STEWART QUINN+DOMINIC FERRIE+STEPHEN NISBET v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice General Lord Abernethy Lord Johnston | [2005HCJAC101] Appeal Nos: XC590/03 XC406/02 XC859/03 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTES OF APPEAL AGAINST CONVICTION by STUART QUINN, DOMINIC FERRIE and STEPHEN NISBET Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant (Quinn): Jackson, Q.C., McShane; Bishops
Appellant (Ferrie): Keegan, Solicitor Advocate, Ogg; Wheatley & Co.
Appellant (Nisbet): Findlay, Q.C., Gilchrist; Beltrami & Co., Glasgow
Respondent: Bell, Q.C., A.D.; Crown Agent
16 September 2005
[1]The three appellants were convicted of the murder of David James Hogg at a house in Glencleland Road, Craigneuk, Wishaw on 30 April 2001. The appellants Quinn and Ferrie were convicted in the High Court at Glasgow on 6 August 2002. Quinn was convicted, and Ferrie acquitted, of the other charge on the indictment, which was a charge of attempting to defeat the ends of justice. Subsequently the appellant Nisbet stood trial in the High Court at Glasgow on a separate indictment and was convicted of murder on 4 June 2003.
The trial of Quinn and Ferrie
[2]According to the evidence at the trial, on the evening of 29 April 2001 a large group of men who had attended a football match between Celtic and Rangers, or had watched it on television, went to the house of a Jason Gallacher in Glencleland Road. Many of those present consumed a large quantity of drink and drugs. Among those present were the three appellants and the deceased. At about 4 a.m. a disturbance broke out. There was evidence that the appellant Nisbet was seen assaulting the deceased, and in particular standing over him and punching him as he sat on a couch. At that point a number of those present left the house. Two of them went across the road to a house occupied by Pamela Fisher and informed Mr Gallacher there that the deceased was getting a beating.
[3]Gerard Hoey gave evidence as to being in the living room of Mr Gallacher's house, which was on the first floor, when he heard the noise of banging and smashing coming from a bedroom to the rear of the house. He had not consumed drugs on the night in question. He put on his boots and went to see what was happening. He heard Nisbet shouting: "You'll take those words back, you'll take those words back". He then saw the deceased lying in the hall on his chest with his head up. He was bleeding from the head and appeared to the witness to be quite far gone. The deceased said: "That's enough boys, that is enough for me". At that point he was surrounded by the three appellants. He was dragged back into the bedroom. Nisbet dragged him by the waist, and it appeared that Ferrie had his shoulders and Quinn his feet. Nisbet said: "Right, out the window with him, out the window with him". The deceased was in a bad way. He was bleeding profusely.
[4]There was scientific and forensic evidence that a couch in the bedroom was extensively stained with the deceased's blood. There were stains of his blood not only in the house but also on the windowsill of the bedroom, and on the outside of the wall below the window. The body of the deceased was found in the back garden below the bedroom window. There were indentations in the ground beneath the body. Three pieces of bloodstained paving slabs were found near the body. It appears that they had been dug up for use against him. Near where he was lying there were two mobile phones, one of which was beneath one of the slabs and belonged to the appellant Quinn. Evidence was given by Dr Al-Alousi, the pathologist, that the indentations could have been caused by the body falling from a height or being hit by a slab. However, Ann Ramage, a forensic scientist, gave evidence to the effect that the indentations could not have been caused by the body being thrown out of the window. This was because of the nature of the ground and the shallowness of the indentations. It was not in dispute that the deceased had been killed where his body was found. A fingerprint of Ferrie was found on the outside of the window of the bedroom. This window was of a type which could be opened inwards as well as tilted. There was evidence that in order to throw someone out of the window it was necessary to have the window open to its fullest extent. The window was found closed when the fire brigade arrived.
[5]Evidence was given by Jade Chinskie, a 17-year-old girl, who had been spending the night in the house of Pamela Fisher, that she saw a man being helped by another man down the outside stairs at the front of Mr Gallacher's house, which was directly opposite. The two men went round to the side of the house. She saw the appellant Quinn stamping twice on something at the side of the house, but could not see what it was. She saw him and the two others run off, jumping over a fence at the side of the garden. She had earlier seen him at a sink in Mr Gallacher's house behaving as if he was washing something. She saw him pulling down the blinds in the living room. In the course of a car journey after his arrest Quinn said, according to the evidence of police officers: " We'll walk for this - no witnesses. We'll make sure they don't speak up in court". In the hall there were footprints, covered with soot and blood, which could have been made by a training shoe which was found in the sink. However, there was evidence that it belonged to another person who had been in the house that night and had left.
[6]The pathology evidence indicated that the deceased had received an extensive and severe beating. He had been punched and kicked numerous times about the head and body, and there was evidence that he had been struck with the paving slabs. He had been burnt on his back with an iron. An iron was found in the living room with parts of his skin adhering to it. In addition the side of his face had been badly burnt, and there was soot in his trachea. There was forensic evidence that two fires had been set deliberately in the house, one in the bedroom and the other in the living room. It was evident that the deceased's face had been burnt by the fire in the bedroom, which was virtually destroyed. The window was partially charred. Next to that window and nearer the corner between the rear and the side of the house was the bathroom window.
[7]It may be noted that, according to the terms of the murder charge of which Quinn and Ferrie were convicted, while acting along with Nisbet they repeatedly punched the deceased on the head and body, repeatedly struck him on the head and body with bottles and other blunt and sharp instruments, burnt his body with a hot iron, dragged him across the floor, repeatedly kicked and stamped him on his head and body, and struck him over head and body with pieces of slabbing. The jury deleted an allegation that they had forcibly ejected him from a first-floor window into the rear garden of the premises causing him to strike his head and body against the ground. According to the terms of the second charge Quinn wilfully set fire to material within the bedroom and the living room with intent to conceal his guilt.
[8]It is convenient to begin with Ferrie's appeal. Mr Keegan, who appeared as solicitor advocate on his behalf, maintained that no reasonable jury, having been properly directed and having decided to delete the allegation that the deceased was forcibly ejected from the bedroom window into the rear garden could have returned a verdict of murder against him. The Crown founded on the finding of Ferrie's fingerprint on the outside of the bedroom window as indicating that he was involved in ejecting the deceased from that window. However, the jury had rejected the allegation that the deceased had been ejected. Moreover, they had acquitted Ferrie of the second charge, and hence rejected the allegation that he was involved in setting fire within the bedroom and the living room.
Mr Keegan placed particular reliance on a passage in the trial judge's charge to the jury (at page 30) where, in the course of reviewing the Crown case against Ferrie, he said:
"If you accept that Dominic Ferrie on the evidence of Gerard Hoey took part in an attack on David James within the house, acting in concert with the other two named in the indictment, and if you accept that his participation was against a background of an intention expressed by Nisbet to put David James out of the window, and further if you accepted David James was put out of the window, then the presence of Dominic Ferrie's fingerprint on the outside of the window could provide confirmation of (sic) corroboration that Mr Ferrie was involved in opening the window at the material time. If that is so it is possible for you then to conclude that Mr Ferrie was participating in putting Mr James out of the window"
Mr Keegan claimed that by so directing the jury the trial judge had narrowed the issue for the jury so that proof of Ferrie's guilt depended on whether they accepted that the deceased had been ejected from the window. It was also important to bear in mind that there was an alternative explanation for Ferrie's fingerprint. There was evidence from the witness Hoey that Ferrie had been a frequent visitor to the house, including the bedroom. His fingerprint was found on an unbroken glass in the house. There was also evidence from Hoey that people had been sitting in the bedroom, and that their mobile phones were at the window. In the circumstances it would be irrational for the jury to hold that there was significance in Ferrie's fingerprint being on the outside of the window.
[9]The Advocate depute submitted that Mr Keegan's approach was too narrow. On the evidence of Hoey, Ferrie was involved with Quinn and Nisbet in a very serious assault on the deceased within the house, in the course of which Nisbet shouted "out of the window with him" as he was being dragged back into the bedroom. It was important to note that a bloodstain from the deceased was found on the outside of the wall below the bedroom window. As was suggested in the course of the trial, this could have been due to the deceased drooping out of the window. It was clear that in some way or other the deceased had gone out of the window. That was not inconsistent with the evidence of Ann Ramage. There was no foundation for the idea that he had been taken out of the front and round to the back of the house. The incident had ended, as it had begun, with the involvement of three men and it was open to the jury to conclude that Ferrie was one of them. In the passage from the charge which was founded on by Mr Keegan the trial judge was reminding the jury of the contentions for the Crown. He did not direct the jury that they could not convict if they did not accept that the deceased had been ejected from the window.
[10]In our view it is clear that the significance of the fact that Ferrie's fingerprint was found on the outside of the window, when taken along with the evidence as a whole, was that it entitled the jury to infer that he was involved in a continuing assault on the deceased at the window. Whether or not the deceased was ejected from the window by his attackers was not of critical importance. Ferrie could have put his fingerprint on the window at a stage when they were intending to carry out what Nisbet had encouraged them to do. We do not consider that the trial judge should be understood as, in effect, directing the jury that they could not convict if they did not accept that the deceased had been ejected. He was doing no more than outlining the evidence which was relied upon by the Crown in support of the full terms of the murder charge. The evidence, including the evidence of Ferrie's fingerprint, was at large for the jury to consider in support of the Crown case that each of the three men had participated in a serious assault on the deceased leading up to the fatal attack on the ground beneath the bedroom window. In these circumstances we are satisfied that Ferrie's appeal against conviction should be refused.
[11]As regards Quinn's appeal against his conviction for murder, a number of grounds were set out in the note of appeal on his behalf. However, Mr Jackson, who appeared on his behalf, concentrated on the second ground of appeal in which it is maintained that the trial judge misrepresented the significance of evidence given by the witness Jade Chinskie. At page 25 of the transcript the trial judge invited the jury to consider whether there was any corroboration or support for the evidence given by Mr Hoey. He stated that, according to the prosecution, there were several sources of such supporting evidence. He continued:
"First of all the witness Jade Chinskie maintained that she saw Stewart Quinn going round the side of the house that was owned by Mr Gallacher and stamping on something on the ground a very short distance from where David James' body was found. Now, as I understand it from the circumstances the Crown therefore invite you to infer if you wish that Stewart Quinn was stamping on Mr James, thus continuing the assault which had begun in the house. Now, that is a matter for you ladies and gentlemen. You have to consider the evidence in respect of that and come to what conclusion you think is appropriate".
[12]Mr Jackson submitted that the trial judge was completely wrong. The witness had given evidence as to Quinn stamping on something at the side of the house. This was not "a very short distance" from where the body of the deceased was found. More importantly, from her viewpoint the witness could not see the rear of the house, and in particular the part of it below the bedroom window. It was thus physically impossible that what she saw was Quinn stamping on the deceased. In the course of his speech to the jury the Advocate depute had reminded the jury that the witness had said that she did not know what he was stamping on "whether it was indeed Mr James or whether it was something else he was stamping on". This made it all the more incumbent on the trial judge to see that the jury were informed as to the inferences which could or could not properly be drawn from her evidence.
[13]Mr Jackson went on to submit that this was a material error on the part of the trial judge which gave rise to a miscarriage of justice. He accepted that, even if it could not be inferred that Jade Chinskie was witnessing Quinn stamping on the deceased, there was sufficient evidence for his conviction. However, the elimination of stamping changed the whole complexion of the evidence against Quinn. There was no evidence that Quinn assaulted the deceased outside the house. The fact that Quinn ran away could have been due to his involvement with what happened in the house. There could be various explanations for the presence of his mobile phone near the body of the deceased. The training shoe which was found at the sink was of no significance.
[14]In reply the Advocate depute pointed out that at the trial the Crown's position was that the deceased had left the house by the bedroom window. The trial judge had correctly reminded the jury that the witness had not been able to say what Quinn had been stamping on. There was no miscarriage of justice. There was ample evidence of Quinn's involvement in the homicide. He was involved in an attack on the deceased in the house, where the deceased was seen to be bleeding profusely. The face of the deceased showed that he had been burnt by the fire which had been set in the bedroom. Quinn had participated in dragging the deceased back in to the bedroom after Nisbet had shouted that he should be put out of the window. Quinn was observed outside the house, and escaping with two other men. His statement to the police was significant. While the trial judge had misrepresented the possible effect of the evidence of the witness, this was not of such materiality as to give rise to a miscarriage of justice.
[15]Mr Jackson submitted that it followed that Quinn's conviction on the second charge should also be quashed. It was doubtful whether the jury would have convicted on this charge merely on the strength of Quinn having assaulted the deceased in the house. The evidence as to Quinn washing something and pulling down the blinds was not enough.
[16]The Advocate depute maintained that Quinn's conviction on this charge should not be affected. It was clear that the fires had been set deliberately to defeat the ends of justice. On the evidence it was clear that they had been started before the deceased left the house. It was likely that the jury had distinguished between Quinn and Ferrie because of the evidence that Quinn had been seen pulling down the blinds.
[17]We are in no doubt that, on the evidence before the jury, there was nothing to support the idea that Quinn could have been stamping on the body of the deceased. However, we are not satisfied that any misrepresentation of the significance of the evidence of stamping led to any miscarriage of justice. The important point is that this evidence, when taken with other evidence, entitled the jury to infer that Quinn had left the house and was taking physical action to participate in the attack on the deceased outside it. His appeal against his conviction for murder fails.
[18]As regards the second charge there was ample evidence from which it could be inferred that fires had been set in the house in an attempt to defeat the ends of justice. Quinn was one of the last to leave the house. He had a motive for setting fire to the house, and, most important of all, was seen to be pulling down the blinds in one of the rooms where a fire had been set. His appeal against conviction on this charge also fails.
The trial of Nisbet
[19]It may be noted that the terms of the charge on which Nisbet stood trial were different in certain respects from that faced by Quinn and Ferrie. The charge against Nisbet included the allegation that, along with Quinn and Ferrie, he exposed the deceased's face and body to fire causing him to be burnt. It also substituted an allegation that they attempted to eject him forcibly from the bedroom window, and by forcing him from the window removed him from the house to the rear garden. In the course of the trial the Advocate depute amended the murder charge in a number of respects which are not material for present purposes. Nisbet was found guilty of the charge as amended.
[20]The summary of the evidence which the trial judge in this case has given in his report is largely to the same effect as the summary which we have given above. However, he adds that there was evidence that some time after 3 a.m. a violent argument developed in the bedroom between the deceased and Nisbet. Two men who left the house at this stage had heard the sound of argument with shouting, banging and the smashing of bottles and glasses. One of them looked into the bedroom and saw the deceased and Nisbet standing, facing one another. As the other left the house he heard the deceased and Nisbet shouting abuse at each other and swearing. Nisbet punched the deceased who was by then sitting on a couch. Although he was retaliating he was getting the worst of it. At that point the deceased and the three appellants were the only people in the bedroom, and within minutes they were the only people in the house. The last person to leave the house who was not involved was Hoey who heard the noise of breaking glass and shouting coming from the room. Thereafter he described the scene in the hall in essentially the same way as he did at the first trial. At the time he voiced some protest at what was happening to the deceased. He had a good idea that the deceased was being killed.
[21]The trial judge also noted that no blood was found on the path at the side of the house. When the police and the fire brigade arrived at the house it was found that the house had been locked. When the front door was forced its key was found inside in the lock. He noted that the Crown's theory was that the stamping by Quinn, to which the witness Chinskie spoke, was to break up the slabs. She gave evidence that she saw him disappear and then re-emerge and run with two other persons to the back garden fence, after which all three of them disappeared. She knew Quinn. In cross-examination she said that she saw man in a Celtic football shirt being dragged downstairs by another man, who was not Quinn, and going to the rear. Before any of that she saw two men at the side of house. Each changed his shirt. The trial judge also states in his report that Hoey gave evidence that some seven or eight months later he met Nisbet met by chance in a car park in Motherwell when the latter arrived in a car. According to Hoey, Nisbet spoke to him, to the following effect: "... it was a mistake, it should not have happened... need to sort out what we would say and did I (Hoey) want to move away...". He told Hoey that he should not give evidence and that if he did it would not be in his best interests. He was asked if he needed money and £10,000 was mentioned. Nisbet gave him his phone number to make contact.
[22]Mr Findlay, who appeared on behalf of Nisbet, submitted that there was insufficient evidence to entitle the jury to conclude that he had been acting in concert with Quinn and Ferrie in the garden where the deceased was killed. There was no evidence directly involving Nisbet in doing anything to the deceased when he was in the garden. According to the evidence of Chinskie, taken as a whole, there could have been up to seven different people outside the house. Mr Findlay said that it was pretty clear that the deceased had left the house by the bedroom window, although it was not clear precisely how he had come to do so. It was likely that he had dropped himself out of the window to avoid the incident or the fire. The man who was dragged from the front of the house was not the deceased, who was not wearing a Celtic shirt. There was nothing to identify Nisbet as one of the three men who escaped over the fence. What he said to Hoey should not be taken as an admission of an involvement in murder. It was consistent with his being concerned with his involvement in an assault on the deceased in the house.
[23]The Advocate depute emphasised the serious nature of the assault in the house. What happened to the deceased in regard to his leaving the house was consistent with Nisbet's shout. The Advocate depute also pointed out that there had been evidence of what had been recorded on CCTV as taking place in the road. Although other people had been filmed going into the road from the front of the house, not one of the appellants had been filmed doing so. The evidence suggested that Quinn had made his escape over the fence in the company of the other two appellants. It was important to note that Chinskie, who knew Quinn, did not see him coming from the front of the house. This suggested that it was Ferrie and Nisbet who came from the front, one dragging the other, while Quinn came down from the bathroom at the back of the house, after locking the front door from the inside, and then appeared at the side of the house where he was seen by Chinskie. It was found that the window of the bathroom was the only window which was open, and that there was a smear of blood on a rhone pipe which was close to that window. The evidence of Chinskie in examination in chief was reasonably clear. Why should Nisbet speak to Hoey as the latter said if he was not involved in the murder?
[24]It is important to bear in mind that the jury were entitled to consider what inference should be drawn from the evidence as a whole. The jury were satisfied that all three men had taken part in a very serious assault on the deceased in the house, after which they had ejected him from the bedroom window. The evidence that Quinn made his escape over the fence in the company of two other men, coupled with the evidence of what had been recorded on CCTV supported the conclusion that all three men were involved in the fatal attack at the back of the house. The significance of the evidence of what Nisbet said to Hoey was a matter for the jury. There is much to be said the view that the most obvious interpretation of his words is that he was referring to the death of the deceased. In these circumstances we are satisfied that his appeal against conviction is not well founded, and his appeal is refused.