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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Mackay of Drumadoon

[2010] HCJAC 62

Appeal No: XC511/08

OPINION OF THE LORD JUSTICE CLERK

in

THE REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the case of

DOMINIC FERRIE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the appellant: Shead; Miss Smith: Barony Law Practice

For the Crown: Mackay, AD; Crown Agent

15 June 2010

Introduction

[1] This is a referral from the Scottish Criminal Cases Review Commission (the Commission). In August 2002 the appellant was tried at Glasgow High Court on the following charge:

"(1) On 30 April 2001 at 46 Glencleland Road, Craigneuk, Wishaw, you STEWART LEES QUINN and DOMINIC FERRIE whilst acting with STEPHEN MICHAEL NISBET did assault David Hogg James ... repeatedly punch him on the head and body, repeatedly strike him on the head and body with bottles and other blunt and sharp instruments meantime unknown, burn his body with a hot iron, drag him across the floor, forcibly eject him from a first floor window into the rear garden of the premises causing him to strike his head and body against the ground, repeatedly kick and stamp on his head and body, and strike him over the head and body with pieces of slabbing, and did murder him ... "

The appellant was convicted under deletion of the words in italics. Stewart Quinn was convicted under the same deletion. Later, Stephen Nisbet was tried and convicted on the same charge. On 16 September 2005 the appeals of all three were refused.

[2] The Commission has referred the appellant's case to us on the grounds of (1) insufficiency of evidence and (2) the unreasonableness of the jury's verdict. The appellant has taken the opportunity to table additional grounds of appeal.

The evidence

[3] On the date libelled a drunken party took place at a flat occupied by Jason Gallacher on the first floor at the address libelled. Gallacher left early on and went across the road to the home of his girlfriend, Pamela Fisher, with whom her friend Jade Chinskie was spending the night. Miss Chinskie slept on a sofa in the living room the window of which looked straight across to Gallacher's flat and gave her a clear view to the front of the building and to the side of it.

[4] At about 4 am a disturbance broke out at the party in the course of which Nisbet was seen to stand over the deceased and punch him as he sat in a chair. The witness Gerald Hoey was in another room. He went to investigate. He found the deceased in the hallway on his hands and knees, bleeding from the head. He appeared to be quite far gone. He said "That's enough, boys." The appellant, Quinn and Nisbet then surrounded him. Nisbet said "Out of the window with him" or words to that effect. The appellant stood behind the deceased, Quinn stood at his feet and Nisbet stood at his side. All three lifted him up and carried him to the living room. The appellant held him under the arms.

[5] The deceased was later found lying dead in the back garden directly below the living room window. Bloodstains from the deceased were found in the living room and on the windowsill of the living room and on the wall outside directly below the window. Pieces of bloodstained paving slabs were found next to the body. Two mobile phones were found near it. One was beneath a piece of paving slab. It belonged to Quinn. The other belonged to Nisbet. A fingerprint of the appellant was found on the outside of the living room window.

[6] There was evidence that for the deceased to be thrown out of the window, it would be necessary for the window to be fully open; and that only if the window was fully open could the appellant's fingerprint have been left where it was found.

[7] Blood from the deceased was found on the outside wall below the window, close to the appellant's fingerprint. A Crown witness, Miss Ramage, a forensic scientist, said that the indentations in the ground below the window could not have been caused by the deceased's having been thrown out of the window. She reached that conclusion by reference to the condition of the ground and the nature of the indentations.

[8] Jade Chinskie said that she was wakened when two men came over from the party to report that the deceased was getting a beating. After they left, she looked across to Gallacher's flat. She saw two men outside the building. One of them was manhandled down the front stairs. Four men, including these two, went round to the side of the house towards the rear. Quinn was one of them. She saw him stamping on something or someone near where the deceased's body was found. Three of the men ran off together, jumping over a fence at the side of the garden near to the deceased's body.

[9] The medical evidence was that the deceased received a severe beating in which he was punched and kicked numerous times on the head and body and struck on the head with pieces of paving slab. An iron found in the house had pieces of his skin adhering to it. His face was badly burned. There was no causal link between the injuries sustained in the assault in the house and the death. The death was caused by the blows to his head with the pieces of slab.

The trial judge's charge

[10] The trial judge gave the following directions in relation to the appellant:

"You have to go through the same exercise in the case of Dominic Ferrie. The evidence against him is perhaps more compact. It depends first of all again on the evidence of Gerard Hoey who saw this brief incident outside the living room. As in the case of Stewart Quinn, Gerard Hoey told you that Dominic Ferrie also participated in taking David James back into the living room after or about the same time Mr Nisbet says something along the lines of putting David James out of the window.

Again on the prosecution view that involves Dominic Ferrie in the same way as it has said about Stewart Quinn - a concerted and continuing attack on David James which led to the victim ending up dead in the back garden.

So, where is the corroboration for this? The corroboration, ladies and gentlemen, in the case against Dominic Ferrie is only found in one source, and this is the fingerprint which was discovered on the outside of the living room window which you see in court, and how this works in the prosecution case against Dominic Ferrie is this.

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 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. That is because in order to achieve that, as you have heard in evidence, the window would have to be fully open (inaudible) and that would allow someone involved in the operation, the operation of putting David James out of the window, to leave his fingerprint on the outside of the bedroom - I beg your pardon, the living room window frame.

Obviously that evidence would not be nearly as firm if the fingerprint had been found on the inside of the window. You will remember there were other fingerprints of Mr Ferrie found inside the house. If you take that view of the significance of the fingerprint on the outside of the window, that would provide confirmation of the evidence of Gerard Hoey to the effect that Mr Ferrie was involved in all of what happened" (Charge, pp 29-31).

The Commission's reasoning and conclusions

[11] The Commission considers that the jury could have convicted the appellant only if they concluded that the assault within the house and the assault in the garden were linked. It takes the view that the deletion by the jury of the averment that the deceased was forcibly ejected through the window removes the only substantial evidential link between the two incidents. It points out that, although the Crown case was that the three men who ran away were the same three men who assaulted the deceased inside the house, there was no direct evidence linking the appellant to the assault in the back garden or suggesting that he was ever there.

[12] The Commission considers that the finding of four blood-stained sections of paving slab in the garden, none of which was forensically linked to the appellant, Quinn or Nisbet, might be taken to suggest that at least four people were involved in the fatal assault. The Commission considers that Jade Chinskie was too vague and inconsistent for there to be much reliance placed on her evidence on this point. The suggestion that the men who left with Quinn also took part in the assault is, in the opinion of the Commission, speculative. The incident in the house could be linked with events outside it only if it were to be inferred that the man whom Miss Chinskie saw being taken down the stairs was the deceased. If the jury accepted that theory and accepted that the men who left with Quinn were participants, they must have concluded that at least four people were involved in the assault, none of whom was identified by any witness as being the appellant.

[13] The Commission accepts that there was enough evidence to entitle the jury, if it found the charge proved in full, to convict the appellant of murder; but it suggests that with the exclusion of the averment that the appellant, Quinn and Nisbet forced the deceased out of the window, there was in consequence "a lack of evidence sufficiently substantial to permit the jury to infer that the appellant was involved in the latter stage of the attack."

[14] The Commission is further of the view that since the Crown case was that the deceased was ejected from the window, and since the jury were directed that one of the conditions for treating the evidence of the fingerprint of the appellant as corroborating Hoey's evidence was that the deceased was put out the window, the verdict was unreasonable in the sense described in Rooney v HM Adv (2007 SCCR 49). The verdict that the case against the appellant was sufficient and that the appellant had not ejected the deceased from the window was, in the context of the evidence led at trial, contradictory and contrary to the directions of the trial judge.

[15] The Commission is therefore of the view that there may have been a miscarriage of justice.

Conclusions

[16] In my opinion neither of the points on which the Commission has referred this case gives us any reason to disturb this conviction.

[17] The Crown case was that the appellant, Quinn and Nisbet assaulted the deceased in three phases: (1) they attacked him in the house; (2) they threw him out of the window; and (3) they attacked him in the rear garden by kicking and stamping and by striking him on the head and body with pieces of slabbing. It is not disputed that the blows that caused the death were inflicted in the rear garden.

[18] The critical question, in my view, is whether the jury were entitled to hold that the appellant was one of the assailants in the garden. If he was, then it does not matter, in my opinion, how the transition was effected between phases (1) and (3) of the attack.

[19] There was sufficient evidence, in my opinion, to entitle the jury to convict the appellant on the libel as restricted by them. There was evidence that the appellant was one of the assailants in the house. He, Quinn and Nisbet were seen beside the deceased as he lay in the hallway, bleeding from the head. It was open to the jury to hold that when the deceased said "That's enough, boys," he was referring to those three.

[20] Nisbet then called for the deceased to be put out of the window, at which all three men lifted the deceased and carried him into the living room. The jury were entitled to conclude that all three were intent at that stage on continuing the assault by putting the deceased out of the window.

[21] Miss Chinskie spoke to events occurring just after the news came that the deceased was getting a beating. She saw a man being manhandled down the outside stairs of the house by another man. The first man appeared to be drunk. She saw both men go round to the side of the house. She then saw four men at the side of the house, including the two whom she had seen coming down the stairs. Then she saw Quinn stamping on something or someone at a point close to where the deceased's body was found. Quinn and two others then ran off over the fence near to that point.

[22] After they ran away, the mobile phones of Quinn and Nisbet were found lying on the ground near the body.

[23] In my opinion, since the attack on the appellant in the garden followed almost immediately after the attack in the flat, the jury were entitled to conclude that the same three men carried out both attacks. That inference was supported by the finding of the mobile phones of Quinn and Nisbet. There may well have been other possible conclusions to be drawn from the evidence; but so long as this conclusion could reasonably be drawn, there was a sufficiency of evidence against the appellant on the murder charge (Williamson v Wither 1981 SCCR 214; Fox v HM Adv, 1998 JC 94).

Unreasonable verdict of the jury

[24] In my opinion, the deletion of the averments in the libel to the effect that the appellant, Quinn and Nisbet put the deceased out of the window does not make the verdict in any way unreasonable. There is a sound explanation for the deletion. The trial judge has given it in his report to the court.

[25] The jury were entitled to conclude that the three assailants carried the deceased into the living room in order to put him out of the window. They were entitled to conclude from the finding of the appellant's fingerprint on the outside of the window and of the bloodstain of the deceased near to it, that those men had at least attempted to do so. If they accepted the evidence of Miss Ramage, as they plainly did, the only possible conclusion was that the deceased had reached the locus by the stairs, In view of Hoey's evidence that the deceased was quite far gone in the flat, the jury were entitled to conclude that he was the person whom Miss Chinskie saw being manhandled down the stairs and, in my opinion, to conclude that those who attacked him in the flat continued the attack outside. That inference was a logical and reasonable interpretation of the evidence, whatever other inferences might have been possible.

[26] I should add that although the Commission considers that Miss Chinskie was "too vague and inconsistent to allow much reliance to be placed upon her evidence on the point" (Referral, para 73), the quality of her evidence, and her credibility and reliability as a witness, were matters for the jury. It is true that Miss Chinskie's evidence was unclear at times; but in substance she did give the account that I have described. It cannot be said that the jury acted irrationally in accepting it.

[27] In my view, the Commission's suggestion that four men could have attacked the deceased is fanciful. It is based on the fact that four pieces of slab were found to have been stained with the deceased's blood, but were not forensically linked with the appellant or Nisbet (Referral, para 74). The Commission's speculation that there could have been four assailants is therefore based on the assumption that each assailant struck the deceased with only one piece of slab. I see no reason why such an assumption should be made. If Miss Chinskie saw four men, and if the man whom she thought was drunk was the deceased, then the jury had every reason to conclude that there were only three assailants. That conclusion was entirely in keeping with the evidence of Hoey as to the events in the flat.

[28] For these reasons I conclude that there was no miscarriage of justice on either of the points that the Commission has referred to us. I therefore turn to the grounds of appeal.

Grounds of Appeal

Ground 1

[29] This ground is to the effect that there was insufficient evidence to establish that the appellant participated in the assault outside the house. It repeats the ground of appeal that was considered and rejected by this court in 2005. In essence, the argument is the trial judge narrowed the issue for the jury by directing them that proof of the appellant's guilt of the murder depended upon their accepting that the deceased had been pushed out of the window (Charge, p. 30, supra). As the court observed in the Opinion delivered by the Lord Justice General, the significance of the appellant's fingerprint on the outside of the window in the context of 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; that whether or not the deceased was ejected from the window by his attackers was not of critical importance; and that the appellant could have put his fingerprint on the window at a stage when the assailants were intending to carry out what Nisbet had encouraged them to do. The court's conclusion was that the trial judge should not be understood as having directed the jury that they could not convict if they did not accept that the deceased had been ejected from the window. He was doing no more than outlining the evidence relied upon by the Crown in support of the full terms of the murder charge. The evidence, including the evidence of the appellant's fingerprint, was at large for the jury to consider in support of the Crown case that all three men participated in a serious assault on the deceased leading up to the fatal attack on the ground beneath the bedroom window (Quinn and Ors v HM Adv, 2005 HCJAC 101, 16 Sept 2005, at para [10]). I agree entirely with that reasoning. There is no substance in this ground of appeal.

Ground 2

[30] This ground is to the effect that, if there was sufficient evidence against the appellant, the trial judge failed adequately to direct the jury in relation to the appellant's position; that the directions were apt to suggest that if the appellant was involved in ejecting the deceased from the window, he could be convicted of murder without reference to any further evidence; and that the jury should have been directed on the critical issue as to the appellant's participation in the assault on the ground. The submissions of counsel for the appellant on this ground overlapped with the submissions on ground 1. Counsel for the appellant argued that if, as the trial judge suggested, the evidence against the appellant was the direct evidence of Hoey and the presence of the appellant's fingerprint on the window, that could not be enough to link the appellant to the third phase of the incident. I disagree. The evidence of Hoey implicated the appellant in the attack in the flat and in the plan to put the deceased out of the window. Whether or not that plan was fulfilled is neither here nor there. In my opinion, the trial judge did not misdirect the jury in this respect. This ground of appeal falls to be rejected for the reasons given by this court in rejecting the previous appeal.

Ground 3

[31] This ground suggests that the trial judge misdirected the jury when he directed them that it was sufficient for a conviction of murder if the Crown established that whoever attacked the deceased intended to do him serious harm. Counsel for the appellant suggested that the trial judge should have directed the jury on the possibility that the appellant was guilty only of a serious assault on the deceased within the house. In my opinion there is nothing in this ground of appeal. It was established beyond dispute that the murder occurred in the garden. The jury plainly convicted the appellant on the basis that his participation in the assault upon the deceased was not confined to his actings in the house.

Ground 4

[32] In this ground it is suggested that the directions of the trial judge were apt to suggest that it was sufficient for the appellant to be convicted on the basis of concert if he had been part of a common plan to carry out a serious assault on the deceased. That direction, in my opinion, was appropriate as the law was understood at the date of the trial. Since then, the appropriate direction on the point has been refined (McKinnon v HM Adv 2003 SCCR 224, at paras [27]-[32]).

[33] Even if, retrospectively, we were to hold that the trial judge misdirected the jury, the point would have no practical significance in this case. The evidence plainly suggested that the appellant participated in the concerted attack in the house; in the plan to put him out of the window and in the attack in the garden. The evidence of the pathologist established the murderous nature of that attack. The solicitor advocate who defended the appellant, defended him on the basis that the choice for the jury was between a conviction for murder or an acquittal based on the view that the appellant took no part in the third phase of the incident. In my view, a conviction of the appellant for anything short of murder was not a realistic option in this case.

Ground 5

[34] This ground is to the effect that the trial judge misdirected the jury by failing to direct them that if they did not find concert to be established in relation to the appellant they should acquit him. This ground of appeal is misguided. Even if the jury did not find concert to be established, each of the three assailants was liable for his own actings. It did not necessarily follow that the jury should acquit. In my opinion, it was not open to the jury to hold that concert was not established if, as they plainly did, they found that those who attacked the deceased in the garden were those who attacked him in the flat.

Grounds 6 and 7

[35] These grounds are to the effect that no reasonable jury properly directed could have convicted the appellant, standing the deletion that was made to charge; and that, standing that deletion and the directions given regarding the significance of the appellant's fingerprint, the verdict was irrational. These grounds of appeal raise substantially the same point. It is the second point on which the Commission has referred this case. I reject both grounds for the reasons that I have already given.

Disposal

[36] I propose to your Lordships (1) that on the Commission's referral we should find that we have no ground for concluding that there may have been a miscarriage of justice; and (2) that we should refuse the appellant's appeal.


APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Mackay of Drumadoon

[2010] HCJAC 62

Appeal No: XC511/08

OPINION OF LORD OSBORNE

in

THE REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the case of

DOMINIC FERRIE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the appellant: Shead; Miss Smith: Barony Law Practice

For the Crown: Mackay, AD; Crown Agent

15 June 2010

[37] I agree with your Lordship in the chair and have nothing further to add.


APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Mackay of Drumadoon

[2010] HCJAC 62

Appeal No: XC511/08

OPINION OF LORD MACKAY OF DRUMADOON

in

THE REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION

in the case of

DOMINIC FERRIE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For the appellant: Shead; Miss Smith: Barony Law Practice

For the Crown: Mackay, AD; Crown Agent

15 June 2010

[38] For the reasons given by your Lordship in the Chair, I also agree that this appeal should be refused.