Thursday, September 8th, 2016

John Docherty v HMA [2016] HCJAC 49

John Scullion QC acted for the Crown in the appellant’s appeal against his conviction and sentence for murder. The appellant was convicted of the murder of Elaine Doyle in June 1986, on 17 June 2014. It was submitted by the appellant “the jury had returned a verdict which no reasonable jury, properly instructed, could have returned”, in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. It is an objective test to establish this, as per King v HMA 1999 JC 226, and the test is very high, as per Jenkins v HMA 2011 SCCR 575.

Lord Carloway set out the evidence that the conviction was based on, and then continued to consider the submissions made by each party in terms of the appeal. The appellant’s main complaint related to the crime scene, claiming that the police inquiry had been “inept and corrupt”. It was submitted that due to how the scene had been preserved, there had been “ample opportunity for contamination, cross-contamination and de-contamination.” It was submitted that the microscopic DNA found on the deceased’s body had come from a large area of the body, and it was not stated whether they were skin or saliva cells. There was also DNA from a multitude of other sources, including a policeman and the forensic examiners.

The appellant’s second complaint related to one of the witnesses – Mr B – who he claimed to be unreliable for a number of reasons. He was incapable of giving details about the deceased, from her age to what she was wearing, and was at one point the suspect of the murder.  It was submitted that there had been “improper pressure and influence” on Mr B to identify the deceased and the appellant. “Although the Crown claimed that Mr B had identified persons similar to the deceased and the appellant, all that could be said was that he had identified a male and a female.”

Mr Scullion submitted, on behalf of the Crown, that it was only in the most exceptional circumstances that an appeal on this ground would succeed, as per Harris v HM Advocate 2012 SCCR 234. The evidence should be looked at as a whole, with witness testimony and pieces of evidence being looked at in the context of other evidence within the case. It was submitted that “[w]here there was a sufficiency of evidence, the weight to be given to contradictions and inconsistencies was a matter for the jury”, as per Toal v HM Advocate 2012 SCCR 735. The appellant simply attacked individual pieces of evidence, rather than the persuasiveness of the case in its entirety. He went on to discuss the apparent issues with witnesses and evidence that had been pointed out by the appellant. Mr Scullion set out that there was a “coherent and compelling body of circumstantial evidence which supported the conclusion that the appellant was guilty.”

In his consideration of submissions, Lord Carloway identified that, aside from the evidence taken issue with, there were “undoubtedly other adminicles which the jury would have been entitled to regard as incriminating.”  Overall, it was felt that this was a “compelling circumstantial case” and the appeal against conviction was refused. His Lordship also concluded that the sentence of 21 years was not excessive.

A copy of the decision can be found here.

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