APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Clarke Lord Brodie	[2011] HCJAC 19 Appeal No: XC582/09 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION UNDER REFERRAL FROM THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION by JAMES CASEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; M Mackenzie; John Pryde & Co (for Turnbull McCarron, Glasgow)

Respondent: D Young QC, Advocate depute; Crown Agent

25 February 2011

Introduction

[1] On the night of 16 September 1990, a 37-year-old club manager named Ian MacBeth was attacked as he left Invergordon Social Club with the club's takings. Ultimately he was driven in his own car, bleeding from head injuries, to Tulloch Wood near Kindeace, about four miles north of Invergordon. There he was abandoned, lying on the ground partly-clothed with his wrists handcuffed behind his back to a small tree. He subsequently died.

[2] Two men were arrested and charged with assault and robbery, murder, theft of the motor vehicle, and driving without insurance. One was the appellant (then aged 25; date of birth 24 December 1964); the other was George McNairn (then aged 22; date of birth 18 January 1968). McNairn was the first to be interviewed by the police, on 24 and 25 September 1990. He ultimately gave the police a full statement, having first requested that the tape-recorder be switched off. During his subsequent judicial examination on 26 September 1990, he made some minor amendments to his statement, but otherwise confirmed it. The appellant for his part, when interviewed by the police on 27 September 1990, indicated that he had nothing to say. When questioned later that day at judicial examination, his response was that he had talked to his solicitor and had nothing to say, although he categorically denied making a certain statement to a police officer (see paragraph [7] below).

[3] A trial took place at Inverness from 15 January to 7 February 1991. One of the productions referred to during the trial was a sketch plan prepared by Detective Constable T Mackay, showing an outline of the club building, the front entrance of the club, the rear of the club, and a trail of blood beginning about two-thirds of the way down the side of the building towards the rear, and continuing round the corner to the rear.

[4] Each accused gave evidence at the trial. No transcripts of evidence are available, as the short-hand notes were destroyed, and the practice of tape-recording trials did not begin until 1997. However the trial judge's charge and reports give an indication of the evidence given by each accused. Each accepted intending to rob the manager by snatching his takings. Each accepted that their plan had been to post one of their number as a look-out/signaller on the grassy embankment at the perimeter of the club car-park within sight of the front entrance. The look-out/signaller was to warn the other man (lying in wait for the manager at the side of the building) when the manager emerged from the front entrance and began walking round the side of the building to his car parked at the rear. But each denied intending to injure him, or knowing that the other had a weapon. Each blamed the other for the violence which had occurred.

[5] McNairn's evidence is narrated first, as he gave the first account of events at an early stage, during his police interviews.

[6] McNairn's position, which was generally consistent during police interview, judicial examination, and when giving evidence at the trial, was that he (and not the appellant) played the role of look-out/signaller. Based on the judge's charge and reports, McNairn appears to have given evidence that he was standing on raised grassy ground at the perimeter of the club car-park. He was wearing dark clothing, a stocking mask, heavy woollen socks over shoes, and white cotton gloves which were readily visible at night. When the manager came out of the club, McNairn signalled to the appellant. MacBeth walked round the corner and was attacked by the appellant and hit with a weapon which McNairn could not see. McNairn re-joined the appellant. The appellant asked McNairn for handcuffs (which the appellant had previously given to McNairn). The appellant handcuffed MacBeth and dragged him from the side of the club to the rear, where MacBeth's car was parked. At that point, the appellant again struck MacBeth, causing blood to splash out over McNairn as he stood by the rear wall of the club. The appellant put MacBeth, bleeding heavily, into the back of MacBeth's car. The appellant also sat in the back of the car, and made McNairn drive the car out to the woods. There, MacBeth was carried or frog-marched into the woods, and laid on the ground. The handcuffs were opened in order to handcuff his arms around a tree. His trousers, socks and shoes were removed. His socks were stuffed into his mouth as a gag. The appellant then hit MacBeth with a signboard which happened to be lying nearby. The two men left MacBeth and returned to the car. McNairn drove the car to Bannerman's yard, with the appellant on this occasion sitting in the front passenger seat. They left the car in the yard, and returned to the appellant's home at Caberfeidh Drive, Invergordon (where McNairn was living temporarily, having separated from his girlfriend). After changing their clothes, the appellant persuaded McNairn to return to the club to look for MacBeth's pouch containing the takings. The two men returned to the club. The appellant initially tried to enter the club, in order to "do the safe". He was unsuccessful. The appellant then found the pouch, which contained £1,260. They went back to the appellant's house. They collected all their bloodstained clothing (including the gloves and the footwear), the pouch, and a bloodstained hammer, (which McNairn said he had seen for the first time in the woods) and placed them in a black bin bag. At about 5 am the appellant persuaded his mother and grandfather to drive them to Inverness railway station. On the way, the appellant got out at Evanton and left the black bin bag at a derelict RAF house. The two travelled further south. At Perth, McNairn made an anonymous telephone call to Invergordon Leisure Centre and gave precise directions about where MacBeth could be found. The two then travelled via Glasgow to London. There they lived off the proceeds of the robbery until McNairn was arrested on 24 September 1990. The appellant was subsequently arrested.

[7] As for the appellant (again based on the judge's charge and reports), he appears to have given evidence that it was he (and not McNairn) who acted as look-out/signaller wearing the white cotton gloves, together with dark clothing, a stocking mask and heavy woollen socks over shoes. When the manager came out of the club, the appellant signalled to McNairn (who was similarly dressed, but, according to the appellant, wearing brown woollen gloves). The appellant described McNairn's violent attack upon the victim with some sort of weapon which the appellant had not known of and could not see. McNairn dragged MacBeth to his car. The appellant cradled MacBeth in his arms, and tried unsuccessfully to pull him out of the back of the car. Just before McNairn drove away, the appellant gave him his mask and gloves. The appellant then walked to a previously agreed meeting-place, namely an industrial yard at BP Nutrition situated about one mile from the club. He waited there for about ten or fifteen minutes. McNairn re-appeared in MacBeth's car, and drove into a yard (Bannerman's yard) on the opposite side of the road from BP Nutrition. MacBeth was no longer in the car. McNairn did not explain where he had been, or what he had done with MacBeth. The two men then left the car at Bannerman's yard, and walked to the appellant's home at Caberfeidh Drive. McNairn left the house again. When he returned, he was in possession of a considerable amount of money. He did not say where he had been or how he had obtained the money. The two men collected their bloodstained clothes and put them into a black bin bag. At about 5 am, the appellant prevailed upon his mother and grandfather to drive him and McNairn to Inverness railway station. En route, he asked them to stop at Evanton. He got out of the car at some abandoned RAF houses, and left the black bin bag there. He later telephoned a Mr Kernaghan and asked him to collect the bag and (according to the appellant) to keep the contents as there were items of clothing he wished to keep for sentimental reasons. The appellant and McNairn ultimately travelled to London where they lived for a period using the money McNairn had brought. On 24 September 1990 McNairn was arrested trying to withdraw money from a bank in London. The appellant returned to Alness where he was arrested on 27 September 1990. When giving evidence, the appellant denied saying to Police Constable Maxwell: "I didn't mean to do it, it was an accident."

[8] The jury were thus faced with two very different versions of events. They were also made aware of previous convictions. The appellant's previous convictions were brought out in court (as noted in paragraph 14 of the trial minutes, and page 4 of the judge's charge). As the judge explained to the jury:

" ... The object, as I understand it, of revealing [the appellant's] record was to show that so far as his previous convictions are concerned, he is not a man of violence."

The jury therefore knew that the appellant had previous criminal convictions, all at summary level, dating from 1981 to 1990, for offences such as theft, theft by housebreaking, theft by opening lockfast places, and reset, but that he had, in effect, no convictions for violence (with the exception of one minor assault charge, for which he was fined £5). The jury were also made aware that McNairn had no previous convictions.

[9] The appellant's trial counsel sought to persuade the jury to accept the appellant's account, and to prefer his evidence to that of McNairn. He invited them to conclude that the appellant was the non-violent signaller wearing the white gloves, who had neither attacked MacBeth nor travelled with him in the car to the woods: thus the appellant should at most be convicted of robbery. Counsel suggested to the jury that McNairn had inflicted the violence while wearing the brown knitted gloves, being in a disturbed state of mind as a result of previous cannabis use and troubles with his girlfriend. Counsel sought forensic evidence to support the appellant's account. Forensic scientists David Smart and Rosalind Brown had concluded in their report dated 20 November 1990 that they could not say "who wore which pair of gloves"; but counsel drew attention to the fact that there was no forensic evidence of any blood-staining on the steering-wheel of the car, from which fact counsel invited the jury to infer that the appellant must have been wearing the white gloves (and was therefore the signaller who inflicted no injuries). The trial judge referred to these matters in the following passage at pages 26B to 29B of his charge:

"What I have just said was said by Mr Robertson [counsel for the appellant] yesterday at the forefront of his submission to you. He said it is absolutely vital that the Crown prove that he, Mr Casey, was not the signaller and went with Mr McNairn to the woods at Kindeace. On the evidence, said Mr Robertson, it is plain that Mr Casey be guilty of robbery and nothing more. In any event, said Mr Robertson, is this just a robbery? If so, what is the explanation for the extraordinary events of the removal of the trousers and the application of the handcuffs? You will recall Mr Robertson saying that anyone who did this must have been in an abnormal state of mind or had great personal feelings of bitterness. Who, said Mr Robertson, was in that state of mind? Not Mr Casey, but Mr McNairn. The trouble Mr McNairn had with his girlfriend about the alleged association she had with another man, or men, had affected his mind. He took drugs, cannabis, and he had taken that during the week preceding the Sunday. This crime, said Mr Robertson, that is the murder, was not committed by a thief at all which he identified his client as, merely a thief who had only one minor petty conviction for assault for which he was fined £5. Pointing therefore to the nature of the violence Mr Robertson suggested to you that his client, Mr Casey, did not have a record for such violence, and that anyone who had committed this crime must have been in an abnormal state of mind, and the only person who was in that state of mind was the co-accused, George McNairn.

In any event, said Mr Robertson, the scientific evidence confirms Mr Casey's position, and not Mr McNairn's. He pointed to the white gloves, label production 19, in relation to the steering wheel as we see it in Crown production 17, photograph 27. Look at the steering wheel, said Mr Robertson, there is no blood found on it, and as he put it colourfully, no trace or whisper of blood there. No suggestion in the forensic scientists report that there was any blood on the steering wheel. He said, Mr McNairn said he drove the car. He said, he said to me, that he was wearing gloves throughout. He maintained, that is Mr McNairn maintained, he was the signaller that night and wore the white gloves, but, said Mr Robertson, look at the white gloves, they are saturated in blood. If he, McNairn, was wearing the white gloves, blood from them would have got on to the steering wheel. Therefore, said Mr Robertson, McNairn was not wearing the white gloves, it was Casey who was wearing the white gloves that night, and he was the signaller. Ladies and gentlemen, you would have followed that line of reasoning by Mr Robertson. I have to say the logic of it escapes me, but it is a matter for you to consider.

If Mr McNairn was not wearing the white gloves, but was, as he said, wearing gloves to drive the car, he must have been wearing the woollen gloves, label production 22. They were similarly saturated in blood. Why then was there no blood from them on the steering wheel? If anything it is right to say there is no blood at all on the steering wheel that might show that Mr McNairn was not wearing gloves at all contrary to what he said, of course. You have to look at this with care because the forensic scientist was not asked about this in his evidence. That is my recollection. While it is true to say that there is no mention in his report of blood being found on the steering wheel, he was not asked about it, and furthermore, when you look at the report you will find, this is Crown production 25, which was spoken to by Mr Smart, you will find on page 6 that with respect to the front drivers seat in that car it bore no significant blood staining on the cloth surfaces, but the plastic outer surface of the base was lightly blood smeared, and fabric marks supplied from some kind of cloth, said the witness Mr Smart, were visible in the blood. The floor mat, driving pedals, and underside of the door pocket were heavily blood smeared, and there was light blood smearing on the door pull, so there was certainly blood, as you can see it in the photographs, on the drivers seat, and the smearing was consistent with contact with some kind of cloth. In addition, of course, ladies and gentlemen, you will see from that report, and indeed from the photographs, that on the other door, that is the front nearside passenger door, there is blood on the door itself. Ladies and gentlemen, I suggest that you consider the point that was made with care. You may find that there is a logical conclusion to be drawn, in the way that Mr Robertson does, but consider it carefully, because it would appear on the evidence, it is a matter for you, that both accused were wearing gloves that night. One of them wore the white pair and one of them wore the woollen pair. The question is, who wore which? And that is, of course, the point Mr Robertson is trying to bring home to you by suggesting because the driver was wearing gloves and there are no blood stains on the wheel, and the white gloves are heavily blood stained, therefore it follows that Mr Casey was wearing the white gloves".

[10] The nature of the attack upon Ian MacBeth and the way in which he was abandoned in the woods might be thought to give rise to a classic example of concert. Certainly the trial judge gave clear and appropriate directions on the application of that doctrine. Nevertheless on 7 February 1991 the jury returned the following discriminating verdicts:

The appellant: Charge 1: guilty (unanimous) of assault, robbery and murder; Charge 2: guilty (unanimous) of theft of the motor vehicle.

McNairn: Charge 1: guilty (unanimous) of robbery (but not murder); Charge 2: guilty (unanimous) of theft of the motor vehicle; Charge 3: guilty (unanimous) of driving while uninsured.

As the trial judge observed at pages 2 and 7 of his report to the appeal court:

"[Page 2] ... By their verdict acquitting McNairn of murder and convicting him of simple robbery, the jury must have believed his evidence that he did not know that [the appellant] was armed with a hammer and that he did not expect any violence to be shown to Mr MacBeth beyond the minimal amount of force necessary to wrest the pouch from his grasp ... [Page 7] From [their] verdict I concluded that [the jury] had wholly disbelieved [the appellant's] account and substantially accepted McNairn's. In view of his admitted involvement after the initial blows upon Mr MacBeth were struck, the jury must have taken a benign and merciful view of McNairn's actions. Following my directions on the matter of McNairn's involvement they must have held that, under the strong influence of [the appellant] which did not amount to coercion, McNairn did not really intend to assist or approve of [the appellant's] violence and in particular his murderous assaults ..."

[11] The appellant received a life sentence with a recommendation of 20 years (reduced on appeal in 1993 to 15 years). In 2002, following upon the introduction of punishment parts, the sentence became one of life imprisonment with a punishment part of 11 years. McNairn was sentenced to 18 months imprisonment on charges 1 and 2, and was admonished in respect of charge 3. The trial judge commented in his report to the appeal court:

"[McNairn] had no criminal record, and [he] struck me as weak, rather pathetic and easily led."

Appeal in 1992 and subsequent referrals to the Scottish Criminal Cases Review Commission

[12] The appellant appealed against conviction, and represented himself during the appeal in 1992. He was unsuccessful, all as set out in the Opinion of Lord Justice Clerk Ross dated 3 July 1992.

[13] In 2004, the appellant made an application to the Scottish Criminal Cases Review Commission (SCCRC). The SCCRC carefully considered matters, and decided not to refer his case to the appeal court.

[14] In 2008, the appellant submitted a second application to the SCCRC. When considering that application, the SCCRC instructed a firm of forensic experts, Messrs Keith Borer Consultants, Durham, to examine the white gloves and the brown gloves in order to ascertain whether there were any traces of DNA. Messrs Keith Borer found DNA which could be attributable to the appellant on the inside of one white glove. That evidence had not been available at the trial. In the light of that evidence, the SCCRC made a referral to the appeal court.

Fresh evidence appeal in 2010

[15] The fresh evidence appeal was heard on Wednesday 17 to Friday 19 November 2010. On behalf of the appellant, evidence was led from Paul Wilson (aged 40), a forensic biologist of Messrs Keith Borer Consultants, Durham. On behalf of the Crown, evidence was led from Daniel Clarke (aged 35), also a forensic biologist, of the Aberdeen Forensic Laboratory.

The documents available to the appeal court included the following:

·       The trial judge's charge

·       The trial judge's report to the Parole Board

·       The trial judge's report to the appeal court in 1992

·       Photographs production number 16 (the body in the woods)

·       Photographs production number 17 (the social club and its environs, including bloodstains on the ground and footprints)

·       Photographs production number 18 (the abandoned RAF houses at Evanton)

·       Forensic science report production number 25 dated 20 November 1990 by David Smart and Rosalind Brown

·       Forensic science report production number 26 dated 20 November 1990 by Ian Wilkie and Christine Cranna

·       Sketch plan production number 27 prepared by Detective Constable T Mackay showing the club building and a trail of blood outside the building

·       Pathology report production number 28 dated 24 October 1990 (the examination of the body) which recorded inter alia Ian MacBeth's height and weight as 5'7" and 152lbs respectively

·       Transcript production number 29 of McNairn's judicial examination on 26 September 1990

·       Transcript production number 30 of the appellant's judicial examination on 27 September 1990

·       Typed excerpt from the notebook of Police Constable Maxwell production number 37 dated 26 September 1990

·       Transcript production number 40 of McNairn's interview with the police

·       Transcript production number 41 of the appellant's interview with the police

·       Transcript of a police interview with the appellant on 19 February 1990 relating to another case, but led by the Crown in replication to counter his assertion that he had never owned a pair of handcuffs.

·       Three witness statements by Paul Wilson of Messrs Keith Borer Consultants dated 13 May and 17 August 2009, and 13 October 2010.

·       Report by Daniel Clarke dated 9 September 2010

·       Report by Daniel Clarke and Andrew Gibb dated 10 November 2010

[16] In the course of the appeal, the Advocate depute did not seek to rely upon the content of McNairn's judicial examination (which largely narrated his statement to police officers). It appeared from the judge's charge that McNairn had, in the course of giving evidence at the trial, further qualified and amended the contents of his police statement: hence the reluctance to rely upon the transcript of McNairn's judicial examination.

[17] The Advocate depute and counsel for the appellant agreed that there was a reasonable explanation for the absence of the DNA evidence at the trial, and that the evidence of Paul Wilson and Daniel Clarke was capable of being regarded as credible and reliable by a reasonable jury. The issues in the appeal were therefore defined by counsel and the Advocate depute as the significance of the fresh evidence, and whether the trial, held in the absence of that evidence, had resulted in a miscarriage of justice.

The fresh DNA evidence not available to the jury at the trial

DNA attributable to the appellant found on one white cotton glove

[18] Both Paul Wilson and Daniel Clarke agreed that DNA which could be attributable to the appellant was found on the inside of one of the white gloves. Mr Wilson gave his opinion that the chance of its being DNA attributable to an individual other than the appellant was one in a billion (i.e. a thousand million) males, while Mr Clarke put the statistic at one in 80 million. In our view, that statistical discrepancy is immaterial in the present appeal. Each expert confirmed that his finding was of probative value and could be founded upon in court. We accept that evidence.

[19] However both experts further agreed that the fresh DNA evidence had certain limitations.

[20] First, it was not possible to say when the cellular material (such as sweat, skin flakes, saliva, or blood) containing the appellant's DNA had been deposited on the white glove. Thus it was not possible for either expert to say that the finding of the DNA meant that the appellant had been wearing the white glove at the time of the attack upon Ian MacBeth. Nor could it be said whether the cellular material had been deposited on the glove before, or after, the attack.

[21] Secondly, it was not possible to say how the cellular material had been deposited on the glove. There could have been actual physical contact between the appellant and the glove, and as the DNA had been found inside the glove, Mr Wilson was of the view that the most plausible explanation was that the appellant had worn the glove. However there could have been other methods of primary contact: for example, simply holding or handling the glove. Further, there could have been secondary transference, where an item carrying the appellant's cellular material came into contact with the glove and the cellular material was transferred to the glove, without the appellant ever having been in physical contact with the glove. Neither expert could specify precisely where on the inside of the glove the DNA had been found. Mr Clarke commented that, if the glove had been to some extent turned inside-out, there could have been secondary transference to the inside of the glove by mere contact with another article carrying the appellant's DNA. An example of such a situation could arise when the glove, having been taken off by the wearer and in the process inverted to some extent, was then placed along with other bloodstained items in the black bin bag which was left at Evanton.

[22] A third limitation of the fresh DNA evidence was that at least two people had contributed to the DNA found on the glove, but there may have been more than two contributors.

[23] A fourth limitation, acknowledged by each expert, was that a person may come into contact with an item, or wear an item, yet leave no trace of his or her DNA. As Mr Wilson put it, some people are "high shedders" of cellular material, and others are "low shedders" who leave little or no cellular material containing DNA.

[24] Both counsel for the appellant and the Advocate depute accepted that the above limitations of the DNA evidence would have been explored and made clear to the jury during the trial.

Whether McNairn could be excluded in respect of the white or brown gloves

[25] Mr Wilson gave his opinion that the DNA evidence was such that McNairn could be excluded from being a contributor to the DNA found on both white gloves and the left brown glove (the right brown glove having yielded insufficient DNA for analysis). In cross-examination Mr Wilson qualified his opinion to some extent by agreeing that, on the DNA evidence available, McNairn could not be "absolutely excluded". Mr Clarke, for his part, explained that as a result of (i) the low levels of DNA detectable, (ii) the unknown number of contributors to the DNA, and (iii) some degradation of the DNA found, it was impossible to reach any conclusion about the exclusion of any individual which would have probative value in court. McNairn was merely one of thousands of people whose DNA did not qualify them - on the basis of such DNA evidence as was available - as contributors to the DNA on the gloves. To name McNairn specifically as someone who could be excluded was to give him too much significance. In this context we prefer Mr Clarke's interpretation of the DNA evidence.

Other evidence which was available to the jury at the trial

[26] The Advocate depute analysed, under several headings, some of the evidence led by the Crown which was available to the jury at the trial.

Two bloodstained pairs of gloves

[27] Both the white cotton pair and the brown woollen pair of gloves were significantly bloodstained. Both pairs had left bloody imprints on Ian MacBeth's shirt. Thus, the Advocate depute submitted, each pair of gloves was incriminatory of the wearer, and neither was exculpatory. Reference was made to the forensic science report by David Smart and Rosalind Brown dated 20 November 1990, at pages 15, 20, and 21:

"... The shirt is blood saturated on both sides of the front from collar to tails, as well as at the left shoulder. Further heavy blood stains are present, mainly at the right side. There is widespread blood smearing, particularly at the upper right front, shoulder and collar, and in this area are impressions in blood of at least two different knitted fabrics, a fine one at the right shoulder and a coarser one at the right front and collar. Neither could have been caused by the lining of the deceased's jacket ...

Label no 19 ... These are white cotton lightweight gardening-type gloves, both extensively blood stained and bearing a small amount of vegetation fragments in the debris. Their blood stained fabric could be the source of the fine knitted fabric marks on the deceased's shirt ...

Label no 22 ... These are brown knitted gloves of unknown make, lightly soiled, with extensive blood staining on the fronts and backs. Their blood stained fabric could be the source of the coarse knitted fabric marks on the deceased's shirt and the blood stained sign ..."

Bloodstains on other clothing attributed to the accused

[28] Examination of the clothing attributed to the appellant and to McNairn showed that the appellant's clothing was more bloodstained than McNairn's clothing. A blood-spot on the right arm of the appellant's hooded top was consistent with the use of a weapon on the wet blood of the victim. McNairn's clothing had more of the "blood-spotting" type staining than the appellant's, which was consistent with McNairn standing near the victim when the latter was being attacked.

Evidence suggesting that two people accompanied Ian MacBeth in the woods

[29] There was evidence suggesting that two people accompanied Ian MacBeth in the woods. In particular: (a) Blood was found in the area of the driver's seat, suggesting that the driver had been in contact with MacBeth's blood prior to sitting in the driver's seat. There was also blood in the back of the car, indicative of MacBeth's having been placed there. There was a smear of blood (which had come from a gloved hand) on the rear of the front passenger head-rest. There was also blood on the front passenger side door-pull handle and window-winder handle. The back seat was heavily bloodstained. The "Puma" track suit trousers attributed to the appellant were extensively bloodstained, as if the wearer had been sitting in blood. (b) Vegetation which could have come from the woods was found at the driver's seat and at each of the other three passenger seats, supporting the inference that someone else had travelled back from the woods with the driver. Vegetation was also found on the hooded top and on the grey socks attributed to the appellant (and subsequently left in the black bin bag). Similar vegetation was found on clothing attributed to McNairn. (c) There were various pieces of evidence suggesting that although Ian MacBeth had not been able to walk from the car to the tree where he was ultimately handcuffed, he had not been dragged along the ground in the woods, but was rather man-handled by two persons and in effect lifted to the tree. In particular:

·       MacBeth had received six to eight blows to the head, consistent with being inflicted by the bloodstained hammer subsequently found in the black bin bag. He had suffered brain damage and significant blood loss. It was highly unlikely that he was able to walk after receiving those blows.

·       At the social club, MacBeth had been dragged for some considerable distance from the side of the club to his car at the rear, suggesting that he was already helpless at the club before being driven to the woods.

·       Marks found on MacBeth's arms were consistent with his being lifted and carried on both sides.

·       Drips of blood found on the ground in the woods on the way to the tree suggested that MacBeth had been carried at that stage, rather than dragged along the ground as he had been at the club.

·       Blood-stains on MacBeth's shirt (referred to in paragraph [27] above) were consistent with contact with both the white and brown pairs of gloves.

·       MacBeth had been lying on the ground when he was handcuffed to the tree. He had not been sitting or standing up. Again, that suggested that he was helpless.

All of the above strands of evidence indicated that two persons (and not one) were with Ian MacBeth in the woods.

Footprints at Bannerman's yard

[30] Footprints found at Bannerman's yard, where MacBeth's car was abandoned, were consistent with someone wearing Nicks boots with socks over them (McNairn) and someone wearing Gola trainers with socks over them (the appellant). The Advocate depute submitted that the fact that socks were still being worn at Bannerman's yard, to cover and disguise the two persons' footwear, suggested that the two persons were still acting together in the course of their criminal enterprise. The Advocate depute invited the court to form the view that, had the two become separated at the club (which was the appellant's account) with McNairn driving away with MacBeth in the car, and the appellant then walking a distance of about a mile through the town to the agreed meeting-place at BP Nutrition , then the appellant would have been highly unlikely to have made that walk in sock-covered trainers.

Footwear in the black bin bag

[31] Three pairs of footwear had been placed in the black bin bag which was left at Evanton. Such a disposal suggested that each pair was incriminatory. The footwear comprised: (i) Gola trainers (the appellant's); (ii) Nicks boots (McNairn's); and (iii) a pair of brogues (the appellant's). There was blood and mud on the socks which had been covering the Nicks boots; but the soles of the boots had grass cuttings (picked up when the socks were not covering them). There was blood and mud on the socks which had been covering the Gola trainers; but there were no grass cuttings on the soles of the trainers. The brogues had no blood or mud stains, but had grass cuttings on the soles. The Advocate depute submitted that one inference which could be drawn (an inference consistent with McNairn's evidence) was that the wearers of the footwear were together when the blood and mud were deposited on the socks covering their footwear. Then, when both pairs of socks were removed, the appellant changed his Gola trainers for a pair of brogues - although McNairn did not change his footwear - and both the appellant and McNairn went somewhere together where grass cuttings adhered to the soles of their sock-free footwear.

The items in, and circumstances surrounding, the black bin bag

[32] The appellant, his mother, his grandfather, and McNairn, agreed in their evidence that the appellant got out of the car at Evanton, and left the black bin bag at the abandoned RAF houses there. The contents of the bag were subsequently found in a bunker (together with a piece of the black plastic bag, the bag itself being found inside an abandoned house). The items disposed of in this way included a blood-stained hammer; the three pairs of blood-stained footwear referred to in paragraph [31] above; a blood-stained hooded top; and the two pairs of blood-stained gloves, white and brown. A Crown witness Mr Kernaghan gave evidence that the appellant telephoned him and asked him to go to Evanton and find the black bin bag. Mr Kernaghan gave further evidence that the appellant asked him to get rid of the bag (although the appellant himself, in his evidence, said that he had asked Mr Kernaghan to keep the contents as there were items of clothing he wished to keep for sentimental reasons.) The forensic science report by David Smart and Rosalind Brown dated 20 November 1990 gave reasoned conclusions attributing the clothing to only two persons (who, from all the other evidence, could be inferred to be the appellant and McNairn). In paragraph 9(c) of their report, the scientists list the items of clothing "almost certainly worn as a combination by the same person" (who, from body hair and fibre evidence, could have been the appellant: paragraph 12). In paragraph 9(d), they list items of clothing worn by a second person (who could have been McNairn: paragraph 13), namely:

"The grey pullover - black tracksuit bottoms - Reebok shellsuit trousers (inside) - Nicks boots - black socks (outside) were very probably worn by a second person."

In paragraph (12) they observe:

"The set of clothing in conclusion 9(c) above, found at Evanton, could have been worn by accused Casey; in addition, we believe the black tracksuit bottoms in set 9(d) to be his [i.e. Casey's] though not worn by him during the incidents."

They give their reasons for the above conclusions, based on a careful study of the accused's homes, body hairs, fibres, garment repairs and sewing thread. Thus the jury were aware that forensic scientists were of the opinion that, at the time of the attack on Ian MacBeth, McNairn was wearing a pair of black tracksuit trousers belonging to the appellant.

McNairn's telephone call

[33] There was evidence that during the journey south, McNairn made an anonymous telephone call at Perth, calling Invergordon Leisure Centre and giving precise directions about where Ian MacBeth could be found. He also requested that the police be contacted.

Alleged statement by the appellant

[34] A police officer, Police Constable Maxwell, gave evidence that the appellant, shortly after his arrest, said:

"I didn't mean to do it, it was an accident."

The appellant in his interview with the police, in his judicial examination, and in his evidence at the trial, denied ever making such a statement.

Submissions

Submissions for the appellant

[35] Counsel submitted that, at the trial, the Crown had invited the jury to accept that the appellant was the actor who wielded the hammer and the signboard, while McNairn was involved art and part only (although still sufficiently involved to be guilty of murder). In response to the Crown's approach, the appellant's trial counsel had invited the jury to accept that the Crown, in order to bring home guilt of homicide to the appellant and to identify him as the perpetrator of the violence, had to establish that the appellant was not the signaller who wore the white gloves and who did not inflict any injuries, and that the appellant did indeed take the victim to the woods. Thus, partly as a result of the way in which the evidence was presented to the jury by both Crown and defence, the question "Who wore the white gloves?" assumed considerable significance at the trial, as was demonstrated in the trial judge's charge at pages 26B to 29B, quoted in paragraph [9] above. The trial judge's report also confirms that the question was a crucial issue at the trial, as at pages 10 to 12 he notes that:

"The appellant's counsel, Mr Robertson, in his speech to the jury said that it was absolutely vital that the Crown proved that the appellant was not the signaller. (See the Charge page 26B). The signaller, it was accepted, wore the white pair and not the brown pair of gloves. It was also accepted, said Mr Robertson, that the co-accused was the driver of the car. He pointed to a photograph of the interior of the car (Production 17, photo 27), and asserted that there was 'no trace or whisper of blood' on the steering wheel. The forensic scientist's report (Crown production 25) in section iv on pages 5-8 dealing with the car, made no mention of any blood being found on the steering wheel. Producing the white gloves to the jury and waving them before them Mr Robertson drew their attention to their bloodstained state and submitted that no one wearing these gloves could have driven the car. Otherwise blood would have been found on the steering wheel. Therefore, he said, his client had worn the white gloves and was the signaller that night. He had not committed the murder.

I considered this to be seriously misleading and so I embarked on the passage in my Charge on pages 27A-29B. In the first place I took the view that it was wrong to draw from the negative, that is, the absence in the report of any mention of blood on the steering wheel, the positive, namely that there was no blood on it. For all one knew the surface of the wheel might not readily retain blood or any traces of blood. More importantly, however, it should have been established in cross-examination of Mr Smart, the forensic scientist, that the wheel had in fact been examined for blood with a negative result. That was not done. Nor was even the photograph upon which Mr Robertson relied, put to Mr Smart in cross examination.

In the second place, and more crucially, Mr Smart's evidence was that while the pair of white gloves (label production 19) was almost completely bloodsoaked, each glove of the pair of brown gloves (label production 22) was heavily bloodstained. On Mr Robertson's presentation the co-accused had been wearing the brown gloves when he drove the car. Why then had no blood been transferred from them on to the steering wheel of the car? What, in other words, Mr Robertson had produced was an obvious non sequitur, and I though it wrong to let matters rest without drawing the logical problem to the jury's attention. What he should have done was to have shown both pairs of gloves to Mr Smart and asked him in cross-examination whether, if it were the case that there was no blood on the steering wheel, that was consistent more with the driver wearing the brown rather than the white pair of gloves. None of that was done, regrettably".

[36] The question "Who wore the white gloves?" was so important that trial counsel made a determined effort to derive forensic support for the appellant's account from the fact that there was no evidence of any blood on the steering wheel (although the trial judge commented adversely on that attempt: see paragraph [9] above). The forensic evidence connected the brown gloves with the signboard, and that suggested a consistent line, namely that the wearer of the brown gloves inflicted the violence, while the wearer of the white gloves remained a subsidiary player throughout.

[37] The fresh evidence about DNA was consistent with the appellant's having worn the white gloves. That DNA evidence would have assisted the appellant's defence counsel at the trial: both accused had a motive to lie about who was wearing the white gloves, and the appellant's counsel was actively seeking forensic evidence which would support the appellant's evidence. Accordingly the fresh DNA evidence was indeed significant, and was powerful material with which to attack McNairn's account of events and to provide support for the appellant's account.

[38] Counsel referred to Al Megrahi v HM Advocate 2002 SCCR 509 paragraph [219]; Gilmour v HM Advocate 2007 SCCR 401 paragraphs [79] to [82]; D v HM Advocate 2010 SLT 85; and Pendleton v R [2002] 1 WLR 72 paragraphs [17] to [19]. In the light of the fresh evidence, the appeal court should conclude that the DNA evidence "was likely to have a material bearing on or a material part to play in the determination by [the] jury of a critical issue at the trial." If sub-paragraphs (5) and (6) of paragraph [219] in Al Megrahi were satisfied, the appellant had met the necessary test and the appeal should be allowed. While the appeal court had to exercise its judgment, it had to do so within certain constraints. For example, the appeal court did not hear all the evidence de novo, and thus could not put the fresh evidence into the context it would normally enjoy. Further it was the jury's role to act as fact-finder. It was not appropriate for the appeal court to substitute its own view of the facts. Gilmour did not detract from the guidance given in sub-paragraphs (5) and (6) of paragraph [219] in Al Megrahi. Those sub-paragraphs provided the tools for the proper assessment of the significance of the fresh evidence. If the appellant satisfied sub-paragraphs (5) and (6) - as he clearly did in the present case - then he should succeed in his fresh evidence appeal. In conclusion, the appeal should be allowed; the conviction for assault and robbery and murder quashed; and a lesser conviction of robbery substituted.

Submissions for the respondent

[39] The Advocate depute submitted that the fresh evidence was not of such significance that the jury's verdict must be regarded as a miscarriage of justice. When properly analysed and viewed in the context of all the evidence available, the fresh evidence would not have been of such a kind and quality that it would have been likely to have been of material assistance to the jury. The DNA evidence did not assist the jury to answer questions such as whether, how, and when, the appellant came into contact with the white glove, and in particular whether he was wearing it at the time of the attack. Further, the DNA evidence had to be viewed in the context of all the other evidence, from which certain inferences could be drawn. That other evidence included the following: evidence that the appellant had provided many of the items used in the robbery (although there was no specific evidence that he provided the white gloves); evidence that the appellant had been in close contact with MacBeth at a time when the latter was bleeding heavily; evidence that the appellant was close to air-borne blood; evidence that there were two attackers in the car with MacBeth when the car was driven to the woods; evidence that the two attackers were present in the woods; evidence capable of supporting the inference that both the appellant and McNairn returned from the woods in MacBeth's car; evidence capable of supporting the inference that both the appellant and McNairn returned to the social club after the attack and the trip to the woods; evidence about the disposal of bloodstained items belonging to both the appellant and McNairn in a black bin bag left at the abandoned RAF houses at Evanton (a disposal in itself giving rise to an inference that every item in the bag was incriminatory). Against that background, the DNA evidence did not have the significance necessary to satisfy the test as set out in HM Advocate v Kidd, Al Megrahi v HM Advocate, and Gilmour v HM Advocate. In particular, both sets of gloves (white and brown) were incriminatory of the wearers: both were bloodstained; both were found with the hammer; bloodstains attributable to both pairs of gloves were found on MacBeth's shirt; there was nothing about either pair of gloves which suggested that they had not been worn by an attacker, nor not been worn at the woods. The fresh evidence connected the appellant with one bloodstained glove: but it was the Crown's contention that, had the fresh evidence been led at the trial, it would not have undermined the Crown case. It would simply have provided a further link between the appellant and the offence, and between the appellant and the bloodstained items.

Discussion

The test to be applied in fresh evidence appeals

[40] Section 106(3) of the Criminal Procedure (Scotland) Act 1995 provides:

"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) and (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 ...

[41] As was explained in Al Megrahi v HM Advocate 2002 SCCR 509 paragraph [219]:

" ... the next question that requires to be addressed is the content of the proposed additional evidence, and whether its significance is such that the fact that it was not heard by the trial court could be regarded as having resulted in a miscarriage of justice. In that context, Mr Taylor [counsel for Al Megrahi] referred to Cameron v HM Advocate and Kidd v HM Advocate. In the former case the approach which the court should take in an appeal relating to additional evidence was set out in the opinion of the court delivered by the Lord Justice General (Emslie) at pp 618-619. In the latter case, part of what the Lord Justice General said in Cameron was somewhat modified. We summarise the approach adopted in those cases in the following propositions:

(1) The court may allow an appeal against conviction on any ground only if it is satisfied that there has been a miscarriage of justice.

(2) In an appeal based on the existence and significance of additional evidence not heard at the trial, the court will quash the conviction if it is satisfied that the original jury, if it had heard the new evidence, would have been bound to acquit.

(3) Where the court cannot be satisfied that the jury would have been bound to acquit, it may nevertheless be satisfied that a miscarriage of justice has occurred.

(4) Since setting aside the verdict of a jury is no light matter, before the court can hold that there has been a miscarriage of justice it will require to be satisfied that the additional evidence is not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice.

(5) The decision on the issue of the significance of the additional evidence is for the appeal court, which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial.

(6) The appeal court will therefore require to be persuaded that the additional evidence is (a) capable of being regarded as credible and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial."

[42] The test is therefore whether there has been a miscarriage of justice: cf paragraphs [23] and [24] in Kidd v HM Advocate 2002 SCCR 513 (referred to in Al Megrahi at paragraph [219]):

"[23] ... First, the governing question in any appeal based on additional evidence is whether the fact that it was not heard at the trial represents a miscarriage of justice. It is not a matter of whether the additional evidence is significant - as if that represented some absolute quality - 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. Secondly, while it is convenient to describe the judicial approach to determining whether evidence is of that significance as a 'test', it should not be forgotten that the sole test which is laid down by section 106(3) is that of miscarriage of justice. It is clear, as a matter of common sense, that the 'significance' of evidence includes considerations as to its relevance, materiality and importance. It is also plain, as was pointed out by Lord Justice General Emslie, that it includes its quality in point of credibility and reliability. None of these factors is determinative. What matters is the overall impression which is created. Thirdly, we are in full agreement with the distinction which Lord Justice General Hope drew between the trial court and the appeal court. The latter is not only different in function from the former but does not enjoy the advantages which the former has of hearing and seeing the original witnesses. Further there are inherent limitations in an appeal court determining what the former would have made of the additional evidence when considered in the context of the original evidence.

[24] For these reasons we consider that, for the purposes of this aspect of the significance of additional evidence, it is sufficient that the appeal court is satisfied that it is capable of being regarded by a reasonable jury as both credible and reliable. However, in saying that, we must emphasise the importance of the quality of the additional evidence. As we have pointed out above, the cogency of the additional evidence is of critical importance. It requires to be of such significance, in the words of Lord Justice General Emslie, 'that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice'."

[43] In the present case, it is not in dispute that there is a reasonable explanation why the DNA evidence was not heard at the trial. Further it is accepted that the evidence of Mr Wilson and Mr Clarke relating to DNA is capable of being regarded as credible and reliable. The issues in dispute are the significance of the fresh evidence relating to the DNA, and whether the absence of that evidence at the trial resulted in a miscarriage of justice.

The significance of the fresh evidence

[44] At the trial in 1991, the jury heard evidence and directions from the judge which entitled them to find both accused guilty of murder on the basis of the doctrine of concert. Yet they did not do so. They returned the discriminating verdicts referred to in paragraph [10] above, finding the appellant unanimously guilty of assault, robbery, murder, and theft of the motor vehicle; and McNairn unanimously guilty of robbery, theft of the motor vehicle, and driving without insurance. In assessing the significance of any fresh evidence, it is useful to note some of the circumstances which may have influenced the jury and led them to return such verdicts.

[45] During the trial, the jury were made aware of the accused's respective ages and the appellant's record of previous convictions. The jury had the benefit of seeing and hearing each accused give evidence. Thus they had an opportunity to assess the demeanour, credibility, and reliability of each accused. Further, the jury heard evidence about each accused's reactions and responses when arrested, when interviewed by the police, and during judicial examination. Finally, the jury heard all the circumstantial evidence including the evidence referred to in paragraphs [27] to

[34] above. Thus the jury were aware inter alia of the following:

(i) At the time of the attack, the appellant was aged 25 with previous convictions dating from 1981 to 1990 all at summary level, including offences such as theft, theft by housebreaking, theft by opening lockfast places, reset, and one minor conviction for assault. McNairn was aged 22, and was living temporarily in the appellant's house. He had no previous convictions.

(ii) The demeanour of each accused when giving evidence at the trial. For example, at page 2 of the charge, the trial judge reminds the jury:

"... You will no doubt recall the Advocate depute's reference to the demeanour of the witness in reference to the way in which he said the first named accused, James Casey, gave his evidence, and that was, as you recall, criticised by Mr Robertson [defence counsel] on behalf of Mr Casey, but the way in which any witness [gives his evidence], whether that witness is an ordinary witness, or an accused, is something that you can take into account in determining the credibility and reliability of that witness's evidence..."

(iii) Evidence that, shortly after his arrest, the appellant said: "I didn't mean to do it, it was an accident". The appellant denied making such a statement, but it was a matter for the jury to decide whether or not he said those words, and if he did, what the words meant. The jury also heard evidence that in his police interview and judicial examination, the appellant stated that he had talked to his solicitor and had nothing to say. Thus the appellant did not give his account of events until the trial. By contrast, in McNairn's case, the jury heard evidence of a full and detailed confession to the police, many aspects of which the jury might have considered were supported by subsequent forensic evidence (cf paragraph (iv) below).

(iv) All the circumstantial evidence, including the evidence set out in paragraphs [27] to [34] above. Thus the jury were aware that McNairn's evidence was consistent with many pieces of circumstantial evidence. For example, McNairn described the victim being taken in his own car by two persons (namely McNairn and the appellant); lifted or manhandled through the woods by those persons; and abandoned by those persons who returned together in the car to Bannerman's yard. That account of events was consistent with the forensic evidence relating to the two pairs of bloodstained gloves; bloodstains on clothing worn by the two accused; all the evidence indicating that two persons had accompanied the victim in the woods; and the footprints found at Bannerman's yard. Also McNairn's account of returning from the woods, changing their clothes, then re-visiting the club to find the victim's pouch (see paragraph [6] above), fitted with the findings on forensic examination of the footwear in the black bin bag (see paragraph [31] above). By contrast, the jury would be aware that the appellant's account of events was wholly inconsistent with many of these pieces of circumstantial evidence. For example, the appellant stated that the victim was driven away by one person only (McNairn), with the inference that one person only (McNairn) took the victim to the woods, abandoned him there, and returned alone in the car. That account did not match the findings made by the forensic scientists. Accordingly the jury, in order to accept the appellant's account, would require to reject or put to one side many pieces of circumstantial evidence.

[46] Against that background, while we accept that the question "Who wore the white gloves?" (or perhaps more accurately, "Who wore the white gloves at the time of the attack upon Ian MacBeth?") was presented to the jury as an issue in the trial, that issue, in the context of the case as a whole, had its place simply in the assessment by the jury of each accused's character, history, demeanour, credibility and reliability. That issue was subsidiary to the critical issue, namely who was responsible for the murderous violence inflicted upon Ian MacBeth. In the context of all the evidence, including the two different versions of events given by the two accused, the jury were invited inter alia to determine whether both accused were involved in that murderous violence, or only one, and if so, which one. On the basis of all the evidence before them, the jury returned the discriminating verdict they did in preference to finding both accused guilty of murder on the basis of concert. In other words, they answered the critical issue by finding only one man responsible for the murderous violence, namely the appellant. Accordingly the question for this court is whether the fresh DNA evidence would have had a material bearing on, or a material part to play, in the jury's assessment of that critical issue (namely, who was responsible for the murderous violence), and, ultimately, whether the fresh DNA evidence would have been of such significance that it would be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice.

[47] McNairn's position in police interview, judicial examination, and evidence at the trial was that he had been the non-violent look-out/signaller wearing the white gloves. The jury ultimately accepted that. Had the fresh DNA evidence established categorically that McNairn had not been wearing the white gloves at the time of the attack, and that the appellant had been wearing the white gloves at that time, it might well be arguable that the fresh evidence would have been of such significance that it could reasonably be concluded that it would have had a material bearing or a material part to play in the jury's assessment of the respective character, history, demeanour, credibility and reliability of each accused, and in the jury's deliberations concerning the critical issue, namely who was responsible for the murderous violence. Put bluntly, such categoric evidence would have shown McNairn to be incredible or unreliable on the question of which gloves he was wearing at the time of the attack, and would to some extent have supported the appellant's claim that he was the white-glove-wearing non-violent signaller (although the jury would still of course have to consider all the other evidence, including the matters outlined in sub-paragraphs (i) to (iv) in paragraph [45] above).

[48] However the fresh DNA evidence does not categorically establish that the appellant was wearing the white gloves at the time of the attack - far from it. As noted in paragraphs [19] to [24] above, the jury would be told that it could not be said when and in what circumstances the appellant's DNA came to be deposited on the inside of the white glove. In particular, it could not be said from the DNA evidence that the appellant was wearing the white glove at the time of the robbery. It could not be said whether the appellant had ever worn the glove (and if so, when), or whether he had simply handled the glove, and if so when and in what circumstances, or whether some other primary contact had occurred such that cellular material was left on the glove. Further, the possibility of secondary transference would be drawn to the jury's attention (i.e. the possibility that the appellant's DNA was deposited on the white glove without his having worn or touched it: for example, by contact with other items carrying cellular material when placed with those items in a bag). When considering those matters, the jury would have all the background and circumstantial evidence to take into account. For example, evidence that McNairn was, at the time of the robbery, living in the appellant's home; that some of the items used in the robbery came from the appellant's home; that the black tracksuit trousers worn by McNairn at the time of the attack were, in the opinion of forensic scientists, trousers belonging to the appellant (and thus the jury would appreciate that the appellant had lent or given McNairn at least one item of clothing which McNairn wore at the time of the attack); that after the robbery the bloodstained weapon, clothing (including the white and brown gloves) and footwear were jumbled together in the black bin bag, providing an opportunity for secondary transference.

[49] In these circumstances, we are not persuaded that the fresh DNA evidence is of such a kind and quality that it was likely that a reasonable jury, properly directed, would have found it of material assistance in its consideration of the critical issue as we have defined it in paragraph [46] above; nor have we been persuaded that the DNA evidence would be likely to have had a material bearing on, or a material part to play in, the determination by such a jury of that critical issue. The jury's verdict is consistent with their having formed the view (as they were invited to do by counsel for McNairn) that the appellant was the more experienced and more dominant of the two accused, exercising considerable influence over the younger man who was living temporarily in the appellant's house. Further, the verdict showed that the jury simply did not believe the appellant's account of events, which was inconsistent in many ways with the circumstantial evidence and the forensic scientists' findings and conclusions. Against that background, and bearing in mind the forensic scientists' opinion that McNairn had been wearing an item of clothing belonging to the appellant at the time of the robbery, namely the black tracksuit trousers, it is our opinion that the fresh DNA evidence, limited as it is, would have had little impact on the jury's assessment of the character, history, credibility and reliability of each accused, or on the jury's deliberations concerning the critical issue, namely who was responsible for the murderous violence inflicted upon Ian MacBeth. In the result we consider that the DNA evidence, with its limitations, is not of such significance that it is reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice.

Decision

[50] For the reasons given above, we refuse the appeal against conviction.