| [18] For the appellant, Mr Jackson submitted that McLeod was clearly a very weak and a vulnerable person who would have found it difficult to resist the type of pressure which he described in a compelling account. The threat of being ridiculed as a gay person would have been serious and frightening, not only because of the culture at the time but also because his mannerisms had been a problem for him throughout his life. It was understandable that he would co-operate with the police in order to get home: it was unrealistic to expect him to appreciate the difference between the effect of detention and that of arrest. It would have been easier for him to have blamed the appellant, but he did not do so, nor did he give notice incriminating him. Cross-examination had shown that he was a weak type of person who had little understanding of what was going on and did not know which way to turn. This helped to explain how he changed his position repeatedly at the trial. There was considerable doubt about the evidence which placed him near the locus on the night of the incident. Mrs Norma Wallace, the precognition officer, in a note on information given by Smith on 7 August 1989 (Prod 67), had said that, since there was no apparent connection between the appellant and McLeod, she had always doubted whether McLeod was the second man. The evidence of PC Shirley Marnock, to which the additional ground of appeal relates, that she had seen him in Gordon Street was entirely unsatisfactory. McLeod had no motive for giving false evidence now.
[19] We have to consider in the first place whether the evidence given by McLeod 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. What is the evidence of McLeod of which the jury was ignorant? It is plain that to a very large extent his evidence before this court is a repetition of evidence which he gave at the trial. We note that the trial judge directed the jury that McLeod's evidence was crucial to the Crown case, and that they would not be entitled to convict the appellant unless they reached the view that he was telling the truth when he gave evidence that he saw a knife in the appellant's hand. He also directed them that they required to be extremely careful in weighing his evidence. This was because of the way in which his evidence had swung between different versions; the fact that he had been a co-accused; and the fact that, when he gave evidence on the second day, he had been charged with perjury. If the jury followed these directions, as we must assume, they considered (and rejected) the parts of McLeod's evidence in which he claimed that he knew nothing of the appellant or his involvement in the incident and that what he said to the police and in the trial to a contrary effect was not true. The Advocate depute pointed out that the only evidence which was given by McLeod before this court which was not given by him at the trial consisted of (i) further details of threats by the police to expose him as a homosexual; (ii) further allegations by the police about the appellant, namely that he was a "junkie", that he had had his girlfriend on the game, that he had beaten up his mother, and that he was a thief; and (iii) his account of the conversation between two police officers during the lunchtime break on the first day of the trial. Quite apart from any question as to whether this evidence made any material difference to the evidence which the jury rejected, there are serious doubts as to its credibility. The Advocate depute pointed out, by reference to the transcript of the police interview, that McLeod had accepted that he was bisexual. In evidence to this court he stated that, as a result of his father's behaviour, everyone assumed that he was gay (page 493). In these circumstances it is highly doubtful, in our view, whether any alleged threat of exposure of McLeod as a homosexual would cause him to feel the need to resort to perjury. It is equally doubtful whether the alleged statements by the police about the character and conduct of the appellant would have that effect. As regards what transpired during the lunchtime break, there was force in the submission of the Advocate depute that it was not credible that the conversation which he overheard would have been sufficient of itself to cause McLeod to return to court and incriminate an innocent man on a murder charge. McLeod admitted to this court that he did not know if the police officers knew who he was (page 703). [20] Even if we examine the evidence of McLeod to this court as a whole, we consider that it is clear that there are considerable objections to its credibility. In his affidavit, on the strength of which the court decided to hear his evidence, he gave a detailed account of events, including the statement that following his acquittal he gave statements to both the Crown and the defence "telling the truth - that I did not know Stuart Gair and was not involved with him on 11 April 1989" (paragraph 39). However, the Crown precognition, (Prod 48), which was taken on 23 August 1989 before he gave evidence, shows that he gave an account which was diametrically opposite to that. It was to the same effect as the evidence given by him in the afternoon of the first day and on the following morning. It included an account that the appellant had told McLeod that each of them should deny that he knew the other; and that the appellant had threatened McLeod in prison. Thus there can be no doubt that in swearing to the truth of his affidavit McLeod perjured himself. [21] The contents of the precognition, which McLeod now claims are lies, are of more than passing interest. In the first place the precognition includes an account of his taking part in planning the mugging of the deceased, having been with the appellant at the bus station, which does not form part of his taped interview with police officers in the early morning of 6 May 1989 (Prod. 45). The Advocate depute correctly pointed out that the precognition was taken at a time when McLeod knew there was no longer any question of his being prosecuted for the murder. In contrast McLeod had said, in regard to his statement to the police, "I was trying to make up a story so they wouldn't connect me to the case". We agree with the submission that the emergence of these details points to the conclusion that this was the truth about McLeod's knowledge and involvement. It is also to be noted that the precognition, followed by McLeod's evidence at the trial, was to the effect that the appellant was wearing white training shoes. At no stage was there any suggestion that this detail was provided to McLeod by the police. We should add that, at the time when McLeod was being precognosced, he was receiving legal advice. There is no suggestion that at that stage he was under any pressure from the police. If it was true that he had been subject to improper pressure by the police, he had ample opportunity to complain about that, or at least maintain the position which he had already adopted in his judicial declaration. However, he did not do so. In these circumstances the contents of precognition, which form the background to the evidence which he did give in support of the Crown case, cast substantial doubt on the truth of his revival of the allegation that his evidence resulted from improper pressure by the police. We should add that we attach no weight to the note made by the precognition officer on 7 August 1989. She was aware that in the taped interview (Prod 45) McLeod had mentioned two men who had not been present (Harkinson and "Charlie"). In any event she was not then aware of the whole evidence which was available to the Crown at the trial, including the precognition of McLeod taken on 23 August 1989. more.... |
