"There has been a miscarriage of justice because none of this evidence was placed before the jury."Investigative Techniques To Determine Time of Death
The Crown presented the case on the basis that the time of death was about 8 am on Sunday 28 September 2003.
That timing depended upon several pieces of evidence.
1.) The carer had left Mrs Irvine at about 7.25 am.
2.) Mrs Irvine's nephew Charles Keers heard noises coming from her home between 7.30 am and 8 am. He described the noises as a roar lasting a few minutes, and then someone running down the stairs.
3.) When Mrs Irvine was later found, she was still wearing her night-clothes and her bedside light came on when the electricity was restored (suggesting that the attack had occurred before Mrs Irvine got up, dressed herself, and went downstairs to the living-room as was her normal practice).
4.) Finally and significantly, when the deceased's stomach contents were examined, the open-textured bread of the half-roll which she had eaten for breakfast had not broken down to any great extent.
5.) The evidence of Dr Jennifer Miller of Glasgow University was to the effect that such open-textured bread was very quick to break down.
6.) The Advocate depute advised this court that the pathologist Dr Marjorie Black in her evidence gave a possible range for the time of death as between 7.30 am and 10 am.
The Crown's position (that the death occurred at about 8 am) was unchallenged at the trial, either by submission or by evidence.
Not one piece of this evidence was questioned at trial. It was simply accepted as fact. No one seemed to realise that the time of death was crucial.
Mrs McQuarrie arrived that morning at . Did Mrs McQuarrie bring in a fresh bread roll or was it a bread roll from the day before?
Mrs McQuarrie used a key to get into the house. She went upstairs and spoke to Mrs Irvine and asked what she wanted for breakfast.
She gave Mrs Irvine her breakfast in bed and said she turned on a lamp next to the bed.
She sat with her until Mrs Irvine ate her half of bread roll,jam and butter and a cup of tea. Mrs McQuarrie said that Mrs Irvine seemed fine that morning and Mrs Irvine had told her that she intended to, “have a lie in”.
Mrs Irvine’s instructions to Mrs McQuarrie were to leave the house unlocked to allow others to come in.
Mrs McQuarrie left at approx 7.25am as was the routine.Over EIGHT hours had passed from breakfast till Mrs Irvine was found dead. Who was meant to be going into give her lunch and why didn’t they? Surely 8 hours is way to long to leave someone who is frail and infirm without as much as a cup of tea?
Who were the other people that Mrs Irvine’s door was left unlocked for?
Was someone else coming in to give Mrs Irvine some lunch or to visit her? Who? She was obviously expecting someone. Yet this was never looked at.
It was said that Mrs Irvine could only get around with the use of her stair lift and zimmer frame. And that she was very frail.
Charles Keers (nephew) lived next door from his aunt. He told the court that he heard noises coming from his aunts house and said the time was between 7.30am and 8am .
He did not go and check on his aunt despite knowing that his aunt would not be running up and downstairs making a noise and that she lived alone.
During his testimony at court, Mr Keers stated that he was wakened at around on the morning of
He was wakened he explained by a commotion coming from next door, his aunts house. He said he heard someone running up and downstairs.
He said he knew it could not be his aunt because she was 91 years old and needed a zimmer frame to get around. Then he said he thought he was just dreaming and did not see anything that was happening because he looked at his dog and the dog was sleeping. So he went back to sleep.
He said he did not get up till 11-30am. He then left his house and did not come home till about 7pm. By which time he was to discover his aunt's body had been found at 4-50pm.
He knows his aunt is a frail old woman of 91yrs who was a victim of a burglary in July. He also knows his aunt can't run up and down the stairs, so whether he thought he was dreaming or not, why did he not go and check on his aunt when he got up at 11-30?
Under cross examination by Donald Findlay QC, Mr Keers was asked,
“Is it not true that you where the main suspect for about five weeks?
The answer to that question was yes.
It was also brought up in court that Charles Keers has CCTV outside his house.
Why was his CCTV turned off on the Saturday into the Sunday?
Charles Keers testified in court that on the Saturday night the night before the murder at about 7pm He saw 2 males who were together but gave the impression they were not together.
When asked if he had seen either of these men before he replied yes he had seen them before. He said he saw them in July about the time his aunt's house was broken into July 4th 2003.
Yet on hearing the noises and being aware that he says he saw these same two men he still did not check on his aunt.
It should also be noted that Keers did not call the police to say he had seen the same two men either.
An important note is that if Keers said he saw the same two men the day before the murder that he did on the day of the first break in, then he did not see Patrick Docherty.
Patrick Docherty was in prison at the time of the first break in and did not get released until Aug 1st 2003.
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 was not seriously challenged at trial and he should have been said Lady Paton at the Court of Appeal on November 4th 2009.
Yet the time of death is decided by the Crown on the say so of his TENTH statement giving the time as 8 am.
Crown 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 Procurator Fiscal.
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
Yet, Dr Marjorie Black in her evidence gave a possible range for the time of death as between 7.30 am and 10 am.
Colin Miller was the only person to say he saw Brendan Dixon and Patrick Docherty at the scene of the crime that morning.
It was proven in court that Colin Miller could not have seen the men from the location he claimed to have been at.
Which was the reason he went from being the chief witness to a suspect.
Colin Miller was the only person spotted near the scene that morning.
Mrs Paton a neighbour of Mrs Irvine, stated in court that she was up early that Sunday morning. She looked out of her window and saw Colin Miller three times.
The times were 6.00 AM , 6.40 AM, and again at 7.00 AM She knew Miller because he used her garden as a short cut.
Witness Mrs McCartney said that she saw a male about 5ft 10 to 5ft 11 from the back through Mrs Irvine’s kitchen window at that Sunday morning. (Pat Docherty is approx 5 foot 7)
She heard a male shout, “Are you there?”
Sheena Orr gave 4 statements during the inquiry before trial.
In preparation for the trial they took a precognition from her. In that precognition, she described seeing two men at Mrs Irvine's house at 21 Barward Road at about 11 am on Sunday 28 September 2003. One man was standing in the driveway of the house at number 21. A second man was coming out of the house. Mrs Orr gave a description of the man in the driveway, but was unable to give any details in respect of the second man. The police had shown her sheets of photographs, and she had selected one whom she recognised as the man in the driveway.
She stated that she had seen the first man again at about 4.30 pm, walking on the pavement away from Mrs Irvine's house. In a second statement, she referred to a book of photographs shown to her by the police. She had selected one as the first man. She subsequently told the police that the man had a blue coloured tattoo in the shape of a cross on his neck, just below his right ear.
The police subsequently ascertained that the photograph selected by Mrs Orr was one of Peter Fraser, a Crown witness on the indictment.
However as Mrs Orr's police statements were not disclosed to the defence (following the practice at the time) the defence did not receive that information.
Peter Fraser had previous convictions for violence and dishonesty, and also suffered from mental health problems. He was an acquaintance of Colin Miller's.
During the trial, the Crown led Peter Fraser as a witness. Mrs Orr was not led as a witness by either the Crown or the defence.
In preparation for this appeal, agents for Patrick Docherty took a further precognition dated 19 September 2009 from Mrs Orr. The agents also ascertained that the murder appeared to coincide with a gap of some hours in Peter Fraser's alibi.
The Crown accepted that it had failed in its duty to disclose Sheena Orr's police statements to the defence,
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. The crown denied that Fraser has a tattoo.
While the Crown had information that Peter Fraser had no tattoo, counsel referred to an affidavit from a solicitor Graham Cunningham confirming that Peter Fraser did indeed have a tattoo on his neck.
Peter Fraser had a history of serious offending and mental illness. He was an associate of Colin Miller. He had stated that he would be "pulled in" for the murder. Peter Fraser's girlfriend Samantha Strachan, lived near Mrs Irvine's house. That same girlfriend gave Colin Miller an alibi.
Lady Paton said at the appeal, "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.
Where one had a crime with no direct identification, no forensic evidence, and no direct admission (a case entirely dependent upon circumstantial evidence) then the fact that Mrs Orr had identified someone who fitted the profile of someone who might be involved, whose alibi did not work, who was connected to Colin Miller, and who was seen in the garden area at some time between 11 am and midday, was very important for Patrick Docherty
The Crown had relied upon the fact that two men were seen in the vicinity of Mrs Irvine's house the day before the murder: this sighting on the day of the murder at the locus shortly after the crime was committed was just as significant, if not more so. Tactically, any defence counsel could have found that information of value. The time of death could be said to be unclear.
Had the defence been made aware that it was Peter Fraser who had been seen in Mrs Irvine's garden at about late morning or midday, the time of death would have been explored at a consultation with Dr Jennifer Miller, to ascertain the tolerances of the time-scale. The defence would want to know how late in the day the death could have occurred. The matter would have been further explored with their own pathologist expert. Thus the non-disclosure had a material effect.
"There has been a miscarriage of justice because none of this evidence was placed before the jury."