Her Majesty’s Advocate v. (1) Ronnie Coulter; (2) Andrew Alexander Marshall Coulter; and (3) David Shields Montgomery [2016] HCJAC 96

Application under the Double Jeopardy (Scotland) Act 2011:- Here the applicant invited the court to set aside the acquittals of the respondents in relation to the murder of Surjit Singh Chhokar in 1998 and sought authority to bring a new prosecution against the respondents in terms of sections 3 and 4 of the Double Jeopardy (Scotland) Act 2011. The background was that the first respondent was acquitted on 9 March 1999 and the second and third respondents were also acquitted after trial on 28 November 2000. The application to set aside those acquittals and bring a new prosecution against the respondents was on the basis of new evidence, largely in the form of certain admissions, which had emerged since the original trials. In relation to the first respondent the Crown pointed to admissions allegedly made by him to his sister, Margaret Chisholm, to his brother-in-law, Martin Duncan, Hugh Langford and Katelyn Finlay to whom he variously claimed that “we’ve got away with it” and “Aye, I done it”. In addition, Margaret Chisholm now stated that the first respondent had asked her to find ‘the knife’ which had been deposited somewhere between Overtown and Gowkthrapple. In relation to the second respondent there was a purported admission by him to his sister Mary Langford to whom he allegedly said “I’m out on bail. I’ve done Chhokar”. In addition, a cell mate of the second respondent stated that he had said that he and his uncle “had done a Paki”. In relation to both the second and third respondents there was new evidence from a neighbour, Carol Laing, that she had seen all three of the respondents in an attack on the deceased and Paul Rudden provided a statement to the effect that the third respondent had told him that he had been aware of a pre-conceived plan on the part of the first and second respondents to “rough up” the deceased. It was submitted on behalf of the Crown that in terms of sections 3(4)(a) and 4(7)(b) the admissions and new evidence upon which the application was based were not known to the Crown at the time of the acquittals. It was further submitted that in terms of sections 3(4) and 4(7) the admissions and/or new evidence had strengthened substantially the case against each respondent and it was “highly likely” that a reasonable jury would have convicted the respondents of the original offence on the basis of the new admissions together with the evidence which had been led at their trials (section 3(4)(c)). It was submitted that the new evidence in relation to the three respondents acting in concert was significant in relation to the second and third respondents and that it was in the interests of justice that the acquittals be set aside and that authority be granted for a new prosecution. On behalf of the first respondent a compatibility minute in relay to delay and prejudicial publicity had been lodged but was subsequently withdrawn. It was conceded on behalf of the first respondent that the purported admissions/new evidence could not have been known to the Crown prior to the acquittals and that if the admissions were believed it would substantially strengthen the Crown case. It was submitted, however, that the high likelihood criteria had not been met in relation to the admissions or the new evidence and that the application should be refused. On behalf of the second respondent it was submitted that he was not a person acquitted of the original offence as he had been convicted of an assault with a weapon but under deletion of reference to a knife and murder. It was submitted that the purported admissions/new evidence did not take the Crown case against the second respondent any further having regard to his earlier conviction. In addition, a compatibility minute was raised in which it was contended that the application amounted to an attempt to “deny the second respondent his right to freedom” under Article 5 following what had been anticipated to be a final verdict of the jury and also that his Article 6 rights were infringed in so far as the applicant was using the double jeopardy process to present new evidence and also to rectify flawed decisions which had been made in the past. On behalf of the third respondent it was submitted that the new evidence from Green and Rudden did not substantially strengthen the case against him nor did it make it likely that a reasonable jury would have convicted him. The court considered that each respondent had been acquitted of the offence of murder as the 2011 Act does not refer to acquittals of charges but of offences. Here the court considered that it was in the interests of justice that the acquittal of the first respondent be set aside and authorised a new prosecution. The court considered that it was highly likely that a reasonable jury would have convicted the first respondent on the basis of the evidence at his trial together with the new material, including the admissions. In relation to the second and third respondents the court considered that the new evidence generally pointed to the first respondent as being the principal actor which would have resulted in the second and third respondents being prosecuted on a different basis to the basis they had originally been prosecuted. The court did not consider that it was in the interests of justice for the second and third respondents to be prosecuted again on a different basis upon which they had previously been prosecuted and observed that on what it described as “the somewhat flimsy basis of the new material” the Crown could have originally elected to prosecute them in the way which they now sought to do with more or less the same evidence. In relation to the compatibility minute that was presented on behalf of the second respondent the court observed that it could not be said the application breached the second respondent’s article 5 and 6 rights under legislation which itself could not be described as incompatible with the Convention.