Appellant: J Hamilton QC, Labaki; Paterson Bell

Respondent: Shand QC AD; Crown Agent

27 February 2013

Introduction

[1] The appellant was born on 21 January 1993. On 15 December 2011 he was convicted of the murder of George McLaughlin ("the deceased"). He appeals against conviction on the basis of a post-trial affidavit dated 21 December 2011 in which his older brother Thomas Shields maintains that he, and not the appellant, murdered the deceased. The appellant relies upon section 106 of the Criminal Procedure (Scotland) Act 1995, which provides inter alia:

"(3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on -

(a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings ...

(3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard ..."

The focus at this stage of the appeal is whether or not there is a "reasonable explanation" for the evidence not having been heard at the original proceedings.

The "first" trial

[2] The indictment contained six charges and three accused, namely the appellant's older brother Thomas Shields, Joseph Newlands and the appellant. The first three charges related to incidents on 23 July 2010, in one of which all three accused were alleged to have assaulted James George. The next two charges related solely to the appellant and were in the following terms:

"(004) on 3 April 2011 at Gertrude Place, Barrhead, you PATRICK JOSEPH SHIELDS did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did shout, swear, make threats of violence, brandish a knife or similar implement and throw stones at a flat and kick a door there: contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

(005) on 3 April 2011 at Gertrude Place, Barrhead, you PATRICK JOSEPH SHIELDS did assault George McLaughlin, residing at 13F Gertrude Place, Barrhead, pursue him and repeatedly strike him on the head and body with a knife or similar implement and you did murder him, and you did previously evince malice and ill will towards him."

The sixth charge was not insisted upon by the Crown.

[3] Thomas Shields was interviewed by the police on 3 April 2011 in connection with the first three charges. In the first statement, he was noted as saying:

"I am aware that the police attended an incident outside my mother's house last night (early hours Sunday morning 3 April 2011). I have no idea why the police were called to Gertrude Place. I was subsequently arrested by the police from Kevin Lawniczek's house due to a bail condition that I do not enter Barrhead. I have been asked by the police about my movements this weekend. [Thomas Shields then described his movements in some detail, including visiting his mother Janice Agnew, then the police arriving outside her flat when he left and went to his friend Kevin across the landing where the police found him. He continued:] I can say that at no point during last night did I get involved in any altercations with the George family or George McLaughlin. I am not aware of any incident last night involving any member of my family and George McLaughlin ..."

The second statement contained the following passages:

" ... Tracy locked the car and she made her way up the street to my mum's and I went round the back so that nobody could see me especially Margaret George, she would've phone the police. I had to jump a fence and go through a back court to get into my mum's close. I went into the back door and made my way upstairs. I walked into my mum ... I was aware that the incident that the police were attending was George McLaughlin having been attacked outside in the street. The CID told me this today. I did not witness this ... I have no knowledge of who is responsible ..."

[4] A jury was empanelled on 29 November 2011. Some evidence was led, including the evidence of the complainer James George who suffered from hearing difficulties. After an adjournment, the advocate depute advised the court that she no longer intended to proceed with the charges against Thomas Shields and Joseph Newlands. Charge 1 was deleted; Thomas Shields was acquitted of charges 2 and 3; and Joseph Newlands was acquitted of charge 2.

[5] The trial judge then deserted the diet pro loco et tempore against the appellant, and appointed a diet of trial in terms of section 81(2) to proceed against the appellant on 2 December 2011.

The "second" trial

[6] At the second trial beginning on Friday 2 December 2011, charges 4 and 5 were renumbered charges 1 and 2. The appellant lodged a special defence incriminating his older brother Thomas Shields in the following terms:

"Graham for the panel Patrick Joseph Shields states that the panel pleads Not Guilty, and specially and without prejudice to said plea states that the murder of George McLaughlin libelled on the indictment was committed not by the panel, but by Thomas Shields, presently defence witness number 3 on the list of defence witnesses."

[7] On Monday 5 December 2011, Thomas Shields (by then no longer an accused person but the incriminee), gave the appellant's solicitors a precognition. That precognition contained the following:

" ... I know why you require a statement from me and I understand that Patrick is incriminating me for the crime of murder. I have already spoken to my lawyer in respect of this and I know my rights and that I do not have to provide you with a precognition ... I was evicted from my property [in Gertrude Place across the road from my mum] due to the difficulties we had with the McLaughlin family ... There have been a number of incidents where we have been fighting and arguing ... [On the Friday night in April] I went towards the end of Dalmenie Drive at Gertrude Place to jump over the big metal fence at 17 Gertrude Place. I always went the back way to get into the flat without anyone seeing me. I cut through the close at number 17 and went up the back door. The back door was open and I went up to the top close at my mum's at number 15 ... I went straight into [Kevin's] house ... [Kevin] went over to the living room window and was pacing up and down and said 'What the fuck have I done'. He then sat down on the sofa and put his head into his hands. I asked him what he had done. I looked out and saw the police in the street and police tape. I started getting frantic and asked him what the fuck he had done and we started to scuffle ... I heard him go out onto the landing and chapping my mum's door ... I hid on the bed with the duvet over me. The last time I saw Patrick that night was when we got out the car. I didn't see him arguing with anyone and I didn't hear any arguments. I did not see George McLaughlin at any time that night. At no time did Patrick come into Kevin's. I did not take any weapon with me and I did not hide anything in Kevin's ... I told [the police] that Patrick was fighting with Kevin. I lied during my statement because I didn't want to get the blame of hitting him because we just had a scuffle ... The police told me that they were investigating the murder of George McLaughlin and that was the first time I heard ..."

The Crown evidence

[8] No transcripts of the evidence given during the trial were available to the Appeal Court. An outline is contained in the trial judge's report and supplementary report. What follows are selected parts of the evidence paraphrased from that outline.

A trail of blood

[9] Forensic experts gave evidence about a trail of blood which began on the pavement outside the tenement entrance at 15 Gertrude Place, Barrhead, where the appellant lived. The trail led from number 15, past numbers 13 and 11, and up the stairs to the top landing of number 9 where the deceased's stepson James George lived, and where the deceased was found. The blood-staining became heavier on the way from number 15 to number 9.

Eye-witness evidence

[10] Margaret George (54) lived with the deceased at 13 Gertrude Place. She described a poor relationship between her family and the Shields family. She gave evidence that on 3 April 2011, at about midnight, the appellant created a disturbance outside and threw something at their flat. When Mrs George looked out of the window, the only people she saw were the appellant and his mother Janice Agnew. These two were outside 15 Gertrude Place. She did not see Thomas Shields. There was an unfriendly exchange between Mrs George on the one hand, and the appellant and his mother on the other. The appellant shouted "You're getting murdered". The deceased then left the flat, saying that he was going to sort them out. He went out of the tenement close at number 13. Mrs George left the window to dial 999. On her return to the window, she saw the deceased running in the direction of number 11, being chased by the appellant who fell. Mrs George also saw Janice Agnew pulling the appellant into their tenement entrance (number 15). Mrs George described the appellant as very small: Thomas Shields was a much bigger person.

[11] Gary Donaghey lived at 13 Gertrude Place. At night on 3 April 2011 he heard shouting. He looked out of the window and saw the deceased and a small hooded figure (whom he did not identify) about six feet apart at number 15. A woman was calling to the small figure to come back. The deceased ran towards numbers 13 and 11, fell, got up again, then continued to run. Initially he was chased by the small hooded figure.

[12] Jamie Young also lived at 13 Gertrude Place. He gave similar evidence. He saw two men in a close confrontation near number 15. One was the deceased, and the other a hooded man who was the more aggressive. The hooded man was shouting aggressively and moving towards the deceased.

[13] Janice Agnew (60), mother of the appellant and Thomas Shields, gave evidence which, according to the trial judge, was inconsistent and conflicting. In particular, her evidence in cross-examination was inconsistent with what she had said in evidence in chief. Amongst other things, she said that she saw the deceased coming from the tenement at number 13 wielding a machete. The deceased and the appellant were close to each other in an aggressive confrontation. The appellant fell over before she got him back into the tenement. The appellant may then have gone to Kevin Lawniczak's house, as she did not see him in her own house. Her son Thomas Shields had last been seen in the car with her daughter Tracy. Mrs Agnew said that she received a text from Tracy saying "He's got a lock-back". After the attack on the deceased, her son Thomas Shields said to her "What have I done?" and "I've done it, Ma, I've done the bastard in". Her evidence suggested that her son Thomas Shields was responsible for the murder, not the appellant.

[14] Tracy Shields (30), the sister of both the appellant and Thomas Shields, also gave conflicting and inconsistent evidence. Again, her evidence in cross-examination was inconsistent with what she had said in evidence in chief. Amongst other things, she said that the appellant had been at a party and had been drinking. She and the appellant's mother Janice Agnew were asked to remove the appellant from the party because of his drunken condition. She drove the appellant, Thomas Shields, and Janice Agnew home in her car. The appellant and Janice Agnew went into the tenement at number 15. Thomas Shields remained in her car. They drove round the corner and Thomas Shields got out of the car. In cross-examination, Tracy Shields gave evidence suggesting that Thomas Shields was responsible for the murder, not the appellant.

The deceased's blood on the appellant's jeans

[15] As the trial judge noted in his supplementary report at page 18:

" ... the jeans, which were by concession worn by the appellant on the night in question, were found to have a drop of the deceased's blood on them in a position and manner which was indicative of that blood having dripped onto the lower leg of the jeans from above. That evidence entitled the jury to reach a view that the appellant was in close proximity to the deceased at a point when the deceased was dripping blood, and since it was clear that the deceased had no injuries other than the stab wounds referred to above, this meant that the appellant could have been in that situation only after the deceased had been stabbed. The forensic scientist also confirmed that all of the clothing of the incriminee [Thomas Shields] and of Mr Lawniczak was forensically examined, and the blood of the deceased was not found anywhere other than the jeans of the appellant.'

The defence evidence

[16] The appellant gave evidence on 14 December 2011. As noted by the trial judge at page 19 of his supplementary report:

" ... [the appellant's] position, while denying that he ever had a knife in his possession, was that he did in fact come into conflict with the deceased at the point where the Crown contended that the deceased was stabbed, but that in the confrontation there, he did not stab him in the area of his neck and upper chest, but rather that he punched him in that area, and that he did so while drunk and angry. He confirmed also the Crown case about the chasing of the deceased and about he himself falling around the area between numbers 11 and 13 Gertrude Place, and about the deceased [falling] and then continuing to run on down the road. He confirmed that he had some blanks in his memory on the evening in question, although he contended that he was clear that he had not stabbed the appellant and that he didn't think that he was injured or bleeding in the encounter. So far as the police interview is concerned, he claimed that he 'talked a lot of nonsense because I didn't know what was going out' and he said that he did not know why he had told the police lies. He was unable to explain how he had the deceased's blood on his jeans and confirmed that he had done nothing to him which would have made him bleed. He was equally unable to explain how there would be a blood trail in the street or how the murder weapon ended up in the flat [of Kevin Lawniczak] that he admitted that he went to after his confrontation with the deceased. The Crown put its case to him and he denied that [Thomas Shields] had given him his knife, or that he had felt threatened by the deceased and stabbed him in a drunken rage ..."

[17] Thomas Shields, the incriminee, did not give evidence. Counsel explained that Thomas Shields had given a defence witness statement dated 5 December 2011 (quoted in paragraph [7] above]. The defence lawyers were aware of its contents. Thomas Shields had been cited as a defence witness at the appellant's trial. He had attended every day of the trial. On Friday 9 December 2011 he was brought into court and shown to a witness as a "body production". However on Monday 12 December 2011, he did not attend court. When contacted by the appellant's defence agent by mobile telephone, he made it clear that he did not intend to come to court. The defence lawyers discussed the situation. It was anticipated that if Thomas Shields were to be led in evidence, he would deny any involvement in the murder. His defence statement dated 5 December 2011 provided no basis for his incrimination. But the defence had an adequate basis for his incrimination in the evidence of his mother Janice Agnew and his sister Tracy. Ultimately the decision was taken by the defence lawyers not to try to bring Thomas Shields to court; not to request the court for an adjournment or a warrant; and even if Thomas Shields were unexpectedly to attend court, not to call him as a defence witness, as it was felt that his evidence would not assist the defence case. As was agreed in a Joint Minute entered into between the Crown and the defence:

"11. ... on [Monday 12 December 2011] those representing the appellant held a consultation with him. It was decided not to call the incriminee to give evidence as it was anticipated that he would deny any involvement in the murder, and thereby shift the focus of responsibility for the murder onto the appellant. This decision was taken having regard to said Thomas Shields' precognition of 5 December 2011.

12. Neither the court nor the Crown were requested to assist in procuring the attendance of the incriminee at court."

The jury speeches and charge

[18] Transcripts of the jury speeches were not available to the appeal court. However the judge's charge makes it clear that the defence position was that the appellant's older brother Thomas Shields had committed the murder, not the appellant. At pages 36 to 38 of the Charge, the judge told the jury:

"In this case the accused has lodged a Special Defence of Incrimination. That was read out to you at the start of the trial and you have a copy of it to take with you to the jury room. The only purpose of a Special Defence is to give notice to the Crown that a particular line of defence may be taken. That, in this case, Defence of Incrimination does not take away from the requirement of the Crown to prove the case against the accused beyond reasonable doubt. The defence do not need to lead evidence in support of an incrimination to any particular standard. You just consider the evidence which relates to the incrimination along with the rest of the evidence, and if it is believed, or if it raises a reasonable doubt, then an acquittal must result. The accused does not require to prove the incrimination.

In this case the accused is saying that if this crime was committed, it wasn't committed by him but by his brother, Thomas, hence he is not the perpetrator, and it is for the Crown to meet that defence and to satisfy you beyond reasonable doubt that it should be rejected. In support of the defence, and you will be well aware of this and I simply repeat it in its essence so that you understand it, the essence of the defence is that there is, it is said, an alleged confession by Thomas Shields by phone to his mother, and it is said that there are other facts and circumstances, which you have heard in detail, and which point in the direction of Thomas Shields who, the defence say, is a man of bad character.

On the other hand, the Crown challenges that evidence and say that Thomas Shields is a convenient smokescreen and has been placed there by the family to deflect evidence away from his brother and to cause confusion in that evidence, and that the evidence pointing to him does not bear close scrutiny. You should look at all of the evidence, consider the points made for and against the incrimination and then decide if the Crown has proved its case and has proved guilt beyond reasonable doubt. But the important thing about incrimination is that it is there to give the basis of a line of defence which may be taken and it does not take away from the Crown's burden of proof nor from the accused's presumption of innocence ..."

Further, at pages 44 to 45, the judge continued:

" The defence position will be equally clear to you. The accused, while accepting that his earlier denials to the police were false, has given evidence of total denial in relation to the murder and has said that any contact between him and the accused man was in the context of a fistfight and involved no weapon or stabbing by him. He contends, therefore, that he is not responsible for this death and that the murder was committed by another assailant who has encountered the deceased near to number 9 Gertrude Place and there stabbed him to death. And as part of the defence case, it is presented to you that this second person is his brother, Thomas, and in that connection I have already referred to the competing arguments about that incrimination ..."

The verdict

[19] On 15 December 2011, the jury found the appellant guilty of charge 1 (unanimous) and of charge 2 (majority). The appellant was sentenced to life imprisonment with a punishment part of 16 years.

Exculpatory affidavit by Thomas Shields delivered shortly after conviction

[20] About a week after the trial had ended, the following letter dated 22 December 2011 from Messrs Aamer Anwar & Co enclosing an affidavit by Thomas Shields dated 21 December 2011 was delivered by hand to the appellant's Glasgow agents:

"Dear Sirs,

Mr Patrick Shields

We refer to the above named individual for whom we are advised you act.

We enclose herewith an affidavit taken by our Mr Sloan of your client's older brother Thomas Shields. Mr Shields attended to provide said affidavit in support of an anticipated appeal against his brother's conviction. We understand that a defence of incrimination was run at trial, and the affidavit fully supports this.

Mr Shields advised that he is now desperate to help his brother, and recognised that his failure to appear as a witness at trial may well have hindered the defence of incrimination. He also advised that he gave a statement to your Ms Radcliffe, but he stated that he was less than forthcoming in providing the full truth of the matter when he did so.

Mr Shields can be contacted at the address as stated within the affidavit, or through our office. For what it is worth, and without knowing any of the facts of the matter, Mr Sloan was of the view that Mr Shields seemed entirely credible in his account.

If there are any matters you feel have not been broached within the body of the affidavit, Mr Shields is happy to clarify any matter by way of a further sworn statement, and we would be happy to facilitate this ..."

[21] The affidavit enclosed was in the following terms:

"1. My name is Thomas Shields, and I was born on 5^th September 1981. I am 30 years of age at present and I reside at 11 Stewartfield Gardens, East Kilbride, G7 4GN. I am the older brother of Patrick Shields.

2. Patrick has been convicted of the murder of George McLaughlin, who died on 3^rd April 2011 following an incident at Gertrude Place in Barrhead. Patrick was not guilty of this murder, and I know this because it was in fact me who caused the death of George McLaughlin.

3. George McLaughlin is known to me as there have been problems between his family and my own for some time now. In the past he has threatened to murder me, assaulted me, chased me with a scythe and other weapons, and has also threatened Patrick and chased him too.

4. I was terrified of George McLaughlin. He told me he had served a life sentence for murder previously, and that he wasn't scared to go commit murder again. His partner, Margaret, had threatened me too, saying that George would murder me. I was so scared of him that I had taken to carrying a knife, something which I had never done in my life prior to all of this happening.

5. The circumstances of what took place are as follows: I had been at a party in Barrhead. I had been drinking and had taken a couple of valium. My brother and I left the party. Our sister Tracy Shields picked us up. My mother, Janice Agnew, was with my sister when she picked us up. This would have been somewhere between 11 pm and 12 pm in the evening.

6. My sister drove us to 15 Gertrude Place to drop off Patrick and my mother. We dropped them off, and my sister and I drove round to Dalmeny Drive. My sister stopped and got out of the car, though I cannot recall why. I was needing the toilet so I went into a close in Dalmeny Drive. I came out of the close and I saw Margaret George, who stays in the close next to my mother. She was at her living room window, and was shouting at my mother and my brother who were in the street outside their house. Margaret George is the partner of George McLaughlin.

7. I walked to the top of the lane and to the street behind my mum's house. This was to avoid Margaret George seeing me, as I had bail conditions precluding me from entering Barrhead. I had been charged with a breach of the peace and threatening Margaret George, so I didn't want her seeing me. I also knew that her son, James George, was going to come and fight with Patrick. There is a history between our two families, spanning the past year or so.

8. I walked down the street at the back of my mother's house, I am unsure of the name of the street. I walked to the fence behind number 9 Gertrude Place, and climbed the back fence. I went in the back door at number 9, and I was standing waiting in the close at number 9. James George stays in number 9 and I believed that he was going to come down and attack Patrick.

9. The front door of the close then burst open and George McLaughlin came in the door himself. He had no top on and charged straight at me. He started attacking me, trying to assault me. There was a scuffle between us.

10. I had a lockback knife in my back pocket, and I pulled it out of my pocket. He still had a hold of me and was trying to grab me around the throat. He was trying to pull the jacket over my head. I unfolded the knife and then I just remember stabbing him, lunging forward with the knife. I don't remember how many times I stabbed him, it all happened that quick. I think I connected with him above the shoulder but I cannot be sure as I cannot remember. There was no-one else within the close when this took place. My brother Patrick was nowhere within sight.

11. He let go of me, and I panicked and ran out of the back close door. I didn't see what happened to him, whether he fell, or whether he stayed on his feet. I jumped over the fence again and I walked up a couple of houses away. I went into the driveway there and there was a wheelie bin. I took my jacket off and put it in the bin. It was a long black Henry Lloyd jacket. I kept the knife in my hand. I cannot remember if there was blood on the knife.

12. I climbed the fence at the back of my mum's house, at 15 Gertrude Place. The back door was lying open and I went up to the top landing where my mum stays. Her neighbour is Kevin Lornzak, I am not sure how you spell his name, and his door was lying open. He is a friend of mine, as well as my mother's neighbour. I knew the police would be coming up to my mum's, so I went into Kevin's house. I didn't see anyone in the house until I got into the living room. Kevin was there himself. This would have been ten to fifteen minutes after the stabbing took place. Twenty minutes at most.

13. I looked out the window and saw that there were police outside. I told Kevin what I had done. I gave Kevin the knife and he said he would get rid of it. I don't know what he did with it. I stayed within Kevin's house for a while after. The police lifted me for breach of bail after Kevin had gone into my mum's house to see what was happening. I had hidden under the covers in Kevin's child's bedroom. The police found me there.

14. I was taken to the police office and charged. I may have been questioned that night about the murder, but I cannot remember if that is the case. I cannot remember if they asked me anything about the stabbing as I was intoxicated through the drink and the valium, so I do not remember if I gave a statement or was asked about the incident.

15. I believe that I may have told my mum that I had been responsible for the stabbing. That is how my brother and his lawyers would have known to run the defence of incrimination. I also gave a statement to a solicitor from Doonan McCaig solicitors regarding this. I don't really recall what I said to her though, as I was on heavy painkillers after having my jaw broken in an assault. I don't think I gave them the full story however.

16. I had received a citation to appear as a witness at my brother's trial, but I was too scared to attend, so I didn't appear. I never gave evidence and I never got the chance to tell the court what I had done.

17. I would wish to say that I never intended to kill George McLaughlin. I also never went to number 9 looking for George, as he doesn't even live there. I was only in close number 9 to try and stop James George from assaulting my brother. I never thought that he would die as a result of what happened, and I didn't know that he had until I was released from Paisley Sheriff Court on the Monday.

18. I believe that I was acting in self-defence. I was terrified that he may have a weapon somewhere on his person, and I was terrified that he might be about to try and use it on me. He had always carried knives for as long as I had known him, and I had seen him with all sorts of weapons at various times. In my terrified state, I lashed out with the knife. I genuinely believed he was trying to kill me.

19. I am telling the truth about all of this and I am not lying to try and protect my brother. I am fully aware of the potential consequences for myself, however I just want the truth to be known, that being that my brother Patrick Shields did not commit the murder for which he has been convicted."

Submissions for the appellant

[22] Counsel accepted that it was for the appellant to show that there was a "reasonable explanation" why the evidence was not heard at the trial. Reference was made to Campbell and Steele v HM Advocate 1998 SCCR 214, page 241 et seq; McIntyre v HM Advocate 2005 SCCR 380, at page 381B; and Mills v HM Advocate 1999 SCCR 202 at pages 207-208. In the present case, there was a reasonable explanation. There had been a fundamental difference between the position adopted by Thomas Shields in his precognition dated 5 December 2011 and that adopted in his affidavit dated 21 December 2011. In his precognition, he denied being at the locus of the murder, whereas in his affidavit he accepted that he had been there. Thus the tactical decision made on Monday 12 December 2011 had not been made in the knowledge of the whole circumstances (cf Campbell cit sup page 242B). It had not been a properly informed tactical decision.

[23] Counsel accepted that there was no indication in the affidavit why there had been an apparent change of heart on the part of Thomas Shields. The appellant's special defence of incrimination had been based not upon Thomas Shields' defence statement dated 5 December 2011, but upon the precognition of the appellant's mother Janice Agnew dated 7 November 2011, and information obtained from his sister Tracy Shield (who had not given a precognition).

Submissions for the Crown

[24] The advocate depute submitted that Campbell and Steele cit sup at page 242 did not assist the appellant. The appellant knew that he was saying that his brother had carried out the murder. He therefore knew that his brother should be able to give information about the murder. What he did not know was whether his brother would be willing to give such information. As was observed in Campbell and Steele, that did not amount to a reasonable explanation for the brother's evidence not being put before the court. As for McIntyre cit sup and Mills cit sup, neither was a murder case, and neither provided assistance in the present case. In the result, no "reasonable explanation" had been put forward. The appellant had not satisfied a fundamental condition of section 106(3A) of the Criminal Procedure (Scotland) Act 1995. His appeal would therefore inevitably fail, and should be refused at this stage.

Discussion

[25] As Lord Justice General Cullen observed in Campbell and Steele v HM Advocate 1998 SCCR 214 at pages 241F to 242C:

" ... an explanation cannot be a 'reasonable explanation' if it is not adequate to account for the fact that the witness's evidence was not heard. Thus, in a case where the defence take a deliberate decision not to lead a witness at the trial for technical reasons, it is difficult to see how this could provide a 'reasonable explanation' when it was sought at the stage of appeal to lead the evidence which could have been led at the trial. It would not be enough to say that at the trial the appellants' advisers were of a different mind. In that connection the advocate depute referred the court to the decision in England in R v Shields and Patrick which related to section 23(2) of the Criminal Appeal Act 1968. That subsection required the court to receive evidence if a number of conditions were satisfied, one of which was that the evidence was not adduced at the trial 'but there is a reasonable explanation for the failure to adduce it'. In that case the court observed that it would seldom, if ever, be a reasonable explanation for not calling a witness that the risk of calling him was at the time considered too great and counsel advised that he should not be called. Accordingly, in my view, it would be difficult, if not impossible, for evidence to be admitted at the stage of an appeal if a tactical decision was taken not to adduce it at the trial. Likewise, if the explanation were merely that the appellant was not aware of the existence of the witness; or, where he was aware of the existence of the witness, he was not aware that he was able or willing to give evidence of any significance, this would hardly provide 'a reasonable explanation'. But it might be different if the appellant also could show that at the time of the trial he had no good reason for thinking that the witness existed, or, as the case might be, that he would give the evidence in question. Thus much might depend on the steps which the appellant could reasonably be expected to have taken in the light of what was known at the time. The underlying intention of the new legislation is that the court should take a broad and flexible approach in taking account of the circumstances of the particular case ..."

[26] In the present case, the appellant lodged a formal notice (the special defence of incrimination) naming his older brother Thomas Shields as the person who had murdered the deceased, based upon the precognition of his mother, Janice Agnew, and information obtained from his sister Tracy. Janice Agnew and Tracy Shields were led as Crown witnesses. Each gave evidence implicating Thomas Shields as the murderer. The appellant's agents therefore knew that, if their evidence was to be believed, Thomas Shields was in a position to give significant evidence about the murder, even if he was not willing to give it (and in this context we would observe that it is rare for an incriminee to admit responsibility for a murder in the witness-box). At the very least, the agents knew that, once Thomas Shields was in the witness-box, everything which Janice Agnew and Tracy Shields had said implicating him (including his alleged confession to the former: see paragraph [13] above) could be put to him in cross-examination on behalf of the appellant, and his responses and demeanour would then be available for the jury's assessment. A denial might be discredited or disbelieved. A refusal to answer a question on the basis that it might incriminate him might assist the appellant's case. A significant concession or admission might inadvertently be made. A negative assessment might be formed by the jury of his general demeanour and motivation. Thus in the present case, bearing in mind the guidance in Campbell and Steele cit sup, the defence lawyers' decision not to lead Thomas Shields as a witness in case he damaged the appellant's defence was indeed a tactical decision and does not, in our view, amount to a "reasonable explanation" within section 106(3A).

[27] We should add that, in this context, we do not consider Thomas Shield's physical absence from court on Monday 12 December 2011 (the day when the defence were considering whether or not they should lead him as a witness) to be material, for several reasons. First, we were advised during the appeal hearing that the appellant's agents were in direct contact with Thomas Shields by mobile telephone. Secondly, it would have been an easy matter for the appellant's defence lawyers to explain the situation to the court and to ask either for an adjournment in order to attempt to bring him to court, or for a warrant to apprehend him and bring him to court. Thirdly, we were advised in the course of the appeal that, even if Thomas Shields had arrived unexpectedly at court, the defence lawyers had decided not to lead him in evidence. Accordingly the decision was a purely tactical one which does not in our opinion satisfy the terms of section 106(3A).

[28] That is sufficient for the disposal of this appeal. However it is perhaps worth observing obiter that the description of events given by Thomas Shields in his affidavit dated 21 December 2011 is inconsistent with inter alia the deceased's blood being found only on the appellant's jeans, and with the trail of blood described in paragraph [9] above. That trail of blood indicated that the stabbing of the deceased had taken place on the pavement of Gertrude Place outside tenement entrance number 15, with the injured man then making his way past numbers 13 and 11, and going up the stairs to the top landing of number 9 where he was eventually found. By contrast, Thomas Shields in his affidavit describes a stabbing taking place inside the tenement close at number 9. As the trial judge noted at page 18 of his supplementary report:

" ... [The pathologist, Dr Turner] ... pointed out that the close of number 9 did not appear to be an area where injury was inflicted because of an absence of any particular blood loss or a change to the pattern, and the consistent and increasing heavy trail of blood from Block 15 to the point of collapse was consistent with the attack being a single encounter at the start point of the trail. That evidence becomes significant now in the light of the incriminee's affidavit, especially since the bleeding became significantly heavier in the area of the steps leading up to number 9 and before the deceased entered the close."

Decision

[29] For the reasons given above, the appellant has in our opinion failed to demonstrate a reasonable explanation as to why Thomas Shields' evidence was not heard at the trial in terms of section 106(3A) of the Criminal Procedure (Scotland) Act 1995. The appellant is therefore unable to lead any fresh evidence, and the appeal falls to be refused.