justice to refer the applicant's case to the High Court."

[16]As regards the visit by a juror to the locus of the murder the Commission states, in paragraph 59 of its statement of reasons, that while it believes the juror's visit may be regarded as an irregularity the Commission

" ... does not believe that in itself it constituted a miscarriage of justice. Nor does it believe that it may have led to a miscarriage of justice given the weight of evidence and, in particular, clear and precise directions given by the trial judge to decide the case on the basis only of the evidence led at the trial."

[17]Where the Commission decides to refer a case to the court, it is deemed to be an appeal by the convicted person and the grounds of appeal are thereafter framed and argued by counsel for the convicted person (see section 194B of the Criminal Procedure (Scotland) Act 1995). In the present case counsel invoked as grounds of appeal both the alleged impropriety of a juror's having viewed the locus and the alleged relationship between one, or two, of the female members of the jury and the brother of the remaining two Donohoe accused.

[18]Following a procedural hearing the court remitted the case to the present Bench of three judges to hear evidence on these matters.

The evidence led in this appeal

[19]Perhaps not surprisingly, not all of the jurors were available to given evidence. One was known to have died. Others had either moved home and were not traceable, or were unable to attend for medical reasons. In addition to such members of the jury who had been located and cited and were not prevented from attending by reason of a medical condition, counsel for the appellants also tendered as witnesses James Joseph Donohoe; an uncle of the first appellant, namely Ronald Anderson; and Ms Rose McDowall Allan.

[20]Of the principal actors in the alleged improprieties this court was provided with the direct testimony of the juror alleged to have visited the locus, juror Z; the evidence of James Joseph Donohoe; and the evidence of one of the jurors with whom he had an association, namely juror X. The other juror, juror Y, with whom James Joseph Donohoe was alleged to have formed an association, was not traced.

[21]As respects the visit to the locus, the evidence was brief and not in dispute. juror Z explained that he was with a friend in the general area for reasons connected with his employment and, being there, drove into the street in which the murder took place and drove out again. He said in his evidence that he did not find the visit particularly useful but it helped by indicating the scale of the street which was smaller than appeared on the photographs produced at the trial. When juror Z mentioned to his fellow jurors next day that he had made a visit to the street in question at least two of the jurors expressed disapproval and the matter was reported to the trial judge.

[22]The evidence led respecting the allegation of an intimate association between James Joseph Donohoe and two female jurors was more extensive. However, in his submissions following the evidence the Advocate Depute stated that the Crown did not dispute that there had been presented a body of reliable evidence, which the Crown did not challenge, that during the course of the trial there had been a sexual relationship between James Joseph Donohoe and juror X. The Advocate Depute also stated that he accepted that in all probability there had also been a sexual relationship between James Joseph Donohoe and juror Y. In view of this acceptance by the Crown it is possible to deal relatively briefly with the evidence on this branch of the appeal.

[23]First, it may be noted that in his evidence James Joseph Donohoe agreed that he had indeed formed a sexual relationship with the two female jurors but he deponed that the relationships were formed consecutively, firstly with juror Y and thereafter with juror X, only after the conclusion of the trial. According to Mr Donohoe the relationship with juror Y arose following a chance meeting in a shop to which he was delivering goods as part of his work. The relationship lasted for some two or three weeks during which, in addition to going out to public houses, juror Y visited him at his house on a couple of occasions. Mr Donohoe maintained that there was then a gap of a couple of months before he met juror X when effecting a delivery at an industrial estate. Again, the meeting was by chance. juror X asked for his telephone number and later telephoned him, resulting in a meeting for a meal and cinema visit. Thereafter there were a number of meetings, either in a public house or at his home, one of which included an introduction to his mother.

[24]For her part juror X accepted in her evidence that she had had an association with James Joseph Donohoe which involved a sexual relationship. However, she maintained that she did not have any contact with James Joseph Donohoe until a few weeks after the trial when she met him by chance in Pollokshaws. She was in the course of her employment as a carer and was going to visit a client when she saw James Donohoe in a van, doing a delivery. She said in evidence that her opening words of greeting were "How's your mother", although on the account otherwise given she had not met his mother at that stage. She thereafter described a number of meetings in East Kilbride and at Mr Donohoe's home over a relatively brief period of time before the relationship ended.

[25]While there was thus acceptance by juror X that she had had a continuing, but brief, sexual association with James Joseph Donohoe and acceptance by him that he had such a relationship with her and juror Y, the inception of both of which relationships was subsequent to the conclusion of the trial, there was, as the Advocate Depute stated, a substantial body of credible and reliable evidence to the effect that the liaisons between the two female jurors and James Joseph Donohoe were formed during the course of the trial. First, there was the detailed evidence of a juror, AB, who stated in evidence that at the outset of the trial juror X made remarks expressing a degree of sexual attraction to James Joseph Donohoe (then still an accused). During the course of the trial juror X made various statements to her to the effect that she was having an affair with James Joseph Donohoe. On an occasion juror AB was asked to connive in giving a false explanation to juror X's husband as to the circumstance of juror X's overnight absence from home, juror X having spent the night with James Joseph Donohoe. This request was made because the husband of juror X was to collect his wife from court. When the matter subsequently came under investigation by private investigators juror X asked juror AB for silence or discretion in relation to what juror AB knew of the relationship during the trial. Rose McDowall Allan gave evidence that some days before the conclusion of the trial she saw James Joseph Donohoe drive down the road from his house with a blonde girl whom she saw at a later date, very shortly after the verdict, in Mr Donohoe's mother's house when it transpired that, following challenge from the first appellant's wife, the blonde was a member of the jury and a row ensued. Ronald Anderson gave evidence to the effect that he regularly attended during the trial. He knew James Joseph Donohoe and on the Thursday before the verdict he had a conversation with him in the court in which Donohoe stated that he was "shagging" two members of the jury and he indicated the respective females with whom he, Donohoe, exchanged smiles. There is further an affidavit from the juror CD which was sworn before a notary on 3 December 1993. juror CD could not now be traced. The parties to the current appeal agreed that regard might be had to this affidavit. In it juror CD depones inter alia that juror Y mentioned to her on some mornings during the trial that she was seeing James Joseph Donohoe that night and that on one occasion she had met his mother and other members of the Donohoe family. Juror CD had no contact with juror Y after the end of the trial.

[26]For my part I have no difficulty in accepting the invitation of counsel for the appellants to reject the assertion that the associations between Mr Donohoe and the two female jurors were only formed after the conclusion of the trial. I do so having regard to the manner in which both juror X and Mr Donohoe gave evidence; the inconsistencies between their accounts; the inherent improbability that Mr Donohoe should, after the trial, fortuitously and successively meet the two jurors and for a brief time have a sexual relationship; and the body of contrary evidence. In my view the contrary evidence is much to be preferred in terms of its credibility and reliability. As already mentioned, the Advocate Depute stated that he did not dispute that on the evidence the existence of an affair between Mr Donohoe and juror X during the currency of the trial was established and that in all probability Mr Donohoe was carrying on an affair also with juror Y.

Grounds of appeal: (i) Locus visit

[27]Although counsel for the appellants placed the relationship between James Joseph Donohoe and the two female jurors at the forefront of their submissions, they also founded on juror Z's visit to the locus as an irregularity constituting a miscarriage of justice and I find it convenient to deal with this point first.

[28]Under reference to Aitken v Wood 1921 JC 84 and Brims and Others v MacDonald, 1993 SCCR 1061 it was submitted that the locus visit should be seen as meaning either that a juror had taken evidence outwith the presence of the accused; or that he had acquired knowledge outwith the scope of the evidence given in court. A broadly similar submission was advanced in the initial appeal and rejected. Having heard evidence from the juror in question, this Bench has confirmation that the visit to the locus was a visit to a public place, namely a street along which the juror drove; that the visit was not prompted by a desire to test the accuracy of the testimony of any particular witness at the trial; and that no detailed inspection of any particular feature of the locus was carried out. In these circumstances I do not consider that the evidence which has been heard in the current proceedings undermines the hypothesis of fact upon which the appellate decision of 28 January 1994 proceeded. In my view no element has been identified suggesting that that decision, or its reasoning, was unsound. Crimes are commonly committed in public places of which some of the jurors will have direct knowledge from their own personal activities or in places which members of the jury may not avoid in the carrying out of their own personal activities during the course of a trial. It could hardly be objected if the juror's journey for his legitimate private purposes necessarily took him along the street in question. It is difficult to see that the position should be materially different merely because driving through the street in question constituted a diversion. It has also to be borne in mind that the fact that a juror had visited the locus was known to the trial judge who, as it recorded in the opinion delivered on 28 January 1994 (Gray v HM Advocate, supra, at p. 234B-D), made clear to the jury that they required to proceed only on the evidence led in the courtroom. In my view it cannot be said that the visit by the juror to the street in which the murder took place has resulted in any miscarriage of justice and accordingly I consider this ground of appeal to be unsound.

Ground of appeal: (ii) Intimate relationship

[29]The submission for the appellants on this branch of the case was to the effect that the formation of an intimate relationship during the course of the trial proceedings between a relative of two of the appellants' co-accused and a member of the jury (whether with one or two members of the jury matters not) so took away from the right to be tried by an impartial tribunal that the appeal should succeed. It was evident, said counsel for the first appellant, that the Donohoe accused got "a better result" in that they were convicted of culpable homicide rather than murder. So it could be inferred that the two female jurors were likely to be partial in favour of the Donohoes. Had the existence of the relationship come to light during the trial there was little question but that the diet would have been deserted pro loco et tempore - or at the very least that the trial would not have continued with the two jurors in question still on the jury. Under reference to the decision of the House of Lords in the English appeal of R v Mirza ([2004] UKHL 2: [2004] 1 AC 1118), counsel submitted that a distinction was to be drawn between inquiry into a jury's deliberations (which might not be made) and inquiry into extraneous circumstances which might disqualify the juror on grounds of partiality and hence disqualify the jury from being viewed as an impartial tribunal, the latter matter being open to investigation. Were a juror to be a relative of a deceased in a murder trial, that would disqualify him on grounds of partiality. As established in McTeer and Others v HM Advocate (2003 SCCR 282), if one juror were not partial that impartiality flawed the whole decision and the partial juror could not be isolated from the decision on the view that his vote might be disregarded. It was illogical on learning afterwards of facts which would, if known, have led to a potential juror being excluded on grounds of his relationship to the accused to hold that nonetheless the concern did not matter once the verdict had been returned.

[30]The position adopted by the Crown was that the test which this appeal had to meet was that a miscarriage of justice had occurred as respects the present appellants. The Advocate Depute referred to Russell v HM Advocate (1991 SCCR 791, at 795E ff) which he said effectively represented the Crown position. Ultimately the issue was whether an objective observer, supplied with all relevant information, would conclude that the proceedings were unfair. The facts in the present case did not suggest any partiality against these appellants. Indeed, since there was an evidential basis upon which the conviction of the Donohoe brothers for culpable homicide could be justified, it could be said by the objective observer that the proceedings were fair and that any attempt by James Joseph Donohoe to influence the jury had failed. But even if favour had been exercised as respects the two Donohoe brothers, that did not mean that any miscarriage of justice had occurred as respects the present appellants.

[31]In my view it may readily be accepted that if the existence of an intimate relationship between James Joseph Donohoe and either or both of the female jurors in question had come to light in the course of the trial, the presiding judge would either have discharged the jurors or, much more probably, have deserted the diet pro loco et tempore. However, I do not consider that it follows from the fact that such steps would have been taken had the existence of the intimate relationship become known during the trial that the conviction of the present appellants necessarily constitutes a miscarriage of justice. In Russell v HM Advocate the appellant had been convicted of causing the death of a girl, KB, by reckless driving. It subsequently came to light that a member of the jury had known the girl. In the course of his opinion the Lord Justice General (Hope) said, 796B -

"I have no doubt that if the sheriff had been told at the outset that one of jurors knew [KB] he would have excused that juror and made arrangements for another juror to take the place of the one who had been excused. This would have been to avoid any risk of prejudice to the accused and, since the facts were known to the court, so that justice could be seen to be done. But it is an entirely different matter when the point is raised for the first time after the trial is over. The question at that stage must be whether a miscarriage of justice has in fact occurred. It is not to be assumed that this juror's knowledge of [KB] led him to ignore the evidence and the directions in law by the sheriff and, in defiance of the oath, to vote only on the basis of a personal prejudice against the accused."

In the course of his submissions the Advocate Depute referred to Pullar v UK [1996] 22 EHRR 391 which was concerned with a relationship between a member of the jury and the principal prosecution witness. The European Court of Human Rights observed (paragraph 38) that:-

" ... it does not necessarily follow from the fact that a member of the tribunal has some personal knowledge of one of the witnesses in a case that he will be prejudiced in favour of that person's testimony. In each individual case it must be decided whether the familiarity in question is of such a nature and degree as to indicate a lack of impartiality on the part of the tribunal."

On the particular facts of the relationship there in issue the European Court of Human Rights held that an objective observer would not conclude that the juror would favour the particular prosecution witness rather than the defence. Hence there was no objective justification for concluding that the jury had not been impartial.

[32]Viewing matters from that objective standpoint, I do not consider that it can properly be inferred from the existence of an intimate relationship between each of the two female jurors and James Joseph Donohoe that those jurors were biased against the present appellants. At the trial Stephen and Terence Donohoe did not seek to incriminate the appellants and there is no other evident factor which would lead one to think that the two jurors would be hostilely inclined towards these appellants. There is no suggestion that there was other than an ample sufficiency of evidence to warrant conviction for murder. Therefore while it might be inferred that the two female jurors might be favourably inclined towards the two Donohoe accused there is, in my view, no basis for translating that possible partiality in favour of them into a bias or prejudice against the appellants. In my opinion it cannot be said that the irregularity which occurred occasioned a miscarriage of justice as respects these appellants. Accordingly, I consider that these appeals should be refused.