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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General
Lord Mackay of Drumadoon
Lord Abernethy
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[2009] HCJAC 2
Appeal No: XC231/06
OPINION OF THE COURT
delivered by LORD
ABERNETHY
in
APPEAL AGAINST CONVICTION
by
DAVID McBRIDE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: Findlay, Q.C., Forbes; McClure Collins, Edinburgh
Alt: Young, A.D.; Crown Agent
9 January 2009
Introduction
[1] The appellant is David McBride. On 4 April 2006 after a seven day trial at the High
Court in Paisley he was convicted as libelled on the
following charges:
"(1) between
10 December 2004 and 10 June 2005, both dates inclusive, at the
Antiques Warehouse, Unit 3A Yorkhill Quay, Glasgow and elsewhere, you were
concerned in the supplying of a controlled drug, namely Cocaine, a Class A
drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to
another or others, including in particular to Alexander Andrew Joseph Docherty,
formerly of Flat 6, 61 Croftside Avenue, Glasgow and Philip Mangan, c/o
Strathclyde Police, Stewart Street, Glasgow in contravention of
Section 4(1) of said Act: CONTRARY
to the Misuse of Drugs Act 1971, Section 4(3)(b);
(3) on
10 June 2005 at the Antiques Warehouse, Unit 3A Yorkhill
Quay, Glasgow you did assault Alexander Andrew Joseph Docherty, formerly of
Flat 6, 61 Croftside Avenue, Glasgow, present a loaded shot gun at him
and repeatedly shoot him on the body and you did murder him and you did
previously evince malice and ill-will towards him."
Charge (2), a charge of breach of the peace, had earlier been
withdrawn by the Advocate depute.
[2] On
charge (3) the appellant was sentenced to life imprisonment with effect
from 19 July 2005.
The court made an order in terms of section 2(2) of the Prisoners
and Criminal Proceedings (Scotland) Act 1993 setting the punishment
part at eighteen years. On
charge (1) the appellant was sentenced to three years imprisonment with
effect from 19 July 2005, that sentence to run concurrently
with the sentence of life imprisonment.
[3] The appellant
has now appealed against his conviction for murder. The note of appeal contains three grounds of
appeal but Mr Findlay, the appellant's senior counsel, explained that
these were essentially directed at just one issue, namely, the way in which the
trial judge had dealt with the evidence in his charge to the jury, which was
mistaken in one respect and lacked the necessary balance. As a result a miscarriage of justice had
occurred.
[4] There was no
dispute that the deceased, Alexander Docherty (familiarly known as Doc), had
been murdered at the time and place and in the manner described in the
charge. The issue was whether the person
who murdered him was the appellant. The
Crown case was that it was. The defence
case was that it was Philip Mangan, the only other person present at the
time. To that end a notice of
incrimination naming him and a notice of intention to attack his character had
been lodged by the defence.
The trial judge's
report
[5] In his report to this court the trial
judge stated as follows:
"Both
Alexander Docherty and Philip Mangan were cocaine addicts. Latterly Alexander Docherty (who was
familiarly known as 'Doc') supplied Philip Mangan but both were supplied by the
appellant over a substantial period. By
the time Alexander Docherty was murdered, both he and Philip Mangan were in
debt to the appellant. In Alexander Docherty's
case the sum was thought to be about £2,000.
In Philip Mangan's case it was about £450. Throughout June 2005 the appellant pressed
both men to pay their debts but he did so, if I might put it this way, in a hot
and cold fashion. This is borne out by
the text messages he sent to Alexander Docherty. These are reproduced in Crown Production 16 ...
and provide the basis for the allegation found proved by the jury that the
appellant previously evinced malice and ill-will towards Docherty.
Philip Mangan was a crucial witness
in the trial. He had been a successful
businessman and even, according to his former wife, a manufacturer of
furniture. Latterly his business lay in
antiques and mostly in furniture. Unit
3A at Yorkhill Quay was jam packed with furniture and the like, but of
somewhat variable quality. For about 18
years Mangan had been addicted to cocaine.
This led to a steady decline of his business which some years before the
murder had been transferred to his wife.
From a portakabin within the Unit he carried on some transactions but
there, mostly it appeared, he met and smoked cocaine with Alexander Docherty. It might be said that because of his
addiction he had fallen on somewhat evil days.
On 10 June 2005 the appellant, according to Philip
Mangan, came to the Antiques Warehouse about 6.30 pm. He drove
there in his green Vauxhall Vectra car which he parked outside. Between 7.00 pm and 7.15 pm, Mangan spoke to Alexander Docherty
in private on the phone. Alexander Docherty
said he would speak to the appellant. So
Mangan gave the phone to the appellant and left to go to the Unit next door
where he unsuccessfully attempted to raise money from the tenant in order to
pay in full his drug debts. When he
returned to his own Unit the appellant said he had spoken to Alexander Docherty
and that Docherty was coming down. This
caused great surprise to Mangan. About
10-15 minutes later Alexander Docherty arrived.
There followed a friendly conversation between Docherty and the
appellant with Docherty sitting on the floor of the portakabin, the appellant
sitting in one chair and Mangan in the other.
All seemed very pleasant. The
appellant had paid all of Docherty's bill.
So Docherty owed money directly to the appellant and the appellant asked
Mangan to get the money from Docherty.
At some point the appellant went out
to his car. When he returned, he stood
just inside the door of the portakabin.
He said: 'Doc', which as I have said was Docherty's nickname. In his hand, he held in extended fashion a
double barrelled, side by side, sawn-off shotgun. There was no verbal threat of violence. The appellant then discharged the first
barrel into Docherty's right thigh from a distance of between 3 and 6
feet. As he fired the second barrel
Docherty said: 'Davie. No, please.'
The second shot scuffed the back of Docherty's left arm and entered the
left side of his chest with fatal results.
Death thereafter was rapid. The
appellant then turned to Mangan and said:
'And I still want my money. You
are next.' According to Mangan, the
appellant's face was rigid, black with rage and he was obviously very
angry. With that, the appellant left the
premises. His car was timed leaving
through the security gates at the Quay at 8.30 pm. Twenty-seven hours later the car was found,
apparently abandoned, in Garthamlock in Glasgow. When examined for firearms discharge residue,
none was found within it. Thirty-eight
days later, by arrangement with his solicitor and the police, the appellant
surrendered to the Petition warrant for his arrest. Since 19 July 2005 he has remained in custody.
As soon as the appellant left, Philip
Mangan called the emergency services.
His first call was timed at 8.30 pm. He also phoned his former wife and, several
times, the appellant to whom he got through on one occasion. He said to the appellant: 'You killed him', to which he got a
non-committal response. The first police
officer who arrived on the scene, PC McCready, said that Mangan was, 'Very
shaken. Very upset. He appeared to be in shock. He was visibly shaking and his face was
white'.
Mangan was incriminated by the
appellant and cross-examined at length by defence counsel. Despite the vigorous and skilful
cross-examination, which included exploration of Mangan's association with
prostitutes in the portakabin to whom he there supplied cocaine, Mangan adhered
to the account I have set out above. As
was his right, the appellant did not give evidence."
The accuracy of the report was not
in dispute. Two points should be
added. First, not long after the phone
call to Docherty mentioned in the report, when Docherty had not turned up,
Mangan said he was asked by the appellant to phone Docherty again and see if he
was coming. Mangan did this and Docherty
said he was just getting into his car, or a taxi. Shortly thereafter Docherty arrived. Second, the murder weapon was never
recovered.
The judge's charge
[6] The
charge was a relatively short one. It
ran to only 19 pages. No issue is
taken with any of the directions in law.
The judge did not enter into the evidence in any detail. It was not disputed that he was perfectly
entitled to take that course. Towards
the end of his charge, however, he did mention two aspects of the evidence. Just before that he had made it clear to the
jury that the question for them was not "Who fired the gun that killed
Alexander Docherty?" but whether the Crown had satisfied them beyond reasonable
doubt that the person who shot him was the appellant. He also directed them that in determining
that question their assessment of Mangan's evidence was critical. They had to decide whether, having considered
all the evidence, they found him a credible and reliable witness. Upon their decision on that matter might
depend their answer to the question he had just posed.
[7] The
charge then continued as follows:
"And perhaps I should turn to look
at two other aspects of the evidence.
Mr Findlay is, of course, correct when he says that Mr Mangan
is crucial to the case and, as I have already indicated, you must make your own
assessment of him as a witness. In his
speech Mr Findlay asked you to imagine or picture what Mr Mangan was
like on the night of 10th
June, 2005. Since the
learned Advocate Depute mentioned it in his speech, but it was not commented on
by Mr Findlay in his speech, I think I should remind you that what the
first witness on the scene after the shooting, Police Constable McCready, said
about Mangan's appearance, admittedly as I have said after the shooting, was
this: he was very shaken, very upset, he
appeared to be in shock, he was visibly shaken and his face was white. That, at least, is my note for what it is
worth. What you make of the description
by the police officer is entirely a matter for you. Mr Findlay also said correctly that you
must proceed on the evidence in this trial and only on that. May I remind you in that connection that the
answers given by witnesses constitute the evidence in the trial, not the
questions. Several times yesterday
afternoon Mr Findlay in his speech referred to Mr Mangan luring
Alexander Doherty to his death in the antiques warehouse. I suggest that you should consider from your
notes or your recollection of the evidence whether that is a fair description
of what happened that night. According
to my notes the accused, David McBride, came to the warehouse about 6.30pm.
Mangan said he contacted Doc, Alexander Docherty, by phone between seven
and 7.15 and spoke to him in private.
Doc said, according to Mangan, he would speak to McBride so he, Mangan,
gave the phone to McBride and left to go to the unit next door in order so
speak to Mrs Hughes about borrowing some money to help pay his drug
debt. When he returned to his own
warehouse unit McBride told him that he had spoken to Doc and that Doc was
coming down. In cross-examination Mangan
said that it came as a great surprise to him when McBride told him that Doc was
going to come down. Now, these are just
my notes, they may not accord with your recollection and if they don't prefer
your own but if my notes are right do you think it can fairly be said that
Mangan in these circumstances lured Doc down to the warehouse unit? Indeed, you might think there is no evidence
that he did so. That is all I want to
say about the evidence, ladies and gentlemen, it is for you to make your own
assessment of it all and, in particular, the character of Philip Mangan,
whether he is credible or reliable."
Submissions of counsel
[8] After noting that the
judge had not reviewed the evidence in any detail in his charge Mr Findlay
said that towards the end he had referred to two aspects of the evidence. Mr Findlay accepted that he was entitled
to take that course but the obvious danger in doing so was that the jury would
see those aspects as having an importance which was out of balance with the
rest of the evidence. That is what was
likely to have happened here. Both
aspects that the judge had mentioned were detrimental to the appellant. Moreover, in dealing with one of them he had
misrepresented the defence position and this also had resulted in unfairness to
the appellant.
[9] The
first aspect which Mr Findlay dealt with (which was actually the second
aspect mentioned by the judge) related to passages in his closing speech to the
jury the previous day, in which he had said several times that it was Mangan
who had lured Docherty to his death. In
his charge the trial judge had suggested to the jury that they should consider
whether that was a fair description of what had happened. He then summarised from his own notes the
evidence that Mangan had given on this matter and concluded by asking the jury
whether, if his notes accorded with their recollection, it could fairly be said
that Mangan lured Docherty down to the warehouse unit. He then added: "Indeed, you might think there is no evidence
that he did so." Mr Findlay said
his position before the jury had been that the jury could accept Mangan's
evidence that he made both telephone calls to Docherty from the warehouse on
the fatal evening and they could accept that following those calls Docherty had
arrived at the warehouse and had been shot shortly thereafter. They should, however, reject Mangan's explanation
that he gave the telephone to the appellant and that it was in response to what
the appellant had said to him that Docherty had come to the warehouse. If the jury accepted Mr Findlay's
position, they could infer that Docherty had come to the warehouse in response
to what Mangan had said to him. The
issue was somewhat coloured by the use of the word "lure" but in fact it was
the Advocate depute who had
first used that word in his speech to the jury to describe what the Crown said
the appellant had done. If Mangan had
been in the dock (instead of the appellant) the Crown would no doubt have said
that a sinister inference could be drawn on that view of the evidence. The evidence would not in itself have been sufficient
to convict Mangan but it would have called for an explanation and would have
been an adminicle of evidence, a circumstance which was capable of a sinister
inference.
[10] The other aspect of the evidence which the trial judge
mentioned in his charge related to the picture Mangan presented at the time of
the murder. Mr Findlay had referred to
this on a number of occasions in his speech to the jury. The trial judge had taken the point that was
being made to have been the physical state Mangan was in at the time when the
murder was committed and he went on to remind the jury that the first witness
on the scene after the shooting, Police Constable McCready, had described
Mangan as very shaken, very upset and apparently in shock. But the trial judge had mistaken the
position. Mr Findlay had not been referring
to the physical state Mangan was in at the time of the murder, but to the kind
of man he was around that time and the lifestyle he followed, as opposed to the
more respectable picture he had sought to present of himself in the witness box. That was clear from what Mr Findlay had
said in his speech to the jury as part of his wide-ranging attack on Mangan's
credibility. The jury were well aware
that that had been the nature of his attack on Mangan all the way through the
trial but this passage, in what was a concise charge, had been given towards
the end and shortly before the jury retired.
It did not accurately and fairly represent the defence position and may
have left the jury with the wrong impression of what that position was.
[11] In these circumstances the court should conclude that the
charge lacked the necessary balance and was unfair to the extent that it
amounted to a miscarriage of justice.
The appeal should be allowed and the conviction for murder quashed.
[12] In response the Advocate depute reminded us that there was no
evidence that Mangan had lured Docherty to the warehouse. The evidence of Mangan, which had been
accurately summarised in the charge, was the only evidence led on this
matter. On several occasions in
cross-examination it had been put to Mangan that he had persuaded Docherty to
come to the warehouse and Mangan had denied it.
There was no other evidence to support the view that Mangan had lured
Docherty to the warehouse.
Mr Findlay had not suggested to the jury that they could infer from
other facts that Mangan had lured Docherty.
He had told them it was a fact.
In these circumstances the trial judge was quite right to bring the
matter to the jury's attention in the way he did. It was true that the Advocate depute had told
the jury that Docherty had been lured to the warehouse but that was based on
the evidence given by Mangan as to what the appellant had done.
[13] With regard to the picture Mangan presented on the night of the
murder, the Advocate
depute accepted that the trial judge had misapprehended the point
which was being made by Mr Findlay in his speech to the jury. But it did not amount to a miscarriage of
justice. Mangan had been cross-examined
at considerable length. Most of the
cross-examination had been directed at his character. There was indeed no dispute between the
parties as to his character and the judge had said nothing to deflect the jury
from Mr Findlay's general attack on Mangan. At the end of his cross-examination of Mangan
no one on the jury could have been in any doubt that the defence were saying
that he, Mangan, had killed Docherty and that the Crown case had therefore not
been proved. That was equally true at
the end of Mr Findlay's speech to the jury.
Discussion
[14] In our opinion the trial
judge was well entitled to invite the jury to consider whether
Mr Findlay's assertions in his speech to them that Mangan had lured Docherty
to his death in the warehouse were a fair description of what, on the evidence,
had happened. The relevant passage in
the charge opens with a reminder to the jury to proceed on the evidence and
only on that. That is the context for
his later remarks. There was indeed no
evidence that Mangan lured Docherty.
Mr Findlay submitted to us that it could be inferred, if the jury
accepted Mangan's evidence that he had telephoned Docherty on each of the two
occasions in question but rejected his evidence of what followed. We are not persuaded that that is correct,
but in any event that was not the way Mr Findlay put it to the jury. He put it as a matter of fact and he did so
on a number of occasions. In that
situation we consider that the judge was well entitled to draw the jury's
attention to the matter for their consideration. There was in our opinion no unfairness in the
way he did so.
[15] On the other matter raised in the appeal, it was accepted by
the Advocate depute that the
judge misapprehended the point Mr Findlay was making in his speech to the
jury when he had reminded them of Mangan's circumstances and lifestyle at the
time of the murder and submitted that when considering his evidence they should
picture him in that light, as opposed to the more respectable light in which he
had sought to present himself in the witness box.
[16] In his speech to the jury Mr Findlay spent a considerable
time reminding the jury of Mangan's character at the time of the murder and
stressed on a number of occasions that in assessing his evidence the jury
should picture him as he was then rather than as he presented himself at the
trial. At the time of the murder
Mr Findlay said Mangan was a man who was really at the end of the
road. He was a cocaine addict, his business
had gone and he abused prostitutes in return for drugs. He went on as follows:
"And this
may be one of the important aspects of the whole case, ... to try and picture
Philip Mangan as he was at the time."
He contrasted that with Mangan's
appearance in the witness box, looking like a business man, with a smart suit
and well-spoken, and asked the jury a number of times to picture him as he was
at the time of the murder, concluding with these words:
"You must,
please, if you do nothing else for me in this case when you assess the
evidence, picture Mr Mangan not as he is now or what he wants you to
believe he is now, but as he was."
[17] In these circumstances we consider that the Advocate depute was correct
to make the concession that he did. The
question that then arises is whether the judge's error on this matter amounted
to a miscarriage of justice.
[18] We are clearly of the opinion that it did not. The trial had lasted seven days. As was accepted by Mr Findlay, the jury
would have been well aware throughout the trial that the defence were attacking
Mangan's character on the basis of the person he was and the lifestyle he was
leading around the time of the murder and asking the jury in effect not to
accept his evidence. Equally, in our
opinion, they could have been in no doubt from what Mr Findlay had said in
his speech that the defence were asking them to picture Mangan as he was at the
time of the murder rather than as he sought to present himself at the trial. In our opinion nothing that the judge said
could have raised any doubt about that matter.
The evidence of PC McCready as to the state that Mangan was in
after the shooting was not in dispute.
Indeed, in a later part of his speech to the jury Mr Findlay said
that of course Mangan was going to be upset;
either he had just seen a murder being committed or he had just murdered
somebody. But that was not the point
that Mr Findlay had been making when he asked the jury to picture Mangan
as he was at the time and, having regard to all that had passed in the course
of the trial, we do not think that the jury could have been in any doubt about
that. The judge's mistake was, of
course, unfortunate but it did not in our opinion amount to a miscarriage of
justice.
Decision
[19] For all these reasons the
appeal is dismissed.
