APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Hamilton
Lord Sutherland
[2005HCJAC69]
Appeal No: XM1/03
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
in referral by

THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION
in the cause
STUART MITCHELL GAIR
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
Appellant: Jackson, Q.C., Miss Livingstone; John Macaulay & Co, Glasgow
Respondent: Stewart, A.D., Gianni; Crown Agent
7 June 2005
Introduction

[1] On 30 August 1989 the appellant was found guilty of a charge of murdering Peter Dewar Smith. According to the terms of charge, in North Court Lane, Glasgow he struck the deceased on the chest with a knife or similar Instrument, whereby he sustained injuries from which he subsequently died on 29 April 1989.

[2] The case for the Crown relied on evidence given by William McLeod that he accompanied the appellant and the deceased into the lane, which runs from the south side of St Vincent Place (part of St Vincent Street) in the direction of Royal Exchange Square. The appellant pulled out a knife. The witness heard a moan from the deceased, at which point he ran away. The Crown also relied on the evidence of a number of witnesses who identified the appellant as having been in the company of McLeod in or near the lane at or about the relevant time. Evidence was also given by two police officers that the appellant and McLeod were later seen walking together in Gordon Street, a few streets away from St Vincent Place. Examination of a pair of denims worn by the appellant showed smears of blood at the mouth of the right hip pocket. There was evidence that when the denims were handed over to the police the appellant stated that they had been washed in carbolic. On the back of the heel of the appellant's left training shoe there was a large directional spot of blood, which was of a blood group common to the appellant and the deceased. Bloodstaining on the pavement and balustrade at the corner of the lane and St Vincent Place pointed to the deceased having come from the lane to the public toilets on the south side of St Vincent Place, near its junction with Buchanan Street.

[3] Following the reference of the appellant's case to this court by the Scottish Criminal Cases Review Commission, the appellant presented grounds of appeal in which it is maintained that there was a miscarriage of justice, on the basis of the evidence of persons which was different from, or an additional to, the evidence which they had given at the trial. Following argument the court decided, for the reasons given in its opinion dated 26 February 2003, that it should hear this evidence, namely that of McLeod, Brian Morrison, David George Cairney Smith and Alan John Gillon, together with the evidence of Hector McLeod Wood who had not given evidence at the trial. In reaching that decision the court had before it affidavits sworn by McLeod, Morrison, and Gillon. In due course on a number of dates the court heard the evidence of these witnesses, with the exception of Smith, who were led by the appellant, and the evidence of a number of other witnesses adduced by the Crown. The court was informed by Mr Jackson, who appeared for the appellant, that it had not been possible to trace Smith. The court was also asked to uphold an additional ground of appeal, which was received at a late stage in the history of the appeal. This ground of appeal related to the evidence given by one of the police officers to whom we have referred.

[4] In this opinion we consider in the first place the evidence given in this appeal by McLeod, Morrison, Gillon and Wood. It is for the appellant to satisfy the court as to the "significance" of that evidence, for the purpose of section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995). Subsection (3A) also requires there to have been "a reasonable explanation" of why that evidence was not heard at the trial. Since McLeod, Morrison and Gillon gave evidence at the trial, there also requires to be a reasonable explanation why evidence which "is different from, or additional to" evidence which each of them gave at the trial was not so given, and that explanation has to be supported by independent evidence (subsection (3C)).

[5] As to the "significance" of the evidence of the four witnesses we bear in mind that, as was pointed out by the court in Kidd v H.M. Advocate 2000 JC 509 at paragraph 23, the question is not simply whether such evidence is significant but "whether it is of such significance as to lead to the conclusion that a verdict returned in ignorance of it must be regarded as a miscarriage of justice". cf Cameron v H.M. Advocate 1991 J.C. 251 at page 261. The court also stated in Kidd at the same paragraph that it was clear, as a matter of common-sense, that the 'significance' of evidence included considerations as to its relevance, materiality and importance. It was also plain that it included its quality in point of credibility and reliability. As to the latter the court expressed the opinion, in paragraph 24, that it was sufficient that the appeal court was satisfied that the additional evidence was capable of being regarded by a reasonable jury as both credible and reliable. At the same time the court pointed out that the cogency of the additional evidence was of critical importance. more....