RONALD NEESON v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice Clerk Lord Penrose Lord Johnston | [2005HCJAC64] Appeal No: XM3/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in THE REFERENCE by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the case RONALD NEESON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Party
Respondent: Mitchell, AD; Crown Agent
17 May 2005
Introduction
[1]This is a reference by the Scottish Criminal Cases Review Commission in relation to the conviction of the appellant at Glasgow High Court on 17 March 1983. The charges to which this reference relates were in the following terms.
"(4) On 7 October 1982 you WILLIAM PORTER ELLIOT, ALEXANDER BELL HOWAT and RONALD NEESON did enter the flat at 2 up (right) 30 Clouston Street, Glasgow with faces masked and there
- assault Avril Campbell or McGill or Sutherland or Rado ... push her and repeatedly strike her on the head with a wooden baton or similar instrument to her injury;
- assault Geoffrey James McLean ... and repeatedly strike him on the head, arms and body with a wooden baton or similar instrument to his injury; and
- assault Robert Kane ... knock him to the ground; repeatedly strike him on the head with a wooden baton or similar instrument and repeatedly stab him on the head, body and legs with a knife or similar instrument and you did murder him, and you WILLIAM PORTER ELLIOT did previously evince malice and ill will towards said Robert Kane."
The appellant and William Elliot were convicted on all three heads. Alexander Howat was acquitted.
The evidence against the appellant
[2]The essential evidence was that on the night of the murder two witnesses, Gerald Sharpe and Colin Halpin, were standing in Kelbourne Street, Glasgow. A car drew up. They saw three men get out and walk up Sanda Street towards Clouston Street. At about that time the witnesses James McEwan, David Reid and James Gregg were standing outside the close door at 30 Clouston Street. They saw three men enter the close. It may be inferred that these were the same three men. Two of them had their heads covered. The third was wearing dark glasses. The deceased's girlfriend, Avril Rado, answered the door. They told her that they had heroin for the deceased. She let them in. Two of them, with masks on their faces, attacked the deceased with a baton and a knife. They then attacked Avril Rado and Geoffrey McLean with a baton. One of the three bystanders heard the sound of screaming. Soon after, all three saw the same men emerge from the close and go into Sanda Street. After that, one of the bystanders heard the sound of a car being started. Meanwhile, Gerald Sharpe, who was still in Kelbourne Street, saw the three men whom he had seen earlier return to their car and drive off at speed.
[3]John Elliot, the brother of the co-accused William Elliot, said that he had been in the company of the appellant four days after the murder. In the course of the conversation the appellant described the events in the flat in circumstantial detail. He admitted that he had stabbed the deceased twice in the "backside" and said that in the course of the attack two other people in the flat had been "battered." He said that the appellant told him that he was expecting a woman named Fiona, now known to be Fiona Gallagher, to provide him with an alibi for the night of the murder. The defence suggested that John Elliot gave false evidence in return for immunity from prosecution on certain charges, including drugs and firearms charges.
[4]Neither Avril Rado nor Geoffrey McLean identified the appellant as one of the assailants. The Crown relied on the identification evidence of Gerald Sharpe. In court he said that he could not identify the appellant as one of the men whom he had seen arriving at and fleeing from the locus; but he admitted that he had identified one of the men at an identification parade. In admitting this, he added " ... but I wasn't sure that it was the same man". The Crown then led evidence of the identification of the appellant by Gerald Sharpe at the identification parade.
[5]The appellant and William Elliot each lodged a special defence of alibi to the effect that at the relevant time they were at a hotel in Glasgow. The appellant did not give evidence and no evidence was led in support of his alibi.
The appeal
[6]The appellant appealed against conviction on the ground of insufficiency of evidence, and in particular on the ground that there was no evidence of identification. The appeal was refused on the basis of the evidential principle established in Muldoon v Herron (1970 JC 30; cf Neeson v HM Adv, 1984 SCCR 72).
The petition to the Secretary of State
[7]In 1995 the appellant petitioned the Secretary of State for Scotland alleging that there had been a miscarriage of justice. He said that he now knew of three people, who had not given evidence at the trial, who had overhead John Elliot say before the trial that he had "fitted up" the appellant, that his statements to the police incriminating the appellant were untrue, and that he had fabricated them to keep himself out of trouble. The appellant also said that William Elliot had now admitted that he was guilty of the murder and that the appellant had not been at the locus. The appellant tendered affidavits supporting these contentions from the three new witnesses, William Gronan, Alexander Hardie and James Charles Coyle, and from William Elliot.
[8]In 1998 the petition was refused on the grounds (1) that there was no explanation as to why the evidence of the three new witnesses had not been available at the trial; it was apparent from the affidavits that the appellant's brother, John Neeson, had known of these allegations; the evidence was hearsay and was in conflict with the evidence of John Elliot; and therefore it could not be considered as credible and reliable; and (2) that the affidavit of William Elliot was neither credible nor reliable in view of his refusal to co-operate with police officers instructed to take a further statement from him.
The reference
[9]The appellant has submitted to the Commission numerous reasons why his case should be referred. The Commission has considered each of them in detail and has concluded that the case should be referred to us on only one ground, namely that the evidence of William Gronan, Andrew Hardie and James Coyle is new evidence that was not available at the time of the trial and that there is a reasonable explanation why it was not available. The Commission is persuaded that if this evidence had been available, it would have been material to the credibility and reliability of John Elliot. If John Elliot had denied making the statements attributed to him by these witnesses, it would have been open to the appellant's counsel to lead those witnesses to establish the contrary position. The Commission concludes that since the credibility and reliability of John Elliot was a central issue, this new evidence is significant and that the jury's verdict, reached in the absence of it, may have resulted in a miscarriage of justice.
The grounds of appeal
[10]In addition to his adoption of the ground of referral, the appellant has argued three grounds of appeal, each of which we reject. The first is that the trial judge misdirected the jury on the question of identification. The second is that the court should receive the new evidence of William Elliot. The third is that the appeal should be allowed because the procurator fiscal may have withheld evidence from the court relating to the possession by John Elliot and two other men of a firearm that was to be used to kill Fiona Gallagher, to whom we have already referred.
[11]In the first of these grounds, the appellant raises the point that the appeal court decided against him (Neeson v HM Adv, supra) and he relies on the same evidence and on the same arguments. We can see no reason why that decision should be reconsidered by a larger court. In our opinion, it is soundly based on the decision of a court of five judges in Muldoon v Herron (supra). It has been applied in Smith v HM Adv (1986 SCCR 135).
[12]The proposed new evidence of William Elliot does not found a proper ground of appeal (cf Campbell v HM Adv, 1998 JC 130). William Elliot denied his guilt at the trial. He took elaborate steps to lay a foundation for his special defence of alibi. Despite the affidavit on which the appellant's petition to the Secretary of State was in part based, William Elliot, for reasons that have not been satisfactorily explained, has refused to co-operate with the appellant's former advisers or to give evidence.
[13]Lastly, the appellant has failed to produce any colourable evidence to support the possibility that the procurator fiscal may have withheld evidence at his trial.
Conclusions
[14]We accept the Commission's view that the affidavits of the witnesses Gronan, Hardie and Coyle constitute new evidence and that there is a reasonable explanation why that evidence was not available at the trial. We agree that if that evidence had been led, it could have cast serious doubt on the credibility and reliability of John Elliot, and therefore on the Crown case. It is possible that this new evidence might be found to have such significance that a verdict reached in ignorance of it could be held to have constituted a miscarriage of justice.
[15]In view of that possibility, we have decided to allow the appellant the opportunity to adduce evidence on this short and specific point. We understand that Gronan and Hardie are available to give evidence. Coyle is dead; but his affidavit will be available to the appellant for what it is worth (cf Gray and O'Rourke v HM Adv, unreported, 23 December 2004). The Crown too will be entitled to lead evidence on the matter, if so advised.