Lord Osborne

Appellant: D. Finnieston, Solicitor Advocate; Balfour & Manson, Edinburgh

Respondent: Ms. A. Grahame, A.D.; Crown Agent

1 February 2006

[1] The appellant is Neil Daniel Murray. On 15 September 2004, after a six-day trial at the High Court in Glasgow, he was convicted by majority verdict of murdering Duncan Stirrat Harrison on 3 April 2004 in a motor vehicle then parked in Greenend Place, Springboig, Glasgow by discharging a shotgun at him and shooting him in the head and neck. On the same date he was sentenced to life imprisonment, backdated to 14 April 2004, with the punishment part set at 18 years.

[2] The appellant has appealed only against his conviction. The Note of Appeal contains four grounds of appeal as follows:

"(1) That the learned Trial Judge erred in repelling a submission under

Section 97 of the Criminal Procedure (Scotland) Act 1995.

(2) That the learned Trial Judge erred in his assessment of the

aforementioned submission in that he failed to properly examine the quality of the various adminicles of evidence which formed the strands in what was an entirely circumstantial Crown case.

(3) That the learned Trial Judge misdirected the Jury in so far as he failed

to give the Jury a specific direction that the evidence of Crown Witness Michelle McCreery had to be accepted as credible and reliable before a conviction could follow.

(4) That the learned Trial Judge misdirected the Jury by failing to give

adequate directions as to the nature of circumstantial evidence and the approach to be taken to such evidence in order to find corroboration in the Crown case."

[3] At the close of the Crown case Mr. Finnieston, solicitor advocate for the appellant, made a submission of no case to answer in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. That submission was repelled by the trial judge. The first two grounds of appeal are directed at that decision.

[4] In his submissions to this Court Mr. Finnieston took these two grounds together. He reminded us that at the trial there was no dispute that the deceased had been murdered as alleged in the charge. The issue was whether the Crown had proved that the appellant was the culprit. In regard to that issue the Crown case was a purely circumstantial one; there was no evidence directly implicating the appellant. Mr. Finnieston then reminded us of the various pieces of evidence by reference to the trial judge's Report. They are fully set out in the Report and are as follows:

" On 3 April 2004 about 6 or 6.10p.m. the deceased, Duncan Harrison, left his home in Dalton Street, Parkhead, Glasgow where he lived with Michelle McCreery. He was driving a silver Mercedes, registered number V920 HLS. Shortly before 7.30p.m. he phoned Michelle McCreery at Dalton Street and said: 'I'm wi' Neil in Barlanark' Michelle McCreery understood that he was using his mobile phone from within the motor car. That is what he usually did. Harrison said he would return home to eat about 9.00p.m. He did not however return. Michelle McCreery said that the only Neil she knew and to whom she thought the deceased was referring, was the appellant, Neil Murray. She was, however, positive that Harrison had said that he was on his own when he made the phone call, and that she had told the police that. The relationship between the deceased and Neil Murray was nothing but fraternal. They were in each other's company quite a lot.

Between 7.15 and 7.45p.m. on the same day the deceased's car was driven up Greenend Place in Springboig and parked opposite number 28 at the end of that road. The car had only two occupants, one in the driver's seat and one in the passenger seat, according to two eye-witnesses, Allison Wynn and Rose Ronald, who were respectively in numbers 15 and 21 Greenend Place. Miss Wynn looked out from the front bedroom window on the first floor and Mrs Ronald looked out from the ground floor sittingroom at the front of the house. Their evidence did not entirely coincide. Both however heard a bang which Miss Wynn thought was a shot. Miss Wynn said that it was some minutes after the car had stopped that she heard the shot. She clearly identified a man in his twenties, six foot or so in height and of thin build getting out backwards from the front passenger seat of the car. That description coincided with the appearance of the appellant in the dock of the court. The jury, of course, could see his height and build when he stood up every time the case was called.

Mrs Ronald could not say from her angle of view whether it was a man or a woman since the figure was coming out of the car backwards. The two witnesses agreed about what the figure was wearing, namely, a blue top with a hood. Both said that the person ran away down the road.

The car remained where it had come to a stop. About 8.50p.m. Mrs Ronald's partner went across to the car and discovered the victim, Duncan Harrison, seated upright in the driver's seat, but apparently dead. The police were then summoned and arrived about 9.15p.m. D.S. Mateer opened the driver's door and determined that life was extinct.

Greenend Place is a cul-de-sac. The occupant of number 28 is one Francis Romeo. He gave evidence that he had lived there for twenty one years. For the last six or seven years he had been in a relationship with the accused's mother, Elizabeth Murray, who stayed at 28 Greenend Place from time to time. Earlier on 3 April 2004 she had been in his house.

The deceased's partner, Michelle McCreery, who was the mother of three of his children, said that in recent weeks before his death, Duncan Harrison had feared for his life. He made reference to receiving a bullet in the back of his head for something it was said he had done. He would, she said, never have driven into a cul-de-sac like Greenend Place, unless he had been with someone he knew.

The deceased was shot in the left side of the neck. The police firearms expert, David Mitchell, was of opinion it was by the discharge of one shot from a twelve bore single-barrelled shotgun, the barrel of which had been shortened.

The pathologist, Dr McAdam, confirmed that when the weapon was discharged, the barrel was very close to the skin of the neck. She and the police firearms expert were of opinion that the person who fired the shot was in the front passenger seat or perhaps was leaning over that seat from outside the car. It was very unlikely that the shot was fired from either of the rear seats of the car. The trajectory of the shot was backwards and downwards. The person who fired the shot, if he was sitting in the front passenger seat or leaning over it from outside the car, would have received a spray of blood from the shotgun wound.

The forensic scientist, Marie Campbell, took tapings from within the car. Tapings from the front passenger seat and the upright back of that seat were taken and disclosed skin and dandruff material. On further scientific examination they revealed the appellant's DNA. In the front passenger seat area the only other traces of DNA came from John Blair, the registered owner of the car, and the deceased. The skin and dandruff would have been deposited fairly recently, according to Ms Campbell, by which she meant, within hours or perhaps a day or two, depending upon how much use had been made of the front passenger seat. The car had four doors.

On the inside of the front passenger metal door handle was a fingerprint. It could clearly be seen with the naked eye in the light of a torch. Subsequently, it was found to be identical (in respect of a minimum number of sixteen ridge characteristics) with the left middle finger of the appellant. It was not established in evidence how recently the fingerprint had been deposited on that surface.

On 6 April 2004 Michelle McCreery met the appellant at the house of Marion Broadfoot who is an aunt of the appellant. Michelle McCreery asked him if he had shot her partner and he said that he would never have done that. He went on to say further that when Duncan Harrison picked him up in the silver Mercedes in the evening of 3 April 2004, there was a strange looking man in the back. Harrison said that the man wanted to speak to the appellant about the John Blair thing (an assault and robbery in the Blair home involving Blair and his wife). When the appellant heard rustling, as from a bag, coming from the rear seat, he got out of the car and made off, leaving Harrison and the stranger in it. Thereafter he hid in all manner of places. He described his predicament to Michelle McCreery as 'being on the run'.

John Broadfoot - a cousin of the appellant - said that he had helped the appellant to move some of his possessions on 3 April 2003 from Hillview Street to his mother's house in Pendeen Street. At that time the appellant was wearing denims and a blue T-shirt. Before teatime they went home together to Calvay Street where they were to look after John Broadfoot's grandmother. He and the appellant went their separate ways that evening. John Broadfoot however let the appellant back into the house when he returned, perhaps about 12 midnight. Broadfoot thought that the appellant was wearing a white tracksuit when he returned. At some point therefore the appellant had changed his clothing.

On 10 March 2004 (it was accepted that this was an error and should be 10 April 2004) two police officers in plain clothes in an unmarked police car made a visit to a flat in Caroline Street, Parkhead. The purpose of the visit was to see David Broadfoot Wark. As they left the car they noticed, on looking up, a female at the window. As she saw them, she turned away to talk to someone in the room. Alerted by her reaction, they decided to try to cover the exits from the stair. When they did so, they saw someone running through the back courts. One of them shouted to the person to stop and also shouted 'police'. In response to these shouts the person turned round. Both police officers, on seeing his face, recognised him as the appellant. He then made off towards Edenwood Street and the officers gave up the chase.

By 6 April 2004 the appellant was aware of Harrison's death and of the police investigation. By 10 April he was fully aware that the police wanted to speak to him, which was why on 13 April 2004, accompanied by his solicitor, the appellant surrendered himself at Shettleston Police Office."

Mr. Finnieston submitted that taking all that evidence together it amounted to no more than suspicion that the appellant was the culprit. It was not sufficient to justify the appellant being convicted of the murder. The trial judge should therefore have withdrawn the charge from the jury and acquitted the appellant.

[5] In our opinion there was quite sufficient evidence in law to justify the appellant being convicted of the murder and the trial judge was therefore correct to repel the submission of no case to answer.

[6] The third ground of appeal focuses on the evidence of Michelle McCreery. She was the deceased's partner. Her evidence covered a number of matters, as recorded above. This ground of appeal, however, is concerned with her evidence in its entirety. As the trial judge explains in his Report, her evidence could not be viewed as a whole. Both the Crown and the defence relied on passages in her evidence. The trial judge's view was that it was therefore unnecessary and would have been inappropriate for him to have given the direction set out in the ground of appeal. Mr. Finnieston appeared to have accepted those comments because, before this Court, he restricted himself to submitting that the trial judge should have directed the jury that if they did not accept the evidence which Michelle McCreery gave as to what was said by the appellant in their conversation on 6 April 2004, then there was not sufficient in the rest of the evidence to entitle them to convict. Mr. Finnieston said that that piece of evidence was so important and significant that it was really at the centre of the case. If it was not accepted, the rest of the case was so weak that there was not enough in it to justify the accused being convicted.

[7] We do not accept that submission. As Mr. Finnieston acknowledged, such a direction would not have been normal in a circumstantial case. In a case such as this where there was evidence of a considerable number of relevant circumstances it is not realistic or helpful for a trial judge in his charge to go through all the many possible permutations of circumstances that the jury might or might not accept. Moreover, while we are prepared to accept that this particular piece of Michelle McCreery's evidence was important, we do not accept that it was of such importance that if it was not accepted, there was not sufficient in the rest of the evidence to justify the appellant being convicted.

[8] The fourth ground of appeal is a more general criticism. Taking us through the trial judge's charge Mr. Finnieston said that there were no specific directions as to how the jury should approach the evidence in a circumstantial case such as this when deciding whether the Crown had proved their case. There should have been such directions. Moreover, the trial judge might have assisted the jury in their assessment of the evidence. He might have said, for example, that the jury might think that some of the circumstances might not be of much significance unless they could be linked to the appellant.

[9] In response the Advocate-Depute pointed out that closing speeches to the jury by both the Crown and Mr. Finnieston had been made on the same morning as the trial judge gave his charge. In the Crown speech the Advocate-Depute had detailed the circumstances which she relied on and the inferences to be drawn from them. Mr. Finnieston, on behalf of the appellant, had in his speech detailed the circumstances that he relied on, he criticised the Crown approach and he put forward the inferences or non-inferences which he submitted the jury should draw. For the trial judge then to go into all the circumstances again was unnecessary. If he had tried to assess the circumstances in any way, that might have been dangerous. The charge was adequate and did not amount to a misdirection.

[10] In his general directions as to how to assess the evidence the trial judge said this to the jury:

"It is for you to decide what value should be attached to particular pieces of evidence. So it is for you to decide the relative importance of different pieces of evidence and it is for you to decide what inferences and conclusions you are prepared reasonably to draw from such evidence as you accept."

In the context of his directions on corroboration he said this:

"It (corroborated evidence) may take the form of only circumstantial evidence given by various witnesses where the several circumstances when taken together support the inference that the accused is guilty of committing the crime. I shall return to that aspect of corroboration later in my charge."

Later in his charge, when dealing with the Crown case, the trial judge said this:

"Now, the evidence led by the Crown and indeed the only evidence in the trial is wholly circumstantial and in that respect this case is somewhat unusual but not exceptional and circumstantial evidence, about which I have given you directions in relation to corroboration, is to be contrasted with direct witness evidence."

Then, after reminding the jury that the question for them was whether the Crown had satisfied them that it was the appellant who was the culprit, he continued:

"The advocate depute has referred to a range of circumstantial evidence; the question for you is whether you can infer from that evidence that the accused was Duncan Harrison's assailant."

[11] In our opinion apart from what might be called the standard directions which a trial judge would normally give to the jury in every case, the directions which should be given will depend on the particular circumstances of the case. In the particular circumstances of this case we are unable to say that the trial judge's directions on the matter in question were inadequate such as to amount to a misdirection. No doubt some judges might have said more as to the approach to be taken by the jury in dealing with the circumstantial evidence but we are not persuaded that it was necessary to do so here. We have only to add that we agree with the Advocate-Depute that it might have been dangerous if the trial judge had suggested to the jury that some parts of the evidence might seem of more significance to them than others.

[12] For these reasons each of the grounds of appeal fails. The appeal is refused.