On 3rd and 4th November 2009, I attended the appeal along with my partner and the family of Patrick Docherty.
We decided beforehand that we would get up at 6am and leave for Edinburgh early as we needed to try to find somewhere to park near the court.
We arrived at the court at 9.30 am.
We noticed that Mrs Irvine's family arrived shortly afterwards. They were approached by a member of the Crown from Kilmarnock and taken to a side room.
Another couple was there too but we did not know who they were.
Brendan Dixon's family arrived also.
Cathy Molloy from MOJO Scotland attended also.
When we went into the court, originally we sat at the back of the court. The couple we did not know sat in front of us.
An Official came over to us and asked us what case we were there for and we told them, we were then asked to move to the front of the court.
The couple were asked why they were there and they said they were there for a "nosy".
I watched as a court official put Reserved seating notices on the back row.
This was were Mrs Irvine's family sat.
The three judges were:
Gordon Jackson tried to lodge 3 additional grounds of appeal for Pat Docherty
1. Statements not disclosed.
2. Pat ‘s ID only on Resemblance ID
3. The Salduz case. There has been a decision but no opinion.
Grounds for all three were refusedThere is an Insufficiency of evidence in Pat’s case.
No Positive ID , only resemblance ID from the day before the murder. Keers said he saw 2 men acting suspiciously the day before the murder. One resembled Pat
Basically witnesses said Pat or Brendan had said certain things. A lot of gossip and innuendo about who might have done it was rife for months. It was the hot topic of conversation. Nothing concrete.
This was what they called Specialist knowledge.
Martin Robertson said Pat said, “you know who did it and then winked”
From this is the inference that Pat had specialist knowledge
Pat filed a No case to answer submission.
She gave 4 statements during the inquiry before trial.
She saw 2 men in Mrs Irvine’s garden around 11am, however in a few statements she said it was 2.30.
She ID Peter Fraser from photo’s shown to her by a police Officer called PC Gordon (waiting on his surname)
Sheena did not name Fraser as she did not know him.
The Officer was also a witness at the trial but failed to mention that he had shown Sheena any photos.
Sheena mentioned the tattoo on Fraser's neck. One of the Kilmarnock lawyers signed an affidavit confirming that he had saw Fraser up close and noted that he did indeed have a tattoo.
The crown deny that Fraser has a tattoo and tried to say it was not Fraser she saw. Lady Paton said, "Well it is clear she saw someone who was not the defendants"
Lady Paton said that Fraser should have been investigated and should have been given a hard time in the dock.
Chris Shead asked for the taped transcripts of Kevin Donald and Marie Dixon court testimony. Shead said he needed it to hear how they were spoken to at trial. While discussing why the tapes were needed, Shead mentioned the McKinnon case. To which Lord Carloway said, “McKinnon was not a 91 year old woman”. He also said that you cannot appeal a tone of voice.
This motion was refused.
Mr Jackson said there had been a breech of disclosure of some significance in this case.
The Advocate Depute was duty bound to tell the defence about Fraser but they didn't tell the defence his name at the time of the trial.
The Crown used Fraser to help convict.
QC Gordon Jackson told the Court of Criminal Appeal that the trial four years ago might have had a different outcome if the jury had known about the sighting of a tattooed man in Mrs Irvine's garden on the day of the murder.
Mr Jackson told judges Lady Paton, sitting with Lords Mackay of Drumadoon and Carloway that police had not turned over all their material about the sighting to the defence.
"I would find that tactically of value in defending this man before a jury and I would have used it," said the lawyer.
"There has been a miscarriage of justice because that evidence was not placed before the jury."
Both men also claim that the prosecution's circumstantial case in which there was no DNA link and no confessions should not have led to guilty verdicts.
They also criticise remarks made by Lord Hardie when directing the jury on points of law.
Unexplained DNA was found on the old lady. It was not Pat, Brendan’s, Colin Millers or Frasers say the Crown. they don't seem in any hurry to find out who it belongs to.Fraser was admitted to hospital with paranoia and anxiety two days after the murder.
On the second day of the appeal, Charles Keers (Mrs Irvine's nephew) turned up and it became clear that the unknown male who had turned up at court the day before to do his "nosy" was there to listen to what was happening for Keers.
Keers said at trial that he first saw Pat at the time of the first robbery. Pat was in jail when the first robbery happened. Whoever he claims to have seen could not have been Docherty.
Keers gave 11 Statements before the trial but it wasn’t till the 10th statement that he mentioned hearing any noise from his aunts house. He said he heard someone running down the stairs. Yet he never went to check on his aunt, knowing that it could not possibly be her.
Keers said he saw 2 men acting suspiciously the day before the murder. One resembled Pat
Keers was not seriously challenged and should have been said Lady PatonMrs Irvine's door was not locked to allow her nephew to come in and out it was stated. Lady Paton thought the door being unlocked after the burglarly was "odd".
While the judges refused to accept Pat’s grounds including Keer’s many statements. Chris Shead managed to get these statements taken by the Judges.
There is no dispute that Keers' statements were not handed over by the crown to the defence.
Kevin Donald and Marie Dixon were treated badly in the court but Keers and Fraser did not get the same treatment.
This was prejudice by the judge in front of the jury with Kevin Donald and there was much debate on that by Lord Carloway and Shead.
The Crown admits that It did not tell the defence the ID of Fraser.
Crown then admitted that if the time of death is established as later in the day then it would be a different story.
Dr Jennifer Moor said that bread would be digested quickly, however there is no statement from her on this, she was just asked this by the PF.
Crown admits that food digestion is an imprecise science.
Dr Marjorie Black said death occurred within 2 hours of eating. This was worked out at around 10am.
The advocate depute at trial decided on the time of death.
The Trial proceeded saying the time of death was 8am
After the crown had finished, Lady Paton asked if they wanted to now discuss the Sentencing appeal.
Jackson QC said that he wanted to wait for the outcome of the appeal on conviction, that he had never been asked to do this for many years and only ever had done it once.
Pat said he did not want to appeal his sentence, he is appealing his conviction only.
Chris Shead said he wanted to wait also on the outcome but If forced he would work on the sentencing appeal for tomorrow.
The Judges took a recess at this point to discuss it all.
Pat spoke with his lawyer and told him very strongly that he was not appealing his sentence only his conviction. He did not commit the crime and whoever did kill Mrs Irvine deserved the sentence.
The lawyer told him this might get a 5 year reduction on sentence. Pat said he didn’t care, he was not appealing it.
Jackson and the Advocate Depute began a rather loud debate between themselves about Fraser.
Jackson asked him why he thought Fraser would be of no interest to him? Would he not investigate this evidence himself if he had it before him. Crown guy said yes he would, he does not understand why it didn’t happen.
Peter Fraser, had a history of violence and drug abuse. Jackson asked him why this was not fully investigated?
They then began discussing Fraser and the other guy who Sheena Orr had said in precognition that one man was at the gate and the other was at the front door.
Jackson again said “why did you think this would not be of importance to me?”
The Crown said again he, himself would have investigated it.
Jackson said, “Let me ask you a hypothetical question” “Why was Fraser not investigated?” No reply came. Jackson said because you cannot answer that can you?
Advocate depute Alex Prentice QC, for the Crown, said the two men had been convicted on the basis of "a classic circumstantial case."
He claimed police had disclosed to the men's defence lawyers everything they were obliged to hand over, and he said the sighting of the tattooed man "did not amount to new evidence of any materiality".
The Crown began saying the time differences from Sheena Orr's statements clouded things. Jackson said no it didn’t. It was not important. What was important was the fact that two men were seen at the gate and the front door of Mrs Irvine’s home that morning BEFORE her body was found.
He said we have a resemblance of Docherty from the day before the murder yet he is convicted, not on a positive ID but on resemblance only and then in a dock ID, yet on the day of the murder there is 2 men, one positively ID as Fraser yet this was not investigated.
The Judges came back and decided that they could wait for the outcome of the appeal to see about the sentencing appeal.
Lady Paton said it was "a difficult and delicate case" and a ruling would be issued in writing at a later date.
©2009 Karen Torley