page 1 1 Thursday, 11th June 2009 2 (10.15 am) 3 MISS CARMICHAEL: Thank you, sir. I should say that before 4 resuming at the point where we left Mr Moffat's evidence 5 yesterday, I would like to take him a little way back in 6 his evidence to when he was telling us about what he 7 observed Gary Gray doing. 8 We have today the benefit of an additional 9 production in the form of a life-size series of 10 photographic images of the piece of wood removed from 11 the crime scene in Kilmarnock. The photographs were 12 prepared by Dr Bleay at the Home Office. With your 13 leave, Mr Chairman, I would ask Mr Moffat to leave the 14 witness box to try to show us by reference to that 15 production just what he observed. 16 THE CHAIRMAN: Perhaps you would like to explain what the 17 production is so we have it on the record. 18 MISS CARMICHAEL: Yes, what we have is a series of 19 photographs of the piece of wood that was removed from 20 the crime scene. This was photographed by Dr Bleay at 21 the Home Office and there are scales in the forms of 22 essentially long rulers along the edges of it 23 to demonstrate the size. The various images have been 24 taped together to make a composite image of the whole 25 height of the item and we now have that attached to one page 2 1 of the walls beside a doorway in the hearing room here. 2 Now, for all the interested representatives to be 3 able to observe what is going on it will probably be 4 necessary to leave our seats and for you, sir, to leave 5 your normal position and I understand that there is also 6 a process whereby this passage of the evidence can be 7 recorded photographically. 8 THE CHAIRMAN: We will see how it works. 9 MISS CARMICHAEL: I am obliged, sir. 10 MICHAEL MOFFAT (continued) 11 Examined by MISS CARMICHAEL (continued) 12 Q. So I think I should invite you then, Mr Moffat, to leave 13 the witness box and I will leave my normal seat as well 14 to come with you. I think there are more people coming 15 up. 16 Now, Mr Moffat, what I'd like you to do by reference 17 to the long photograph that we have there is show us the 18 position that you saw Gary Gray in when he, as you told 19 us, was touching the wood? 20 A. Okay, I'll show the piece of wood here in reference to 21 how a doorframe would look if you can imagine if you're 22 standing in the hallway and this was the bathroom door 23 then this piece of wood on the inside here. (Indicated) 24 Q. Now, I should explain for the notes that we're actually 25 facing a doorway here in the hearing hall and it may page 3 1 actually be useful, since we have the possibility of 2 recording this photographically, if you point simply to 3 the bit of wood where you say is the equivalent of the 4 doorframe that you saw in Kilmarnock and I will ask the 5 assistant here to take a photograph. 6 A. Whether or not that's the exact same set up as the door 7 in Kilmarnock I don't recall. All doors tend to be 8 different but this piece of wood would have been on the 9 inside edge of the frame. (Indicated) 10 Q. The one that you have indicated when the assistant has 11 taken the photograph here. (Photograph taken) 12 Now, what I will ask you to do then -- thank you for 13 showing us that -- is to try and put yourself in the 14 position that you tell us that Gary Gray was in when you 15 saw him touching the piece of wood and I will ask you 16 first to do that by reference to the photograph. 17 A. With the position of the door of this, the photograph 18 here just now, the end of the bathroom would have been 19 down that way so I would have been standing there 20 looking back towards Mr Gray who would have been 21 standing here with his hand like that (indicated). 22 Q. I would like you to try as precisely as possible to put 23 your hand on the piece of wood in the position that you 24 recall Mr Gray's hand being on the piece of wood? 25 A. Well, I roughly remember it as being round about my page 4 1 shoulder height. 2 Q. When I say positioning your hand if you can recall and 3 please tell us if you can't, if you can recall which of 4 his digits, whether it was his forefinger, his middle 5 finger, his thumb that was contacting if you -- 6 A. You wouldn't be able to see that exactly because I'm 7 standing at the back here and what you're seeing is a 8 hand up here like that, in that position. So you can't 9 see exactly what's touching where. 10 Q. So because you were behind you weren't able to see which 11 of his digits was contacting the wood? 12 A. That's correct. 13 Q. But for the record, as to the approximate position, I 14 wonder if you could show us and we could perhaps have 15 that recorded on camera. 16 A. (Indicated) (Photograph taken) This was the position 17 that Mr Gray was standing in. I don't know what height 18 Mr Gray is. All I can refer to it is he was standing 19 comfortably with his hand in that position leaning 20 against that frame. So if Mr Gray's taller, then the 21 hand print would be taller. 22 Q. We could perhaps enquire with Mr Gray in due course if 23 that becomes necessary. I would like you also, 24 please -- 25 MEMBER OF INQUIRY TEAM: Can I ask another shot be taken, page 5 1 please. (Photograph taken) 2 MISS CARMICHAEL: I wonder if you could show us also since 3 we have the benefit of a door here that I think I am 4 right in saying is hung in the same direction as the 5 bathroom door at Kilmarnock, if you could try to show us 6 as best you can, positioning yourself in the doorframe, 7 what you saw Gary Gray doing and the position that he 8 was in when you saw him. 9 A. He was standing within the doorframe just leaning as 10 that, for a brief instant. (Indicated) 11 Q. I wonder if you could record that as well, please? 12 A. I believe he was talking to another officer that's why 13 he turned round (photograph taken). 14 Q. So can we take it then from where you are thinking of 15 the Kilmarnock scene that Mr Gray was facing out into 16 the hall at the time? 17 A. Yes. 18 Q. Just stay there a moment. I wonder if you could 19 position yourself again in the same way so that we can 20 record a picture of particularly focusing on your hand, 21 Mr Moffat. (Photograph taken) 22 Before we leave here, I wonder if you could do one 23 more thing for me, Mr Moffat, and it's really to try to 24 reproduce the position that you were in physically when 25 you saw Mr Gray, whether you were crouching, standing, page 6 1 try to recreate that and how far -- now, I think we will 2 have to move other people here but since we do have the 3 benefit of this perhaps, I think if we open up this 4 door ... I'm down in this position because this is the 5 head side up, possibly further back. 6 Q. You are trammelled there by some stairs. 7 A. I'd been down in this position but probably a bit 8 further back and looked up and seen Gary leaning on it 9 and acknowledged him, not to just a glance at it, seen 10 him leaning and went, "Gary", you know, "mind where 11 you're leaning". (Photographs taken) 12 Q. Now what we have here, Mr Moffat -- thank you, again, 13 for showing us that -- is a door which is open at 14 something of angle. 15 Can you recall how that compares with the position of 16 the door in Kilmarnock at the time that you observed 17 Mr Gray? 18 A. No, I wouldn't comment on that at all. It's a totally 19 different door. 20 Q. Would you be able to tell us whether the door was, can I 21 say, flatter back more at right angles to the doorframe 22 or whether it may have been at an angle out from the 23 perpendicular? 24 A. I think you can see in the photographs that the door is 25 completely flat back against the bathroom. page 7 1 Q. Thank you for that, Mr Moffat. 2 THE CHAIRMAN: If any of the Core Participants' 3 representatives have some questions they would like 4 asked at this stage rather than go through all this 5 again this might be the moment. 6 MR SMITH: No, thank you, sir. 7 MR HOLMES: No, thank you. 8 THE CHAIRMAN: Very good thank you we will go back to our 9 places. 10 MISS CARMICHAEL: There is one further matter that should be 11 formally recorded in that the footing of the image 12 against the floor is not precise and it should perhaps 13 formally go in the record that the footing of the 14 doorframe is perhaps something two inches above floor 15 level here. 16 A. Could I just make one observation regarding how this 17 looks? 18 THE CHAIRMAN: Could you make it down there? 19 (Witness returned to witness box) 20 THE CHAIRMAN: I think there was something you wanted to 21 add, Mr Moffat? 22 A. Yes, sir, I was shown that piece of wood in court and 23 looking at the appearance of it there, I don't know if 24 the cleaners did a bit of work but when I seen it in 25 court it looked to me as if it had been redusted at some page 8 1 stage. 2 MISS CARMICHAEL: Just to follow that up when you say it 3 looked as if it had been redusted with what did it look 4 as if it had been redusted? 5 A. I would take it to be powder, fingerprint powders. 6 Q. We have heard some evidence there are different kinds, 7 not least aluminium flake and black powder. 8 Would you be able to tell us in those sort of terms 9 what sort of powder we're talking about? 10 A. I think it was possibly aluminium powder. 11 Q. So it had the appearance when you saw it of dusting with 12 aluminium powder? 13 A. Yes, it was a marked contrast from the time I 14 photographed it to which I'd actually seen in the court 15 that day. 16 Q. Mr Moffat, getting back to the point where we left you 17 yesterday, having taken you back a little out of 18 sequence, I had been asking you about who you had told 19 about the incident with Mr Gray. 20 A. Yes. 21 Q. You had started to tell the Inquiry about a telephone 22 call you made to Kilmarnock CID? 23 A. Yes, I did. 24 Q. When did you make this call? 25 A. It was some time shortly after the print coming up on page 9 1 that surface. It would probably have been, possibly, 2 the next day. 3 Q. So if the Inquiry has heard that that print was 4 discovered on 14th January, we could have been talking 5 about 15th January? 6 A. Yes. 7 Q. Who did you speak to? 8 A. I don't recall who it was I spoke to. I asked when I 9 was interviewed for this Inquiry if reference could be 10 made to check back for my house number and works number. 11 Possibly if the call came from my own house number that 12 I would need to phone the police office first in order 13 to obtain that number to phone Kilmarnock Police Office. 14 Q. What did you say? 15 A. Just probably would have been regarding the possibility 16 of a police officer's print coming up on a doorframe and 17 possibly it would be Gary Gray's and it would be 18 completely and totally accidental if anything was to 19 come from that. 20 Q. Now Mr Gray himself has indicated to the Inquiry that he 21 does not have any recollection of this happening. 22 Do you have any comment on that? 23 A. Yes, I'm quite saddened by that. I don't see how he 24 cannot remember that happening because at the time I was 25 quite, you know, quite concerned at seeing his glove page 10 1 ripped, where he had been leaning and then afterwards, 2 by pure coincidence, a print coming up in that area 3 which is just a possibility. It could very well be that 4 it's not Mr Gray's print but I still felt obliged 5 because I was concerned that maybe a senior police 6 officer might be on site regarding that matter and have 7 to explain why his print was on that scene; whereas, in 8 my own opinion, it was completely and totally 9 accidental. 10 Q. Did you speak with Gary Gray about the matter again? 11 A. No. 12 Q. You have been good enough to provide some of your 13 notebooks to the Inquiry, Mr Moffat. 14 A. Yes. 15 Q. Would you accept that neither of your notebooks records 16 the incident with Mr Gray's glove. 17 A. Yes, because that's -- if a police officer leaves his 18 print on a scene I've seen it happen on occasions. It's 19 a quick elimination process and it's never -- it's never 20 transpired to a situation that we've got here now. 21 Q. After you called to Kilmarnock when was the next time 22 you spoke to somebody about the possibility that the 23 mark might be Gary Gray's? 24 A. Can I refer to the ... is it visible in my statement 25 here? page 11 1 Q. I think you have told us in your statement and I will 2 ask you about an occasion on 23rd January when you spoke 3 to DI McAllister. 4 A. Oh, yes, that's correct, yes. 5 Q. Before we get to that, was there any conversation -- did 6 you tell anybody about this between your call to 7 Kilmarnock CID and when you spoke to Detective Inspector 8 McAllister? 9 A. Just before we get to that, at the time when this print 10 was found I was of that opinion with Stuart Wilson and 11 Graham and, from my memory, I thought I spoke about it 12 at the time within that house because, having seen 13 Mr Gray leaning on that surface, we were in that house 14 for quite a considerable amount of time, no 15 identifications had been coming forward at that stage to 16 say somebody had been accused for the scene and we were 17 quite desperate to get a fingerprint ident and every 18 time I walked past that doorframe, I was always of the 19 opinion maybe the aluminium powder hasn't done it's job 20 here. 21 Q. I will ask you a little bit more about that in due 22 course as well, Mr Moffat. 23 But you say that you said something when Mr Hunter and 24 Mr Wilson were there. Can you tell me what you said? 25 A. I expressed the fact that I think that that could be page 12 1 probably Gary Gray's print because of what I'd seen 2 occurring. 3 Q. Apart -- you have told us about speaking to Mr Wilson 4 and Mr Hunter and you have told us about a call to CID. 5 Before your contact with Detective Inspector McAllister 6 that you mention in your statement, did you mention the 7 matter to anybody else? 8 A. Not that I can recall just now. 9 Q. So coming on to the conversation with Mr McAllister, can 10 you tell us how it came to be that you and Mr McAllister 11 were in discussion on 23rd January 1997? 12 A. Yes. There was a phone call to the Dumbarton Police 13 Office where I worked at the time and a instruction left 14 that Mr McAllister wanted to see myself back at the 15 scene to go over positions of certain fingerprints. 16 This to me was very, very unusual. Why he wants me to 17 go down and speak to him because Stuart Wilson and 18 Graham Hunter were much closer to Kilmarnock Police 19 Office so they could easily have gone down and provided 20 that information. 21 Q. Is that something you thought odd at the time? 22 A. Yes. 23 Q. Did you query it with him? 24 A. I'm not in a position to query it. If I am asked to go 25 it I go and do it. page 13 1 Q. So what happened when you attended that Kilmarnock that 2 day? 3 A. I can't remember if I went to the police office first or 4 if I met Mr McAllister at the scene, but I do remember 5 that we were in the house, he highlighted he wanted to 6 go round a few marks with me just relative to his 7 inquiry and more or less straight away asked for my 8 opinion on the marks Y7 and Z7 and also I think it was 9 A8, those three marks, and asked me to take a very good 10 look at them and asked me what I thought about them. 11 Q. What did you tell him? 12 A. I felt that they were, in my opinion, more recent marks 13 because of the other marks about which appeared to be 14 faded in colour. So I was of that opinion that those 15 were quite recent marks. 16 Q. Did you say anything else to him about the marks? 17 A. Yes, I did. I said to him immediately that this will be 18 Gary Gray's fingerprints. He said, "What do you mean by 19 that?" Well, I told him what happened with the glove 20 being burst, where Gary Gray, probably explained to him 21 that I phoned the office and I'm thinking nobody's 22 bothered to do anything about this and Gary Gray's 23 fingerprint come up and now this is what it's come to. 24 He said, "No, it's not Gary Gray's fingerprint", and I 25 was actually quite shocked. It's just quite page 14 1 coincidental that I've witnessed something and I 2 thought, well, this is really bad luck on my part to 3 have witnessed an officer standing in that position and 4 the print turns out not to be his. But that's a 5 possibility. That's quite a possibility. 6 I said to him, "Are you absolutely sure it's not Gary 7 Gray's fingerprint?" He said, "No, it's another police 8 officer's" and that was about the end of the 9 conversation. 10 Q. Did you ask him whose fingerprint it was? 11 A. No, I didn't but again another police officers. We had 12 quite a number of police officers in that scene. I knew 13 that house was being searched before I attended that 14 scene. So for it to be another police officer's I 15 wasn't duly concerned about it, it was just a matter of 16 doing another check to have that officer eliminated. 17 Q. I wonder if I could take you, please, to paragraph 63 of 18 your statement, Mr Moffat. You tell us, therefore, if I 19 can go to page 15 of your statement -- paragraph 63 runs 20 on to that page -- you tell us in your statement that 21 DI McAllister made no indication as to the name, age or 22 sex of the officer. 23 A. That's correct. 24 Q. But you add: 25 "By his tone I thought now would be a good time not to page 15 1 say any more." 2 What do you mean by that? 3 A. I didn't want to pursue this matter any further. It was 4 of no interest to me to know who that fingerprint 5 belonged to. 6 Q. You seem to be saying here that DI McAllister's tone put 7 you off in some way and I would like to ask you whether 8 I am reading that right in the first place and, if so, 9 what it was about his tone that put you off. 10 A. Just quite a strong tone and I just felt, well, I'd 11 better not to ask any more on this. I didn't feel it 12 was my position to ask any more. 13 Q. Was his tone angry? 14 A. Quite a stern tone but we're talking about someone 15 speaking to you 12 years ago. I think it would be a bit 16 unfair here to try and get me to say something which I'm 17 not going to say here. 18 Q. I certainly don't want to put words in your mouth, 19 Mr Moffat, but so that the Inquiry can understand what 20 you have written in your statement I would like you to 21 give us your best recollection in describing 22 DI McAllister's tone -- 23 A. I would say he was talking in a serious tone. 24 Q. At paragraph 64 of your statement you say you now have 25 concerns as to why you'd had to go back to the crime page 16 1 scene to speak with DI McAllister about the marks at the 2 scene. 3 Can you explain to the Inquiry why that is, what your 4 concerns are? 5 A. Because that's quite an unusual practice. We had Stuart 6 Wilson and Graeme Hunter who were nearer at the time and 7 either one of them could have been back and highlighted 8 these marks. 9 Q. So it is your concern that it was you rather than other 10 officers? 11 A. Yes, that was my concern, why I was singled out, yes. 12 Q. What I want to be clear about is whether you think that 13 there's anything sinister about the fact of an officer, 14 whoever it happens to be, being brought back to the 15 scene to speak to DI McAllister about these marks? 16 A. There's something very untoward about that, yes. I feel 17 that, yes, because I don't see any other logical 18 explanation for not bringing Stuart and Graeme back at 19 the scene, no. 20 Q. I put the question badly to you. I understand that you 21 are telling us that you were concerned or you are 22 concerned that it was yourself rather than one of the 23 other officers that was brought. But, leaving that 24 particular matter aside, is there anything untoward 25 about a Scenes of Crime Officer who has been involved in page 17 1 finding marks being asked to come back to the scene to 2 discuss matters with a detective inspector? 3 A. No, it will happen -- not just a Scenes of Crime Officer 4 but it may well be a fingerprint expert who is asked to 5 attend a scene to give them an indication, yes. 6 Q. Thank you. I just wanted to clarify that, Mr Moffat. 7 Mr Moffat, I think you have given statements about 8 your involvement in this inquiry on a number of 9 occasions. 10 A. Yes, that's correct. 11 Q. I would like you to look, please, at document CO1378 if 12 you can put up the second page of that, please. 13 I think what we see here this is a statement that you 14 gave in relation to your involvement in this Inquiry and 15 I wonder if you could just take the time to read this 16 particular statement and tell us when you have got to 17 the bottom of the first page and need to go on to the 18 next one. (Pause) 19 A. Could you move on to the next page? 20 Q. Yes, if we could have the next page. (Pause) 21 We see at the bottom of the second page that this was 22 a statement that you gave to Detective Superintendent 23 Malcolm at Dumbarton Police Office on 21st March 1997? 24 A. I've no recollection of giving that statement. I'm not 25 saying it's not my statement but I've no recollection of page 18 1 giving it. 2 Q. Do you recall at all Detective Superintendent Malcolm 3 speaking to you in the course of the inquiry in 4 March 1997? 5 A. No. I'm not disagreeing with what it says in the 6 statement. 7 Q. You would accept, I think, looking at that statement, 8 that it doesn't mention anything about Gary Gray? 9 A. Yes. 10 Q. What I am curious about is if you do accept you gave a 11 statement about this matter in March 1997 one might 12 think that it would be natural for you to mention 13 concerns about Gary Gray at that time. 14 A. No, because probably there'd been an identification on 15 the print as being Shirley McKie from SCRO and that's 16 been acceptable at that time. 17 Why would I want to query that? 18 Q. The Inquiry may hear -- well, this is precisely why I am 19 asking you this, to get your explanation, Mr Moffat. 20 The Inquiry may hear that Mr Malcolm was carrying out 21 an investigation into whether anybody had seen Detective 22 Constable Cardwell, as she was at the time, at the scene 23 and that it was known at that point that there was some 24 controversy or dispute about whether she had been there. 25 A. Yes. page 19 1 Q. I think you were perhaps aware of that controversy or 2 dispute yourself. (Pause) 3 A. (No audible response) 4 Q. Well, I would be right in saying that -- 5 A. Yes, that's obviously the way I've given the statement 6 to say I've no recollection of seeing her within that 7 scene. 8 Q. But in giving a statement of that sort at that time you 9 were aware that there was some controversy as to whether 10 DC Cardwell had been at the scene? 11 A. Yes. 12 Q. So being aware of that controversy, I am wondering why 13 you did not think it relevant to mention that, in your 14 own mind, there might be another possible explanation 15 for the presence of a print in the location where Y7 was 16 found. 17 A. Because they'd obviously accepted the findings from 18 SCRO. 19 Q. I would like to ask you about another statement, please, 20 one that you gave to an officer called Laurence Wilson 21 and that document is CO1582. I think we have this in 22 hard copy. In fact, it is on the screen. 23 The Inquiry has evidence that when Chief Inspector 24 Wilson was carrying out his inquiries, Mr Moffat, he was 25 doing so in the context by that time of a disciplinary page 20 1 inquiry into the allegation that Ms McKie or Cardwell 2 had been in the scene when she ought not to have been. 3 Do you recall giving a statement to Chief Inspector 4 Wilson in that enquiry? 5 A. Yes, I think I did, yes. 6 Q. You would be aware at that time that Ms McKie was in 7 some trouble at least within the police in that there 8 was a disciplinary inquiry going on? 9 A. I can't remember exactly. I would need to refer to what 10 I've said in my statement there as to -- 11 Q. Before we go to that -- 12 A. When was -- 13 Q. -- by June 1997, you would be aware, with an officer 14 coming to speak to you from Complaints and Discipline 15 within Strathclyde Police, that Ms McKie was in some 16 trouble or some potential trouble in disciplinary terms 17 within Strathclyde Police. 18 Would you accept that? 19 A. Yes, yes. 20 Q. Again, if we can go to page 2 of this document and 21 again, if you read through the first page here and tell 22 us when you are ready to turn over. (Pause) 23 A. Okay. 24 Q. Before we leave that page, we can note that at the 25 bottom of that first page of the statement itself, page 21 1 page 2 of the PDF, you do mention that you had gone to 2 the house at Irvine Road with Mr Gray? 3 A. Yes. 4 Q. If we can have the next page and if you just take the 5 time that you need to read through that and again tell 6 us when you are ready to turn over. (Pause) 7 A. Okay. 8 Q. Please, if we could have the next page of the document 9 which is headed page 3 of the statement. Again, please 10 tell us when you have had an opportunity to read that, 11 Mr Moffat. (Pause) 12 A. I don't recall that statement. 13 Q. You don't recall giving a statement to Inspector Wilson? 14 A. Not like that, no. 15 Q. Are you disputing that you gave a statement to Chief 16 Inspector Wilson or are you saying that this is not 17 noted in a way that you can recall as your evidence? 18 A. No. I'm not disputing giving a statement but this is -- 19 I'm seeing a typed image on a screen here. If you have 20 a statement with my signature on it, I won't disagree 21 with that but I'm just looking at an image on a screen. 22 My concern is that there's a locksmith mentioned 23 there, a Mr David Garvey, and I think I wrote down in my 24 notebook a Mr Gomez as a locksmith. 25 Q. I think other evidence the Inquiry has indicates a page 22 1 record of Mr Gomez rather than Garvey being a correct 2 record. Is that the point that concerns you about the 3 statement? 4 A. Yes, it does. 5 Q. So in that case it would not be an accurate record of 6 what you said to Mr Wilson? 7 A. Possibly not, no. 8 Q. Perhaps without asking you to trouble yourself about the 9 detail of page 3 -- 10 A. It's quite a lot of detail in this statement and, from 11 what I recall from the interview with Mr Wilson, it 12 didn't take a great amount of time. I'm talking about 13 19 sets of prints here and 6 sets of prints there. It'd 14 be 9 hours for me to put a statement like that together. 15 THE CHAIRMAN: Is there another page? 16 MISS CARMICHAEL: Yes, there is. I should perhaps, in 17 fairness to you, Mr Moffat, say that what I am 18 interested about in this statement is that it does not 19 mention the incident with Gary Gray and I want to give 20 you a proper opportunity to satisfy yourself that it 21 does not mention Gary Gray. 22 Are you happy that page 3 doesn't mention Gary Gray? 23 A. Yes. 24 Q. If we could move on to page 4, again with that in mind, 25 take the time that you need to read it but what I am page 23 1 interested in is you satisfying yourself that this 2 statement does not record any mention of Gary Gray. 3 (Pause) 4 A. I'm quite happy with that. 5 Q. You accepted, I think, that you were aware that by the 6 time you were giving this statement Ms McKie was in some 7 potential difficulty with Strathclyde Police? 8 A. Yes. 9 Q. And you were aware that she was disputing that she had 10 been at the scene to leave her fingerprint? 11 A. Well, yes. 12 Q. With that in mind, did it not occur to you perhaps to 13 mention again the matter with Gary Gray that you have 14 told us about? 15 A. No, it certainly didn't because if you look at my 16 statement, I challenged that just as an extra precaution 17 when I found out that Ms McKie's defence was going to be 18 mis-identification and I had no reason to challenge SCRO 19 on their findings at that point, up until that point. 20 Q. I think that probably brings us on to the next chapter 21 of this particular bit of the picture, Mr Moffat. 22 Would I be correct in saying that the next time you 23 mentioned your concern about Gary Gray to anyone was at 24 a time possibly shortly before the trial of Ms McKie? 25 A. That's correct. page 24 1 Q. Who did you mention it to? 2 A. Initial involvement was my manager at that time within 3 the Office, a Mr Ewart Orr -- he was my boss at 4 Dumbarton Police Office -- and that's why I said I'm 5 getting confused with that, what you're saying not being 6 in these statements. Up until that point there was 7 nothing -- I'm not a fingerprint expert. I'm not here 8 to challenge what fingerprint experts say. 9 My concern was that what is the defence going to be 10 and Ewart said to me it's going to be mis-identification 11 because we were thinking they were going to try and say 12 this fingerprint has been planted or something because 13 she would need to come up with some sort of a defence 14 and I heard it was going to be mis-identification and I 15 thought has there been a mistake made? Up until that 16 point I couldn't see a mistake being made. Quite 17 possibly a mistake hasn't been made but I thought at 18 that point I'll highlight it to the Chief Inspector 19 because up until that point I would not have ever 20 considered querying the work of fingerprint experts 21 because that's their job to bring forward 22 identification, not for a scene examiner to do that. 23 Q. So what happened when you had spoken to Mr Orr? 24 A. Mr Orr said, "If you are that concerned about it phone 25 the Chief Inspector", which I did straight away. page 25 1 Q. Which Chief Inspector was that? 2 A. Chief Inspector Hogg. 3 Q. And he was in charge of the Identification Bureau, I 4 think? 5 A. Yes, he was. 6 Q. What did you say to Chief Inspector Hogg? 7 A. I said to Iain Hogg that when I was down the house I 8 felt -- I explained to him what had happened with Gary 9 Gray. I can't remember if he actually knew about that 10 or if I maybe spoke to him in the past or just gossip in 11 the office about it, you know, but his reply was, "Look 12 here, sunshine, don't you dare start going down that 13 road at this stage". 14 Q. What was his tone to you? 15 A. Very threatening. 16 Q. What was your response? 17 A. I was quite upset. 18 Q. Did you say anything to him -- 19 A. I stood my ground with him because -- 20 Q. I am sorry to interrupt. What did you say? 21 A. I said, "I don't care about what you think or what 22 you've got to say. For peace of mind at this stage of 23 the inquiry, Mr Gray now in the atmosphere to suggest a 24 possible mistake being made, there's got to be a start 25 point. If we have a look at that mark now, get it page 26 1 sorted with and then we can move on. I just want that 2 from my conscience cleared out in my mind that that 3 print hasn't been overlooked and a mistake been made". 4 Q. What did he say to you when you said that? 5 A. He just said to me, "Get it looked into", and he phoned 6 me at that stage and put the phone down. My boss, 7 Ewart, could see I was really taken aback and really 8 upset -- really upset. 9 Q. Was he there with you when you made the call? 10 A. Yes, he was. 11 Q. Did anything follow from your call to Mr Hogg? 12 A. Yes. He phoned back the next day to the office much 13 calmer, much more polite, "Not to worry I've asked 14 Charlie to check it. It's been checked. There's 15 nothing there for you to be concerned about", and that 16 was the gist of the conversation. 17 Q. Did you know what the reference to Charlie was meant to 18 be? 19 A. No, I assumed that would possibly be Charlie Stewart 20 from SCRO. 21 Q. Mr Hogg's position may be that he does recall speaking 22 to you on a number of occasions about this matter but he 23 does not recall being angry in his tone to you. 24 What is your comment on that? 25 A. I think the man's lying. page 27 1 Q. Did you have any further contact with Mr Hogg about this 2 matter at any stage? 3 A. No, not so much as in that, no, but the man's attitude 4 towards me from that very day on completely changed. 5 Q. I am sorry, I should perhaps properly direct you to 6 paragraph 71 on your statement, Mr Moffat, where you do 7 mention there an occasion where you talked to Iain Hogg. 8 A. Oh, yes. 9 Q. Can you tell us about that, please? 10 A. Yes. I was informed by Hogg that Tayside officers were 11 coming in to interview us regarding the proceedings. 12 They were carrying out their own investigation and I 13 would be spoken to at some point and more or less not to 14 elaborate, "stick to your statement, everything'll be 15 fine". 16 Q. Can you tell us, just as well as you can remember, just 17 exactly what words Mr Hogg used to you at that point? 18 A. Well, this is -- yes, just what I've said there. Told 19 me not to get upset about it, "stick to your statement". 20 I mean "stick to your statement" to me isn't a direction 21 that should be coming from anyone because if you ask 22 anyone, any person in a court, any particular question 23 we're obliged to answer that not just what it says in a 24 statement if it's at all possible for us to answer that. 25 We also had a briefing before the High Court trial where page 28 1 all the officers were all brought in and we were asked 2 in general, you know, "This trial's coming up. We need 3 to play this, you know, keep to your statements and, you 4 know, don't elaborate, don't get carried away", and I 5 was singled out, "Especially you, mate, because we all 6 know what you are like in the witness box". That man 7 has never, ever seen me in the witness box. 8 Q. I would like to ask you about this. This is a briefing 9 you say took place -- 10 A. I think that was before the original trial. 11 THE CHAIRMAN: That is the trial of Mr Asbury? 12 A. Yes, my Lord. 13 MISS CARMICHAEL: Who gave you that briefing? 14 A. It was Iain Hogg and Graeme Hunter and Stuart Wilson 15 were also present and also quite a few of those 16 officers. I remember being singled out. 17 Q. You say that something was said to you along the line 18 of, "We know what you're like in the witness box"? 19 A. Yes. 20 Q. Who said that? 21 A. Iain Hogg. 22 Q. What was his tone when he said that? 23 A. I wouldn't say it was threatening in any way it was just 24 in general, you know, off-the-cuff remark. 25 Q. Again, I don't want to put words in your mouth -- page 29 1 A. He was directing -- it wasn't a remark -- you know, it 2 was directed towards me and no-one else in that room. 3 Q. One can perhaps imagine that a remark of that sort could 4 be made in a disparaging tone, it could be made in a 5 jovial tone. With those sorts of descriptions in mind, 6 what sort of impression do you think Mr Hogg was trying 7 to make on you with that remark? Was he joking with you 8 or was he being disparaging? 9 A. That's not a matter to joke about really, you know. If 10 he wanted to make a joke he could quite easily have said 11 to all the guys watch it but, you know, it was directed 12 towards me and, no, not funny in any way. 13 Q. But do you think he intended it to be funny? 14 A. No. There's plenty of other officers in that room he 15 could have been funny with. 16 Q. We are quite clear you are talking about the briefing 17 before Mr Asbury's trial? 18 A. Well, I wouldn't say -- quite easily sat here I can get 19 a bit confused. I think that's when that one was, yes. 20 Perhaps speaking to my other colleagues when they're in 21 this witness box they can maybe clarify. 22 Q. I think you did give evidence at Ms McKie's trial. 23 A. Yes. 24 Q. You didn't say anything to the Fiscals who summoned you 25 to court or seek to have anything brought to the page 30 1 attention of the Advocate Depute who was prosecuting the 2 case about your concern about Gary Gray? 3 A. No. 4 Q. Can I ask you to explain why not at that stage? You may 5 think the answer is obvious but please give us it? 6 A. Yes, because I still believe the identification is 7 correct from SCRO. 8 Q. When the officers from Tayside -- 9 A. Could I just -- when you are trying to sit here in the 10 circumstances -- 11 THE CHAIRMAN: If there is something more you want to add -- 12 A. Yes. It's been confirmed that, coming up to Ms McKie's 13 trial it's been confirmed that that's been rechecked, 14 that's correct, yes, by SCRO. The mark concerned with 15 Gary Gray which I'm thinking could possibly have been 16 his but I've asked for that mark to be rechecked and 17 I've been given that information that it's been 18 rechecked so ... 19 MISS CARMICHAEL: So in your mind, because you had been told 20 it's been rechecked, the matter's cleared up? 21 A. Yes, of course. 22 Q. When the officers from Tayside came to speak to you, you 23 did in fact tell them about what you have told us about 24 the matter with Gary Gray? 25 A. Yes. page 31 1 Q. In your statement you have also mentioned a recollection 2 of speaking to an Inspector Baillie about the case if 3 you look at paragraph 72 of your statement. 4 A. Can you just go back to the officer from Tayside for 5 just a second. 6 Q. Of course, if there is more you would like to tell us 7 about that, Mr Moffat. 8 A. Yes, when I was interviewed by the officers at Tayside I 9 told them about asking for the print to be rechecked and 10 they asked me, "What are you talking about?" I said, 11 "The rechecking of the print", and they says, "Well, 12 what print?" I said, "Well, you'll have spoken to my 13 Chief Inspector and everybody else, you know. I did ask 14 for SCRO to have this print rechecked", and they said, 15 "Nobody's told us". 16 So I had then to explain to them what the scenario was 17 with Gary Gray about asking for the print to be 18 rechecked. So they said, "Well, we suggest you go back 19 and re-speak to Mr Hogg regarding that". 20 Q. So your clear impression was the first time the Tayside 21 officers had heard about it was from you? 22 A. Yes. 23 Q. If you go to page 17 of your statement at paragraph 72, 24 you mention speaking to an Inspector Baillie? 25 A. Yes, that's correct. page 32 1 Q. Who is Inspector Baillie? Where does he fit in? 2 A. He was the Inspector within the Identification Bureau. 3 His immediate boss would be Chief Inspector Iain Hogg. 4 Q. Did you approach Mr Bailey or did he approach you? 5 A. No, this is -- I think there's been a conversation that 6 come up he had been down visiting the Dumbarton Police 7 Office and everything going on with this trial this 8 subject has obviously come up and Mr Bailey said ... if 9 I can just see the exact words here, he'd said to me 10 don't get involved in this because it was going to get 11 messy. 12 Q. Did he say anything else? 13 A. I don't recall. I just remember that because I think 14 I've actually written that down in my notebook at one 15 point. 16 Q. I think I probably have to put this to you, in fairness, 17 Mr Moffat: as regards what you have told us about 18 speaking to Mr McAllister on 23rd January, the Inquiry 19 understands the position to be that that simply did not 20 happen. 21 What is your comment on that? 22 A. Mr McAllister's saying that didn't happen? Then I would 23 have to say Mr McAllister's telling lies to this 24 Inquiry. 25 Q. In regard to what you say about Mr Hogg telling you to page 33 1 stick to your statement, that's not something he recalls 2 saying to you. 3 Do you have any comment on that? 4 A. Again, I disagree with his comments as well. 5 Q. Mr Moffat, moving on to another topic but back to the 6 night of 8th January into 9th January when you were 7 first at the crime scene at Irvine Road, Kilmarnock, I 8 think you left the crime scene in the early hours; is 9 that right? 10 A. Yes. 11 Q. I think if you look at SG0537 at page 1, please, if we 12 go down to the bottom fifth or so of that page we see an 13 entry at 2310 a Constable Hutchison arriving. It seems 14 to be on the right-hand side of that? 15 A. Yes, I see that, yes. 16 Q. That would be at a time when you were there carrying out 17 your duties, yes? 18 A. Possibly, yes. 19 Q. If we move just down a little bit, we see at 2330 a PC 20 Nicol arriving at the locus? 21 A. Yes. 22 Q. Just below that we see the gentleman from the funeral 23 services whom we spoke about yesterday. 24 A. Yes. 25 Q. If we move on to the next page, please, I think we see page 34 1 you leaving at about 1.30 in the morning. I think we 2 are highlighting the entry for you, Mr Moffat. 3 A. I have no entry in my notebook for the actual time I 4 left. 5 Q. I think you told us you got home -- 6 A. About 3.00. 7 Q. -- which would be pretty much consistent with leaving 8 around about that time? 9 A. Yes. 10 Q. Just below that, we see at 3.15 in the morning the 11 officers I have just mentioned, PC Hutchison and PC 12 Nicol, leaving after you have left. 13 A. Yes. 14 Q. We heard a suggestion, Mr Moffat, that Constables Nicol 15 and Hutchison came to be stationed in the living room at 16 the property and I would like to ask if you have any 17 memory of that happening, of officers being stationed 18 there any time before you left that evening? 19 A. No, I don't recall that. 20 Q. May it have happened and it is simply something you 21 don't remember or is it something you would have 22 expected to have stuck in your mind? 23 A. No, if they had been in the living room suited and 24 booted and covered up maybe they felt that was an 25 appropriate place to stand at that time. page 35 1 Q. There may be some suggestion that the officers were 2 stationed to keep watch over the locus and keep it 3 secure. 4 Would it surprise you in that context if they were 5 stationed in the living room? 6 A. Yes. I would expect someone to be at the front door of 7 the premises. 8 Q. Would it trouble you professionally, if I can put it 9 that way, from the point of view of evidence collection 10 to think of them being stationed in the living room 11 rather than in the porch? 12 A. Well, when I first arrived at that house I drove past it 13 first because I never saw any police officers present 14 outside. I had to double back on myself and come back 15 down the roadway and from what I can gather, I think -- 16 I can't remember an officer actually standing outside 17 the locus when I arrived. I vaguely remember a piece of 18 police tape which is probably what indicated me to the 19 house. So when you're saying now there's officers 20 standing within the house at that stage then I'm not 21 surprised by that. 22 Q. I would like to move on with you to 14th January and the 23 finding and recording of the mark Y7. I think you have 24 already told us that yourself, Mr Wilson and Mr Hunter 25 were there. page 36 1 A. Yes. 2 Q. Sorry, if you need a glass of water, please, just take a 3 moment, Mr Moffat. 4 The Inquiry has heard some evidence about there being 5 a discussion about the use of black powder at the crime 6 scene on 14th January. 7 Is that something that you remember? 8 A. Yes. 9 Q. Tell us please who was involved in the discussion? 10 A. I think we were all involved in this discussion. DC 11 Kerr -- who, prior to reading the transcript, I wasn't 12 aware -- has a lot of knowledge of fingerprinting 13 himself, you know, and he could see we were all upset 14 that we were not being allowed to use black powder. 15 The first time I did any dusting within that house the 16 first fingerprint I found was with black powder. The 17 minute I found that print I was instructed by my 18 colleague Stuart Wilson that we weren't to use any black 19 powder. This would be on a unit, on a cupboard door, I 20 think it was, in the upper part of the house, in the 21 area where I had been instructed to work. 22 So after finding that print, I then went down to have 23 a discussion with Mr Thurley regarding the list of what 24 powders we were to use and David said he felt it was 25 best if we continued examination using aluminium powder. page 37 1 Now, over the years of going to these scenes sometimes 2 it's left to the individuals, sometimes we go to scenes 3 and are given instruction. On this particular -- at 4 this particular stage, the instruction I was getting was 5 I had to use aluminium powder, so that's it. 6 Q. That was at some stage before 14th January when mark Y7 7 was found? 8 A. Yes, this is before, yes. 9 Q. So you started to tell us about DC Kerr saying something 10 on 14th January. I wonder if you could continue with 11 that? 12 A. Yes. It was just regarding the mark on the skirting 13 board, there was a mark on the skirting board -- this is 14 the day Y7 was found, yes? 15 Q. That is what I am asking you about, yes. 16 A. There was a mark on the skirting board in the hallway 17 which we had a look at and it was covered in aluminium 18 powder and we were querying what it may have been. So 19 we dusted it with black powder -- it could very well 20 have been myself -- and the result was quite phenomenal. 21 You know, it came up a lot clearer and it looked to be a 22 piece of material mark or something. Whether or not it 23 would have been significant to the inquiry I don't know 24 but we did remove that piece of skirting board and it 25 was taken back. page 38 1 Q. Whereabouts was the skirting board? 2 A. I think this was down at the front doorway. 3 Q. Near the front doorway? 4 A. Yes, yes. 5 So then Stuart and Graeme were of the opinion, you 6 know, this is giving a better result. So I think, you 7 know, I can't remember the exact wording but between us 8 we decided that it was probably a better idea to look 9 around the doorframe where the initial attack took 10 place, and also I've got it in the back of my mind that 11 I haven't seen anything there at all. 12 Now, I don't know, I don't have a log to see if 13 there's any prints in aluminium been lifted from that 14 area, and possibly confirming with me I don't think 15 there was any prints in aluminium taken from that area 16 at all. 17 Q. Just to be clear about what we're talking about, when 18 you're talking about where the attack took place, in any 19 event you're talking about the doorframe where 20 Miss Ross' body came to be discovered? 21 A. Yes, that's what I meant by that, not fair comment to 22 say where the attack because we don't know those facts. 23 What I'm referring to is the area where the deceased's 24 body was lying. 25 Q. So we are talking about the bathroom doorframe. page 39 1 A. Yes. 2 Q. Was there anything that occurred to you about the 3 appearance of the doorframe when you saw it as powdered 4 with aluminium and before black powder was applied? 5 A. I couldn't see -- I don't recall seeing any areas where 6 prints had been lifted from or had there been prints 7 there at all. Bearing in mind had there been prints 8 there at all there is also the possibility that with 9 using the black you could then re-enhance the same 10 fingerprint again so you would need to take that into 11 account and have it noted that it's possibly the same 12 print as opposed to finding a fresh print. That would 13 need to be recorded. 14 Q. But presumably if there was a print that had already 15 been noticed there, there would be some label or 16 indication that it was there? 17 A. Perhaps not a label but perhaps what you would find is, 18 if it's been done with aluminium and lifted with the 19 sticky tape, so you would then expect to see marks where 20 the tape has been on the surface and peeled off the 21 surface with the tape. 22 Q. So you will see some indication that somebody had 23 noticed and lifted a print from the aluminium? 24 A. Yes. 25 Q. Are you familiar with the idea of a powder taking to a page 40 1 surface, Mr Moffat? 2 A. Different -- well, that's obviously why we have 3 different types of powders. Some are magnetic flake 4 powders, some are -- how to describe it -- carbon 5 powders, different textures as to how it actually lies 6 on the actual surface itself. I'm not a scientist by 7 any means. 8 Q. Just on the basis of your own experience and your own 9 professional work, Mr Moffat, is it possible to see by 10 looking at a surface that's been powdered with aluminium 11 flake whether the powder has taken to the surface? 12 A. Yes, you can usually see deposits of the aluminium on 13 the surface. 14 Q. Thinking back to when you saw the doorframe of the 15 bathroom as it had been powdered with aluminium, was 16 there anything that indicated to you whether it had or 17 had not taken on the surface? 18 A. Well, that's -- well, it's quite a controversial 19 question because, you know, if you can see aluminium on 20 the surface you have to assume that it's been powdered, 21 whether or not -- I mean, the powder's in the atmosphere 22 then. There was nothing to indicate that aluminium was 23 not on that surface. So to me it had been powdered by 24 aluminium powder. 25 Maybe I'm not explaining myself clearly here. On some page 41 1 surfaces you can put aluminium powder on and it appears 2 more obvious on particular types of surface than it does 3 on other types of surface. 4 Q. But is there anything that -- when you look at a surface 5 even as you perhaps powder it yourself with aluminium, 6 is there any way of telling whether it's working well, 7 whether it is adhering to the surface, whether it is 8 adhering to any marks on the surface? 9 A. If you're not finding anything you maybe think maybe 10 it's not working so well. If you're finding prints then 11 you obviously have to assume that it's doing what it's 12 supposed to do. But it is a first stage process. 13 Q. There's been some suggestion that perhaps aluminium 14 powder does not always adhere very well to surfaces that 15 are grimy or greasy or which have been subject to 16 condensation? 17 A. Yes, that's just to highlight that fact, the instruction 18 was that we weren't to use aluminium we move into the 19 bathroom area and the powder just wasn't taking to that 20 surface at all so we didn't ask Mr Thurley about 21 continuing with aluminium powder, we just automatically 22 changed over to using a black powder within that. 23 Q. Sorry, did you say the instruction had been that you 24 were to use aluminium powder or that you had to use -- 25 A. No, Mr Thurley had indicated he wanted us to continue page 42 1 the examination using aluminium powder. However, by the 2 time we got into the bathroom area, it was blatantly 3 obvious that you couldn't -- the conditions of the tiles 4 and everything else, the powder wasn't taking very well. 5 We tried using -- I can't remember if it was black magna 6 powder or black brush-on powder, but that was giving us 7 a better result and, as indicated, then there were a 8 number of marks found within that bathroom area which 9 were then photographed. 10 Q. That's within the bathroom itself -- 11 A. Within the bathroom itself, yes. 12 Q. What I am trying to get at is when you looked at the 13 doorframe as it had been powdered with aluminium, was 14 there anything to indicate that aluminium powder hadn't 15 taken to that surface or to part of that surface? 16 A. That's ... you know ... it's an unfair ... you can't say 17 has it taken or has it not taken. It's been powdered. 18 Whether or not it's worked ... 19 Q. We've heard some evidence that that when one can see the 20 paint clearly through or where one can perhaps see grime 21 or staining clearly on the surface that might indicate 22 that the powder has not stuck well, if I can put it that 23 way, to that particular surface? 24 A. Yes, I would agree with that, yes. It wouldn't have 25 been my choice to do that door with the basic aluminium page 43 1 powder. 2 Q. Well, that's what I am getting at really. If it is the 3 case that sometimes you can see things through the 4 powder that indicate that the powder hasn't stuck very 5 well, when you looked at that doorframe was there 6 anything like that? 7 A. It just looked like a very light coating of aluminium. 8 If it's very, very light then I suppose you can be in a 9 position there to say maybe it hasn't taken as well to 10 the surface as it possibly should have. 11 Q. Can you remember whose decision it was to use the black 12 powder on the bathroom doorframe or was it perhaps a 13 joint decision? 14 A. I think we were all having -- I felt we were having this 15 discussion after seeing the mark on the skirting board 16 and I think it was really quite obvious to us all, you 17 know, that we were going to carry on using the black 18 powder in other parts of the house. 19 Q. I think that you personally made notes of finding mark 20 Y7 and I would like you to look, please, first at page 4 21 of AA0002. I think we are looking here at your own 22 notebook; is that correct, Mr Moffat? 23 A. That's correct, yes. 24 Q. On the right-hand page on the screen about halfway down 25 we see "Y7 RHS hallway bathroom door surround 5 feet" page 44 1 and then an arrow. 2 A. Yes. 3 Q. Can you tell us what the arrow means, please. 4 A. Yes, it's an indication arrow as a rough guide as the 5 direction of the prints at the time which we think 6 they're facing. 7 Q. So can we take it that you think that the mark that you 8 found was pointing straight up if we can say in a 12.00 9 position? 10 A. I would say that, yes. 11 Q. You said very fairly that obviously you are not a 12 fingerprint expert yourself; you are somebody who finds 13 and records fingerprints. Do you, in that role, have 14 the expertise to say what the orientation of a mark is 15 in that way? 16 A. That is just taken as a very, very rough, rough 17 guideline. It should not be taken in any other context 18 other than that. 19 Q. That is helpful to know that, Mr Moffat, thank you. 20 Just below where you have recorded Y7 you recorded 21 another mark Z7 and I think you have put ditto marks for 22 the positions. 23 A. Yes. 24 Q. And another arrow pointing upright. We should take the 25 pointing upright with the same caveats or health page 45 1 warnings as you have given us about the other one? 2 A. Yes, that's correct. 3 Q. I would like to ask you also about the entry immediately 4 below that which is for a mark A8. 5 Can you tell us what it says there? 6 A. "Possible sweat print, appears fresh." 7 Q. You found, I think, that on LHS shall we take that as 8 left-hand side of the hallway bathroom door facing? 9 A. Yes. 10 Q. At 5-foot up. So should we take it that is on the 11 surface directly opposite where you found the other 12 marks? 13 A. Yes. 14 Q. The notation that you made about possible sweat print 15 appears fresh, is that referable only to A8 rather than 16 the other marks? 17 A. It appeared a bit more -- that's what I've ... yes, 18 that's how I've noted it, yes. 19 Q. What do you mean when you write "sweat print"? 20 A. Well, it's not scientific, it's just an indicator to me 21 because it's a mark which is darker in colour. There 22 are reasons for that, because we did find the deceased's 23 fingerprints on that doorframe and, just to try to 24 explain it to you, the deceased's from what I recall 25 prints were very faded and light grey in colour but this page 46 1 was much darker in colour which gives an indication of 2 the possibility that it is a more recent print. 3 However, if it's in a contaminant, the contaminant can 4 enhance the powder giving that perspective. So it could 5 have been an older print with a contaminant on it, then 6 it would look darker. It's just as a rough guide. 7 Q. Can we take it from that that there is perhaps no 8 reliable, really reliable way of saying how old a print 9 is? 10 A. That's correct, yes. 11 Q. Again, I don't want to put words in your mouth but would 12 it be fair to treat what you have written there as a 13 question of impression? 14 A. Yes. 15 THE CHAIRMAN: Are you going to be a little longer? 16 MISS CARMICHAEL: I am going to be a little longer. 17 THE CHAIRMAN: We will stop now. I think I said yesterday 18 we will stop until 11.50. 19 (11.30 am) 20 (A short break) 21 (11.50 am) 22 MISS CARMICHAEL: Thank you, sir. 23 Now, Mr Moffat, I wonder if I could ask you to sit 24 forward a little bit because I think some people have 25 had a little difficulty hearing you and it is probably page 47 1 helpful if you bring the microphone closer. If you can 2 do that it would be very helpful; thank you. 3 I think we have your notebook, the notes that you 4 took at the time that Y7 and some other marks were 5 discovered -- and if we could just have that up again, 6 thank you -- Y7, Z7 and A8 all pointing upwards as far 7 as your judgment could tell us that. 8 A. Yes. 9 Q. I wonder if you could look, please, at DB0003, page 17. 10 I think again you are responsible for at least some of 11 the entries on this sheet? 12 A. Yes. 13 Q. Can you tell us what this sheet is and how it is used? 14 A. This is a sheet that accompanies the form 13B which goes 15 to the Criminal Records Office relating to all the 16 prints which are found on the scene. 17 Q. Are these sheets that you complete when you are at the 18 scene? 19 A. Yes. 20 Q. And the first three entries that we see on this 21 particular sheet relate to the same three marks, Y7, Z7 22 and A8? 23 A. Yes, they do. 24 Q. What we see, I think, at least for A8 is an arrow that 25 maybe doesn't exactly echo what we see in your notebook? page 48 1 A. That's correct. 2 Q. Can you tell us which one is right to the best of your 3 recollection? 4 A. Well, to the best of my recollection from A8, the 5 fingerprint itself, I can remember it being what I 6 thought was probably a fingertip which I've put it down 7 as maybe facing up because it could not be something 8 going left or right or down. However, I will stand 9 corrected if fingerprint experts disagree with that. 10 But that's just, you know, in general. 11 Q. I suppose I'm just asking which of the two arrows 12 records your own impression more accurately. 13 A. I would say up, the way that could very well be the way 14 they had been leaning at the time or, you know ... 15 Q. So you think the one in your notebook is the more 16 accurate note of your impression at the time? 17 A. Yes. 18 Q. We have heard some evidence from various people thus far 19 about the question of whether we can tell when Y7 was 20 deposited from the fact that it didn't show itself up 21 with the aluminium powder and it did when black powder 22 was applied. 23 On the basis of your experience in this field, can we 24 draw any conclusions as to when the mark was put there? 25 A. No. Obviously, it would be if the print was deposited page 49 1 and you could see the ridge detail in the aluminium 2 powder. Other than that, I don't see how you could 3 tell. 4 Q. So only if you had seen an obvious finger-mark that had 5 been made in the aluminium powder would you be able to 6 tell? 7 A. You could probably say that had been made afterwards, 8 yes, and if that had been visible prior, then there 9 would have been an indication of that having been lifted 10 and taken at that time. 11 Q. Can we take it you did not see anything of that sort? 12 A. No. 13 Q. So the position is that we simply cannot tell whether Y7 14 was deposited before or after the aluminium powder was 15 put on? 16 A. That's correct. 17 Q. I do have just a couple more questions for you, 18 Mr Moffat. 19 I think you actually took a photograph of Y7 on 20 14th January; is that correct? 21 A. That's correct. 22 Q. And I would like you to look, please, just for 23 completeness at 0002, page 1. I think that's your 24 photograph, Mr Moffat? 25 A. Yes, it is. page 50 1 Q. There have been some questions about the way that 2 photographs were taken and we had some evidence about a 3 fixed focus system that was used in taking photographs 4 of this type. 5 Can you tell us whether you used that system in taking 6 the photograph of Y7? 7 A. Yes, that was taken there because we can see the pins 8 from the end of the mechanism which is used for the 9 scale on the photograph. 10 Q. It may be that I can assist here by pointing to what I 11 think you are looking at? 12 A. Would you like me to put an arrow on? 13 Q. If you can, that would be excellent help, Mr Moffat. I 14 am just conscious of the difficulties we experienced 15 yesterday. 16 A. (Indicated) 17 Q. So you put a red arrow at one pin and now at another pin 18 further up. Is it possible to capture that image for 19 the record, please, as Mr Moffat indicating where the 20 pins are that he is talking about. 21 How did the pins work in taking the photograph, 22 Mr Moffat? What are they for? 23 A. They are fixed at a set distance so that once I've 24 photographed, whoever's going to be printing the prints, 25 he will know the distance that these pins are apart. So page 51 1 once he sets up the enlarger or the machine, whatever it 2 is they are using to print the prints, once he sets it 3 up for the first one then every photograph that's been 4 taken with that attachment he doesn't need to realign 5 the enlarger so all the prints can be then be printed 6 off without any further adjustment. 7 Q. Are they a device within the camera or something like a 8 ruler that is actually put up against the print that you 9 are taking? 10 A. No, the base itself it has a lens which fits into the 11 camera and like tripod legs which come out on a frame at 12 the bottom. 13 Q. So this is part of something that's attach to camera 14 that has the pins in it? 15 A. Yes, it is. 16 Q. When we have heard about a fixed focus system that's 17 what we're talking about? 18 A. Yes. 19 Q. We also heard that sometimes it would be possible to use 20 that kind of system and something like a little ruler 21 will have to be placed beside a mark when it's being 22 photographed? 23 A. That's correct. 24 Q. But we can take it the ruler method wasn't what you were 25 using when you took the picture of Y7? page 52 1 A. That's correct. 2 Q. One last question for you. I wonder if you would look, 3 please, at document AA0001 at page 1. I wonder if we 4 could go to the 20.10 entry on the page, please. 5 I have to say I noticed that you have written there 6 that DC Gary Gray had attended but also a DCI Stevie 7 Heath had attended. I just wondered if that is how you 8 referred to Mr Heath when you were speaking to him. 9 What would you call him? Would you call him Stevie? It 10 seems like an odd question but -- 11 A. I don't really recall speaking to him. I mean, I would 12 speak to him directly but I wouldn't call him "sir" or 13 anything, normally. I don't recall talking to him -- if 14 I had something to say to him, I would just say to him. 15 I wouldn't say -- I don't think I would say "Stevie", 16 no. 17 Q. If you ever had cause to speak to him by name -- 18 A. If he's known as Stevie, you know, in broad terms, if 19 somebody said "Who is the DS at Kilmarnock" people would 20 say "Stevie". That's, you know ... 21 Q. Just drawing a possible distinction, is that how people 22 talked about Mr Heath or is that what they would call 23 him when they spoke to him? 24 A. I've no idea. It's not a question I can answer. 25 Q. Well, when you talked about Mr Heath would you refer to page 53 1 him -- 2 A. As Mr Heath. 3 Q. Well, I suppose I'm wondering why you have written down 4 Stevie Heath here. 5 A. Yes. 6 Q. Sometimes people are talked about by a name that they 7 wouldn't use themselves or they perhaps wouldn't be very 8 happy at being addressed with but everybody else will 9 round about refer to them as that. So I suppose if you 10 were talking to Gary Gray about what Mr Heath had 11 ordered you to do you might say, "Oh, Stevie Heath told 12 me to do this"? 13 A. Yes, that's correct, yes. 14 Q. But do you know whether, when people were talking to 15 Mr Heath, they called him Stevie? 16 A. No, I wouldn't have thought so, no. 17 THE CHAIRMAN: He was generally known as Stevie? 18 A. Yes. 19 MISS CARMICHAEL: Thank you very much, Mr Moffat. 20 A. Could I add one further point? 21 THE CHAIRMAN: Yes, certainly. 22 A. Regarding the photographing of that fingerprint, it's 23 the manner I believe this fingerprint's been 24 photographed on other occasions which perplexes me 25 because this photograph, when the experts are asked to page 54 1 come up with an identification on a print, these experts 2 should all be referring to one print only and that's the 3 initial photograph that's taken because -- 4 THE CHAIRMAN: I think there might be many who would agree 5 with you. So one is comparing like with like. 6 A. Yes, because if they are not looking at that initial -- 7 once we've photographed that image, then even hours 8 after that we have no control over that image or what 9 happens to that image due to whatever circumstances but 10 I would like to think when experts are looking at that 11 image that everybody's singing from the same hymn sheet 12 because any other image other than that first image, in 13 my opinion, should never have come into any inquiry if 14 that be the case. 15 THE CHAIRMAN: I think we note your view about that. As I 16 say, others might well share it. 17 I am not sure which order you wish me to take. 18 Shall I take you first, Mr Smith? 19 MR SMITH: I am happy to go first. It seems to be the 20 common approach. Sir, I do have a few questions I would 21 like to ask and the topics are as follows: the first 22 relates to the question of the integrity of the locus. 23 THE CHAIRMAN: Yes. 24 MR SMITH: And in particular this witness's understanding of 25 what kind of investigation was underway. The second page 55 1 relates to the package and whether it was moved to be 2 photographed. I am not sure we covered that. 3 THE CHAIRMAN: That's the Christmas gift? 4 MR SMITH: Correct. The third area is just a few more 5 questions about Gary Gray, in particular his reaction, 6 if any, to the comment that was made. 7 THE CHAIRMAN: Yes. 8 MR SMITH: I wouldn't intend asking very much on that, my 9 Lord. 10 There is then a fourth matter which relates to the 11 time of this witness becoming aware that it may be a 12 police officer's fingerprint that's Y7 and that might 13 become fairly obvious. Those are the areas I would wish 14 your permission seek to ask. 15 THE CHAIRMAN: I think they are all areas I will allow. 16 MR SMITH: Thank you, sir. 17 Cross-examined by MR SMITH 18 Q. Mr Moffat, I am sure you have heard the areas that I 19 wish to try and cover with you. 20 The first of these is the question of the status of 21 the locus when you were there. We have heard some 22 evidence already that sometimes it's known, obviously 23 it's known that it's a murder investigation, sometimes 24 it's unknown, sometimes it's pretty obviously been a 25 suicide. page 56 1 Can I ask what was your understanding at the time you 2 first attended the locus as to whether or not this was a 3 murder investigation, a suicide or just a suspicious 4 death? 5 A. Well, I actually was in the police office -- 6 THE CHAIRMAN: It is very natural to turn to the person who 7 is asking but it makes it very difficult for the 8 stenographer. 9 A. I was actually going into our police office because I 10 think there was instruction for me to phone Kilmarnock 11 Police Office and there was a telex printout of the 12 incident at Kilmarnock and from reading that incident, 13 from that point, as far as I was concerned, it was very 14 much possible in my mind that we were dealing with a 15 murder or a very, very suspicious death and nothing less 16 than that. 17 MR SMITH: I take it that obviously emphasised to you the 18 importance of the integrity of the locus, that had to be 19 organised in such a way that the minimum disruption took 20 place with regards to the premises being patrolled by 21 people who were doing the job they had to do at that 22 time; is that right? 23 A. Yes, that's correct. 24 Q. I think it was put to you there was some other police 25 officers who may have been in what's been described as a page 57 1 living room. It may be difficult for us to understand 2 what was the living room, because I think there were two 3 rooms that might answer that description, but can I ask 4 you this, first of all: where you aware when you were at 5 the premises of any police officer who was inside any 6 room that might reasonably be described as a living room 7 or a sitting room? 8 A. The position I found myself in being at that scene was, 9 you will see in my statement at one point I've referred 10 to personnel who were all there were asked to leave 11 because nothing can be done until the whole scene's 12 photographed and -- sorry, the whole scene is, first of 13 all, videoed and then it's photographed and shortly 14 after my arrival at that scene we've had several police 15 personnel, pathologist, scientist who are following me 16 about and once I've completed one area coming in and 17 having a look. So, no, it's not an ideal situation. 18 Had there been police officers it could very well have 19 been that every member of that personnel from 20 pathologist to sergeants to chief inspectors and 21 inspectors could probably all have been in that living 22 room. 23 Q. Perhaps I can put to you something quite specific just 24 for your comment. You may or may not have seen this 25 taking place, but we have in our possession -- and it page 58 1 has been produced to the Inquiry -- a copy of a 2 precognition or a statement taken from a Constable Lynn 3 Nicol who indicated that on Wednesday 8th January 1997 4 she reported for duty and her tour of duty was 11.00 pm 5 until 7.00 am through the night. I would just like to 6 ask for your comments about her practice, as it were. 7 She says that she arrives at the locus and relieved 8 the late shift personnel and ... can I have just one 9 moment. 10 She indicates that she and her colleague, Constable 11 Hutchison had been issued with protective clothing, were 12 dressed accordingly, went into the house: 13 "... and our movements were confined to the front 14 living room. We had been instructed to remain in the 15 living room and not to move around the house." 16 She also makes reference to the fact that Constable 17 Gary Gray of U Division was also in attendance at the 18 locus, the body was still in situ: 19 "... it had not been removed. As far as I recollect, 20 the police photographer was also present." 21 I am assuming that that description of you being a 22 police photographer -- 23 A. That would be me, yes. 24 Q. -- would be you. 25 Now her indication was what we've heard is that page 59 1 although she had the suit on, protective clothing, she 2 was in fact confined to the living room of the house. 3 Have you any recollection of someone who was there 4 actually in the living room with a protective suit on? 5 A. Yes, there were officers would be -- any officer within 6 that scene should be there with a protective suit on. 7 I've got the problem where I've got to -- I'm going 8 about from room to room videoing, photographing, I'm not 9 keeping track of where particular officers are. 10 Q. Please understand I am not in any sense criticising you 11 for not remembering, I am simply interested in whether 12 from your experience, even way back in 1997, that is 13 something that you would have made comment on if police 14 officers were in a room which, as you well know, was of 15 specific interest later. The room was very carefully 16 investigated. 17 A. Ideally nobody should have been in this room at any 18 time -- or in any of the rooms. We now have a procedure 19 in place which is with a Crime Scene Manager which 20 controls that sort of situation. 21 Q. I think in your statement at paragraph 12 -- I will just 22 read out what you have said -- you say that: 23 "At that point [the point obviously when you are going 24 about your duties] I felt there were too many people in 25 the locus and I suggested to Detective Superintendent page 60 1 Malcolm that he and the rest of his team go back to 2 Kilmarnock Police Office and let me video and photograph 3 the house first." 4 You have written in your statement what happened next 5 but can you just tell us in your own words here and now 6 what Detective Superintendent Malcolm's response was? 7 A. They were all there now and we would work round it. 8 Q. I think in your statement you say after that your 9 reaction was you were not happy with the decision but 10 there was nothing you could do about it? 11 A. It's certainly not an ideal sort of situation we'd be 12 happy with. It's a bit carnival-like, to be honest. 13 Ideally, we want -- what generally would happen with a 14 crime scene is you call in the photographer first of all 15 and the photographer would photograph the 16 scene -- sorry, video the scene at a major incident. He 17 would then start to photograph it and then he would 18 possibly indicate bringing in then forensic scientists 19 or whatever at a particular stage rather than having 20 everybody standing around at the same time. 21 Q. Can I ask you about Detective Superintendent Malcolm: 22 was he wearing a protective suit? 23 A. I can't recall but I wouldn't suggest that he wasn't. 24 Q. Did you see any personnel to your recollection who were 25 not wearing the appropriate clothing? page 61 1 A. No, because I can remember handing out quite a quantity 2 of suits in a black holdall and I can remember supplying 3 suits out to persons that were there. 4 Q. We heard some evidence yesterday that sometimes the 5 senior officers on an inquiry, I think it could be said 6 have some latitude as to whether or not they were 7 wearing protective clothing. 8 Is that something that you agree with or disagree 9 with? 10 A. That's something -- well, no senior officer should have 11 any attitude -- sorry, latitude as to what they are 12 wearing into a crime scene. If they made a decision 13 they are not going to do it that's entirely up to them 14 but you wouldn't accept that as normal practice. 15 Q. The reason I ask is I think Graham Hunter said in his 16 statement -- I think it is paragraph 25 -- that 17 Mr Lauder was not wearing protective clothing. 18 Is that something that you saw? 19 A. I don't recall. I'm not even sure who Mr Lauder is. 20 Q. Very well. As far as you recollect it you thought 21 everyone you saw was dressed appropriately for the 22 locus? 23 A. Yes. 24 Q. I'd like to ask you now if I can about the present. We 25 saw something in the video you recall seeing a Christmas page 62 1 present that caused some interest. 2 Did you actually photograph that at some stage with 3 still photographs? 4 A. Yes, I videoed it first, then I photographed it and took 5 close-ups of it. 6 Q. Did you move it from its position at any stage? 7 A. If it shows that in the photograph then I must have 8 done. 9 Q. Was that for better lighting or a better view? 10 A. Probably to give it a better view to show exactly what 11 it was. 12 Q. Please don't take this as any suggested criticism: was 13 there any other item that you similarly moved in order 14 that it could be photographed in a still photograph? 15 A. Yes, there was. There was a particular jewellery box in 16 one of the downstairs bedrooms -- the bedroom which 17 faces on to the rear porch and this had been -- when you 18 looked in the house, the impression you got was there 19 was a lot of drawers opened and closed. Then again, 20 I've also been told the house had been searched prior to 21 my arrival but it looked as if there was items in the 22 house that had been moved in the search, or is this a 23 search that has been done by somebody breaking into the 24 house or whatever. I don't know. 25 But there was a jewellery box in that particular page 63 1 bedroom, the one with the Hoover which we saw. This was 2 videoed, this was photographed and I opened up the 3 jewellery box and photographed the interior of it to 4 see -- it was just an indication we were trying to 5 establish possibly, if anything, has been missing from 6 this house. So I thought the obvious place to maybe 7 look is to look in a jewellery box to see if there is 8 jewellery taken. 9 I remember being summoned down to Kilmarnock Police 10 Office by Superintendent Malcolm and by Mr Heath to 11 explain why I had opened up this jewellery box. 12 Q. I am sorry, give me just one moment, please. (Pause) 13 I am sorry, could I have just one moment, please. 14 There is a passage I am looking for. (Pause) 15 I would like to ask you if I can about some typing 16 issues, in particular from your statement. Just to 17 place this in context, in paragraph 62 and 63 you 18 indicate from 62 you say your next involvement was on 19 23rd January 1997: 20 "[You] received a message that DI McAllister wanted me 21 to go to the locus with him and review some of the 22 fingerprint marks at the scene. This was a new one on 23 me, I'd never done anything like this before." 24 Before going on can I ask you this: how is it you came 25 up with that date? Is that from your notebook or from page 64 1 something -- 2 A. Yes, I made a note in my notebook. 3 Q. You go on to say that -- I will just read this out 4 because it maybe very important: 5 "I cannot remember if I met him at the locus or at the 6 police office. He wanted to ask for opinion on certain 7 marks at the scene. He was mainly interested in the 8 area around Y7 and Z7. He kept asking about Y7 did, I 9 think it was fresh? When did I think it was made? He 10 asked similar questions about A8, but I indicated that I 11 couldn't give him a timescale, but it did appear fresh. 12 I can't recall the exact words spoken by DI McAllister 13 but that was the nature of his questions. I said I was 14 pretty sure Y7 and Z7 were Gary Gray's. I then went on 15 to explain the touching the doorframe, the burst glove 16 and the faded palm print through the glove theory. 17 DI McAllister clearly indicated that the prints were not 18 Gary Gray's and that they had been identified as 19 belonging to another police officer. He gave no 20 explanation as to the name, age or sex of the officer. 21 By his tone I thought now would be a good time not to 22 say any more." 23 If you take it from me -- well, first of all, can I 24 ask are you quite sure about the date and sequence of 25 events? page 65 1 A. Yes, and that's in my notebook. I'm listening to that 2 specific wording here and he did indicate this as being 3 does it belong to another police officer ... whether or 4 not he specifically said "identified" but he did 5 indicate it belonged to another police officer. 6 Q. If you take it from me, as you may know, it wasn't until 7 11th February, as I understand it, that Shirley McKie 8 was identified by SCRO as the author? 9 A. I don't know when that was made. 10 Q. If you take it from me it wasn't until 11th February we 11 can say there is something that has to be squared off 12 here because 23rd January, if you are correct, an 13 indication is being given to you that a police officer 14 is suspected as being the author of the mark Y7. 15 A. Yes, I totally agree with that. 16 Q. No doubt we will hear how that might be reconciled but I 17 suppose it may be suggested by Mr McAllister either it 18 didn't happen or it happened on a date subsequent to 19 11th February. 20 Can I ask you again how sure are you about the 21 suggestion of the police officer and that it happened on 22 23rd January? 23 A. Well, that is in my notebook and that was the day I was 24 asked to go down there. My immediate boss was Mr Peter 25 Weir, who would have been in my office at the time, and page 66 1 he would know I'd be taking the van down on that 2 particular day. 3 Q. So you are certain, you are positive about the date at 4 least? 5 A. Yes. 6 Q. And you are positive as well about that conversation? 7 A. Yes, I am. 8 Q. You also mentioned that when the conversation took 9 place, I think, with Mr Hogg who was fairly forceful 10 with you, the first conversation you had, "Not going 11 there sunshine", I think is what you said and you said 12 you were a bit distressed about it? 13 A. Yes -- I still am. 14 Q. I am sure you must be distressed about it. Was it 15 something you communicated to your boss? I think it was 16 James Orr, did you tell him what you had been told by 17 Mr Hogg? 18 A. Yes, I did. 19 Q. So I suppose if there's a denial of that we can speak to 20 your boss and he would be able to confirm it? 21 A. Yes, you could and, yes, he could. 22 Q. Did you tell him the detail of what was said by Mr Hogg? 23 A. Yes. It is also possible that there were other staff 24 members in that room as well. I can't recall who they 25 were. page 67 1 Q. Surely. You will understand that from the questions 2 that have already been put to you by Counsel to the 3 Inquiry there is likely to be a denial at least of the 4 tenor of the conversation, if not some of the content. 5 That is why I asked you those who can confirm your 6 version of events; do you understand? 7 A. Yes. 8 Q. You seem to have gone, if I may put it this way, very 9 much out on a limb in this regard explaining what the 10 position actually is. 11 Can I just pick up from something that you were asked 12 earlier. As far as disclosing the question of Gary Gray 13 and whether or not he might have left a fingerprint, you 14 will understand it was being put to you, I think, that 15 this is something you could have explained at a much 16 earlier stage. 17 Can you explain to us again why it was that you didn't 18 mention it when the statement was given to the 19 disciplinary inquiry? 20 A. Yes, because I totally accepted the findings of the 21 Scottish Criminal Records Office giving that 22 identification and I couldn't see any way or any reason 23 at all to mistrust that. That's certainly good enough 24 in my book. 25 Q. You, of course, told Gary Gray at the time that his page 68 1 fingerprint might be there and he should report it? 2 A. Yes. It wasn't anything I was concerned about or -- you 3 know, I thought I was doing him a favour by saying 4 mention it to somebody and I made the phone call ... you 5 know in hindsight now I wondered why I bothered but I 6 did it and it should have been a straightforward -- it 7 should be a straightforward elimination. They maybe 8 said, you know, it's a silly thing. It was just a lapse 9 of concentration. It still happens and always will 10 happen at crime scenes. 11 Q. What was Gary Gray's reaction when you said to him, 12 "Look, you know, get your hand off it"? 13 A. I don't really recall it because it was no big thing for 14 me. What I'm saying -- you know, I noticed a glove 15 burst later on. I haven't indicated remembering seeing 16 him standing there with a burst glove touching the 17 surface. That would have been a whole different 18 scenario. 19 If a glove bursts, it's an indication that quite 20 possibly -- 21 THE COURT REPORTER: I'm sorry, I couldn't catch that. 22 A. It is quite possible that, you know, from how I viewed 23 it that, even though he's there with a burst glove, even 24 though he's leaning on that surface, it's perfectly 25 reasonable that he never, ever left a mark on that page 69 1 surface. 2 MR SMITH: Gary Gray's position, as you will understand is, 3 I think, either this didn't happen or he certainly 4 doesn't have any recollection but -- 5 A. I find that unbelievable. 6 Q. Have you seen Gary Gray since this point in time? 7 A. Yes. I believe he was at the (inaudible) -- there was a 8 gentlemen there called Gary Gray, of that name, but as 9 far as I'm aware there is only one Gary Gray in the 10 Strathclyde Police. I was up there for four or five 11 days in his presence and I never spoke to him at any 12 time about the mark. 13 Q. I suppose people might be wondering whether you have any 14 reason to make this up. 15 Can I just ask you this: have you ever had any 16 difficulty with a working relationship with the police 17 or with SCRO or anyone like that? Is there any -- 18 A. No, I've never had any difficulty at all with SCRO. 19 It's been really difficult since that day carrying on 20 doing what I do. 21 Q. If you want to stop for a few moments I am sure the 22 Chairman will be content to do so. 23 THE CHAIRMAN: Of course. 24 A. No, I will carry on. 25 MR SMITH: I will move on to something slightly different, page 70 1 maybe if you help us -- 2 THE CHAIRMAN: Just give the witness a moment. (Pause) 3 MR SMITH: Are you all right? 4 A. Yes. 5 THE CHAIRMAN: Take your time. 6 MR SMITH: I'd like to ask you about the meeting that took 7 place just before the Asbury trial. You told us there 8 was this conference, I think, was maybe the word that 9 you used. 10 A. That's correct. 11 Q. You have clearly given evidence in a number of other 12 cases before, including murder trials, I presume? 13 A. Yes. 14 Q. Have you ever on any previous occasion had to be at a 15 conference of that kind? 16 A. There might have been -- I mean, I don't recall -- I 17 wouldn't deny that. It could very well have been with a 18 big trial coming up you do have a briefing, you know. 19 But how that one was instigated was quite unusual. 20 Q. What was unusual about it, if I may ask? 21 A. In the fact that what was mentioned, what was said to me 22 by Iain Hogg to watch how my reaction, how I act in the 23 witness box. 24 Q. What did you understand he was trying to get you to do? 25 He said stick to your statements but what were you page 71 1 taking from that? 2 A. I don't know. I didn't speak to Mr Hogg regarding that. 3 Like perhaps there's a lot of things here discussed here 4 today that probably aren't written down in statement 5 form, just general expressions, general opinions. 6 Q. I think you also said in your statement but I don't 7 think you said today, just so we understand it, do you 8 feel that your stance on this has in any way affected 9 your career? 10 A. Yes, I do feel that way. Stuart also made a comment 11 about anybody involved with that inquiry wouldn't be 12 going much further with their careers. However, I took 13 that with a distinct pinch of salt at the time. But 14 from that time and that phone call I've felt as if I was 15 totally isolated from the management. I felt as if I'd 16 been looked down upon. I don't think that I ever went 17 back for a long, long time to any major examination to 18 carry out fingerprint work. It was a long time before I 19 got involved. I was kept out on the run-of-the-mill of 20 things, unless I was actually on-call when they wouldn't 21 have control over that. I've always felt as if I've 22 been put down by Mr Hogg in comments, no gratitude shown 23 for a lot of things that I've done. 24 I've been involved in quite a few outstanding 25 inquiries. Just to give you a sort of example I found, page 72 1 for example, ear prints which turned out to be the first 2 ear prints in Scottish criminal history that proved a 3 conviction in court and that was just fobbed off; an ear 4 print that produced the first DNA ident at a murder 5 scene, very good. That was part of an inquiry where the 6 information recovered the biggest single arms recovery 7 of firearms in Strathclyde Police history, very good. 8 I felt it was just a constant put-down and detrimental 9 to myself. 10 MR SMITH: Thank you very much. 11 THE CHAIRMAN: Mr Holmes have you any application? 12 MR HOLMES: Thank you, Mr Chairman, there are a couple of 13 matters. The first relates to the video and the second 14 relates to the incident with PC Gray's glove. 15 THE CHAIRMAN: Yes. I will allow both. 16 Cross-examined by MR HOLMES 17 Q. Firstly, Mr Moffat, can I ask in relation to the taking 18 of the video you mentioned that you also took still 19 photographs of a number of items and we saw the 20 photographs of the Christmas present that you had taken. 21 A. Yes, I did. 22 Q. You said that you had perhaps moved the Christmas 23 present and you had moved a jewellery box when taking 24 the still photographs; is that correct? 25 A. Yes, that's correct. page 73 1 Q. Did you do that before or after you took the video? 2 A. The video would be done first, always. 3 Q. The video would be done first. In that case, I wonder 4 if we could have a look at a very specific part of the 5 video recording, if I just get the time for you. It is 6 approximately 22 minutes and 30 seconds in. 7 THE CHAIRMAN: I was going to ask the witness to look at the 8 still photographs and tell us if there was any 9 photograph which had been taken before any movement had 10 taken place so to have that on the record. 11 While we are waiting for the video it might be 12 convenient if we can -- I am afraid I don't know the 13 number of the still photographs. 14 MISS CARMICHAEL: ST0003 is the set we have been looking at, 15 sir. 16 THE CHAIRMAN: What I would really like to know is are there 17 still photographs, any of the still photographs that you 18 can say, "I took that photograph before any movement, 19 before moving the gift"? 20 A. Yes, there should be, yes. 21 THE CHAIRMAN: Would you be good enough so we have on the 22 record the original position. 23 MISS CARMICHAEL: I am very sorry to interrupt at this 24 point. I should say the sequence of photographs 25 involves in its totality some distressing photographs page 74 1 and I just wanted -- 2 THE CHAIRMAN: I think if somebody could just tell us which 3 numbers have the gift tag. 4 Is that possible without us all having to -- 5 MISS CARMICHAEL: It may be possible for us to do something 6 in the background here to avoid the need to go through 7 every single one of the photographs, sir. I am sorry to 8 interrupt. 9 THE CHAIRMAN: You are quite right to remind me. It is 10 distressing enough to watch the video even in its edited 11 form. I don't want to add to that. 12 MISS CARMICHAEL: Sir, I think we have the video now so it 13 may be that can be proceeded with and we will try to 14 sort out the photographs if it would be helpful to you, 15 sir. 16 THE CHAIRMAN: I am wondering if it would be convenient to 17 deal with the gloves issue while the technology is -- or 18 do you want both? 19 MR HOLMES: I think that may take some time so if the video 20 is available, then hopefully that can be dealt with 21 fairly quickly. 22 MISS CARMICHAEL: Sir, it has been brought to my attention 23 by our witness liaison officer that Mr Moffat may need a 24 break. 25 THE CHAIRMAN: Very good. You would like a break, page 75 1 Mr Moffat? 2 A. No, I am fine. 3 MISS CARMICHAEL: I appreciate we are receiving conflicting 4 messages but I am -- 5 THE CHAIRMAN: We will take a short break. 6 (12.34 pm) 7 (A short break) 8 (12.43 pm) 9 MR HOLMES: Sir, the video has been paused at what I think 10 is the appropriate moment. 11 If I could ask the witness, Mr Moffat, is that the 12 same room that the jewellery box that you were speaking 13 about was in? Can you tell from that shot? 14 A. I can't tell from that shot, no. (Pause) 15 Q. If we can wind it back slightly from where the shot is 16 so Mr Moffat can see whether it's the same room. 17 THE CHAIRMAN: You must have had a very steady hand when you 18 take this video or do you do it on a stand? 19 A. No, because if you move a video recorder too quickly 20 people watching it feel sick. (Pause) 21 This is the same room. 22 MR HOLMES: Are you able to say where the jewellery box was? 23 A. This is my original video yes. 24 Q. Yes. 25 A. This is how I found it, as I found things. So wherever page 76 1 you see things in place at that time that's where it was 2 when I was there. 3 Q. Can you let the camera sweep round past the bedside 4 table. 5 Are you able to indicate when the jewellery box you 6 were speaking about comes on to the screen? 7 A. I don't recall exactly which jewellery box it was. If 8 you look here, there's various items here. It could 9 possibly have been this one here. (Indicated) 10 Is that a jewellery box? 11 Q. Which item are you indicating? 12 A. The white, the large white square item on the bed. 13 THE CHAIRMAN: It's the white box closed box lying on the 14 bed, is it? 15 A. Yes. What you should see is a view of -- in the video 16 and then a still photograph and then you will see a view 17 of the item in an open position, whichever item it was. 18 MR HOLMES: If we can move on to the still shot of 19 that ... it's at 22.47. 20 It's not very clear, I'm afraid, from the still 21 shot, Mr Moffat, but are you able to see there is a 22 layer of dust on the table you are looking at? 23 A. Yes, that appears so, yes. 24 Q. Can you see there are voids in that dust? 25 A. Yes. page 77 1 Q. Would it appear to you that there have been items or an 2 item moved? 3 A. Well, if you are accurate in saying that that is in fact 4 dust and not a stain on the surface, then I would agree 5 with that. 6 Q. Thank you. That is all from the video, thanks. 7 It has already been put to you, Mr Moffat, that your 8 account of Gary Gray potentially leaving a fingerprint 9 at the scene does not square with some of the other 10 accounts that the Inquiry has had access to. I would 11 like to put some of those other accounts to you and ask 12 you to tell me what you think of those. 13 I think you have already been asked about the 14 statement that you gave to Chief Inspector Wilson in 15 June of 1997 and you accepted, I think, that there is no 16 mention of the incident with Gary Gray in that 17 statement; is that correct? 18 A. That's correct. 19 Q. Neither is there any mention of the incident with Gary 20 Gray in the statement given by you to the Mackay team in 21 2000; is that correct? 22 A. I don't recall. 23 Q. Well, the statement that was put to you CO1378 -- 24 A. Yes, that would be correct. I'm just trying to figure 25 out the timing of -- page 78 1 Q. That statement appears to have been given in 2 August 2000? 3 A. August 2000 -- 4 Q. It is headed up as being the Malcolm report. There is 5 no mention of Gary Gray in that statement; is that 6 correct? 7 A. That's correct. 8 Q. And neither of your notebooks around the time make any 9 mention of Gary Gray potentially leaving his fingerprint 10 at the scene? 11 A. That's correct, yes. 12 Q. You do note down in the notebook that has been shown to 13 you already a visit to the scene with DI McAllister on 14 23rd January 1997; is that correct? 15 A. That's correct, yes. 16 Q. There is no mention of the incident with Gary Gray nor 17 indeed any conversation that you might have had with 18 DI McAllister in that notebook. Would you accept that? 19 A. Yes, I accept that, yes. 20 Q. You make no mention of the incident in the statement 21 given by you, it is CO40142? 22 A. Yes, but as I have indicated the time that I felt it was 23 appropriate to speak about this, about Mr Gray, was when 24 I first learned that there would be a challenge to the 25 identification of the print and the SCRO had possibly page 79 1 made a mistake. That's why nothing was said prior to 2 that. 3 Q. Indeed and you have mentioned the conversation that you 4 had with DI McAllister about that. DI McAllister in his 5 statement to this Inquiry has indicated that that 6 conversation did not happen. 7 A. Well, I disagree with that totally. 8 Q. Has DI McAllister simply forgotten this conversation 9 took place? 10 A. Sorry, could you repeat that? 11 Q. Has DI McAllister simply forgotten this conversation 12 took place? 13 A. You would need to ask DI McAllister his recollection of 14 that. 15 Q. DI McAllister has been asked, Mr Moffat, and if I can 16 show you his statement, it is at paragraph 73 of his 17 statement. I am afraid I don't have a reference number 18 to hand. It is FI0068. 19 THE CHAIRMAN: Is there a particular paragraph? 20 MR HOLMES: It is paragraph 73, sir. 21 That paragraph says Mr Moffat: 22 "I am aware that Mr Moffat has said that during that 23 meeting I am alleged to have confided to him that I 24 believed the mark Y7 had been identified as belonging to 25 a police officer. I had no knowledge that would allow page 80 1 me to make such an assertion and I did not make such a 2 remark." 3 What is your reaction to that, Mr Moffat? 4 A. Total disagreement. 5 Q. "The allegation is untrue", says DI McAllister. What is 6 your reaction to that? 7 A. I don't agree with that at all. I think the man's 8 telling lies. 9 Q. DI McAllister then goes on to say: 10 "Mr Moffat similarly did not pass any comment as to 11 the possible identity of the fingerprint. There was no 12 discussion of a glove having burst at the scene nor any 13 mention of Detective Constable Gary Gray." 14 What is your reaction to that? 15 A. It's lies. 16 Q. "Had I received such information I would have passed it 17 on to the SCRO as part of my liaison function. I would 18 not have speculated with anyone about the mark." 19 He then goes on to mention that he does not recall: 20 "... expressing any specific view that mark Y7 was 21 that of a woman or child." 22 He says the first time he: 23 "... became aware of these allegations was in 2000 24 during the Tayside Police inquiry." 25 What is your reaction to that? page 81 1 A. I don't agree with what Mr Gray is saying 2 there -- sorry, what Mr McAllister is saying. 3 Q. You mentioned in your evidence that you had also spoken 4 to Chief Inspector Hogg about this incident. 5 A. Yes. 6 Q. Chief Inspector Hogg wrote a memo to Detective 7 Superintendent Malcolm. It is CO1460. It is dated 8 17th July 2000 which would have been after the time that 9 you discussed this matter with him; is that correct? 10 A. Yes. 11 Q. Can we move on a page, please. This memo -- and I will 12 give you the opportunity to read it -- makes no mention 13 of this incident of any report by you to Chief Inspector 14 Hogg of this incident. 15 A. Okay. This memo -- sorry, just to clarify does this 16 memo come out after when I've -- after I've had that 17 phone call with Iain Hogg regarding getting the print 18 checked? 19 Q. Say again please? 20 A. Has this memo been issued after the time when I've 21 phoned Iain Hogg and asked him can I have the print 22 rechecked. 23 Q. It's dated 14th March 1997. 24 A. Do we have a date for when it was ... 25 THE CHAIRMAN: If you need to look at your statement at all page 82 1 please do. 2 MISS CARMICHAEL: I am trying to do that, sir. I think it 3 is possible that there may have been some initial 4 confusion about the date of this document because a 5 number of the documents in the Inquiry, if this is of 6 assistance to others, are attached with the covering 7 notes that they came from, from the Mackay Inquiry. A 8 number of them have dates in July 2000. That is, I 9 think, sometimes the date that the document has been 10 seized by those dealing with it at Tayside Police and 11 that may not be the date of the document itself which I 12 think we see on the document itself as 14th March 1997. 13 I think that what we have been told by this witness 14 already when he spoke to Mr Hogg was it was shortly 15 before Shirley McKie's trial and we know her trial took 16 place in about May 1999. 17 THE CHAIRMAN: Yes. So this precedes by some years then. 18 MR HOLMES: That is correct. I will move on, sir. 19 I think the way forward is if I refer you directly 20 to the Mackay report, Mr Moffat. That is CO0005. It is 21 page 68 of that report. I think it is at page 68 of the 22 document rather than page 68 of the report. It is 23 paragraphs 7.9.18, 7.9.19 and 7.9.20 that I am 24 interested in. (Pause) 25 A. Okay. page 83 1 Q. Again, we see from those paragraphs that DI McAllister 2 has given an account denying the conversation ever took 3 place between yourself and him about the origins of Y7 4 and the possibility that that was Gary Gray's 5 fingerprint? 6 A. I disagree with Mr McAllister. 7 Q. You see another officer who was present has been asked 8 about it and again denies any knowledge of this 9 incident? 10 A. Yes, well, that's ... I disagree. 11 Q. If we move out from those three paragraphs to see that 12 same page again, at the bottom of the page, Mr Moffat, 13 at 7.9.22 you will see a paragraph that says: 14 "It is the view of the Enquiry Team that there is no 15 evidence to corroborate witness Moffat's statement and 16 the weight of evidence supports witness McAllister's 17 position that he had no knowledge of the donor of the 18 mark until 11th February 1997." 19 What your reaction to that? 20 A. Well, I can't disagree with that because I wrote nothing 21 down and it was word for word, one version versus 22 another version. 23 Q. So you would agree with the conclusion of the Mackay 24 team that there is apparently no evidence to support the 25 account that you have given of the incident page 84 1 involving Gary Gray? 2 A. Yes, I would agree with that, yes. 3 Q. In which case there is only one more thing I have to ask 4 which is that you recovered the fingerprints from the 5 doorframe and on that doorframe there were Y7 and Z7; is 6 that correct? 7 A. Yes. 8 Q. If, as that report states, the Mackay team had Y7 9 checked and it's not the fingerprint of Gary Gray, where 10 is Gary Gray's fingerprint? 11 A. Say that again. 12 Q. The Mackay report states that Y7 has been checked and it 13 is not the fingerprint of Gary Gray? 14 A. It's not the fingerprint of Gary Gray? 15 Q. It's not. 16 A. Then if that's not Gary Gray's fingerprint, then I would 17 believe that's Shirley McKie's fingerprint. That's one 18 of the answers I've been asking for for quite a number 19 of years and nobody came back to me with a reply to 20 that. I've sent several requests to have that 21 information passed to me expressed to the Tayside Police 22 saying I would like to know, after the interview, is 23 that correct, they ruled out that fingerprint and they 24 came back to me with no further information and that's 25 the first time I've been told that. page 85 1 So if that's not Gary's fingerprint, there's no doubt 2 in my mind that that fingerprint belongs to Shirley 3 McKie. 4 Q. Just to clarify Y7 and Z7 are the only fingerprints or 5 Y7 is the only fingerprint that's on that door post; is 6 that correct? 7 A. Y7 and Z7, yes. 8 Q. Z7 being a palm-print? 9 A. Well, we have it in the print-out of the document if 10 you're saying that, yes. 11 MR HOLMES: Thank you. 12 THE CHAIRMAN: I am anxious to conclude this witness if I 13 can. I realise it is just after 1.00. 14 Miss Grahame, do you have any questions to ask? 15 MISS GRAHAME: I have no questions. 16 THE CHAIRMAN: Mr Macpherson? 17 MR MACPHERSON: No, thank you, sir. 18 MR SMITH: Sir, I wonder if I could ask a couple of 19 questions. It is literally just a couple of questions 20 follow up to what has been asked by Mr Holmes. You will 21 appreciate, sir -- 22 THE CHAIRMAN: I am sure you will be as concise as you can 23 be. 24 MR SMITH: I will be, sir. It is relating to the last few 25 comments. page 86 1 THE CHAIRMAN: Yes. 2 Further cross-examination by MR SMITH 3 Q. Mr Moffat, obviously you will have to wait and see what 4 examination was carried out with regards to the 5 fingerprint Y7 in comparison with Gary Gray's. 6 You say you have no doubt it would be Shirley McKie's 7 if it's not Gary Gray's. 8 A. Yes. 9 Q. I want to be clear about it: when you saw Mr Gray 10 leaning against the doorframe at the side of the door 11 you did not see, did you, whether or not his glove was 12 torn? 13 A. That's correct, yes. 14 Q. If the glove had not been torn at that time would he 15 necessarily have left any fingerprint? 16 A. Well, my concern then was it possible that a piece of 17 print transferred through a piece of rubber glove but 18 that's very, very unusual but not impossible but I 19 wouldn't have expected it. 20 Q. So just to be clear about it, if he did not have a torn 21 glove at that point he may have been leaning against the 22 door and the fingerprint Y7 was found it maybe AN Other, 23 someone else? 24 A. Yes, that's correct. 25 MR SMITH: Thank you. page 87 1 THE CHAIRMAN: Have you been able to select the photographs 2 just so we know which is the unmoved gift. 3 MISS CARMICHAEL: I am not sure that what I have found will 4 be much help but it may be worthwhile trying to clarify 5 with the witness, in what I hope will be a short 6 sequence of questions. 7 THE CHAIRMAN: I am sure you would prefer to conclude your 8 evidence before we break. 9 Re-examined by MISS CARMICHAEL 10 A. Yes. Could I have a picture of Y7 brought back up on to 11 the screen? 12 MISS CARMICHAEL: That was not immediately what I planned to 13 ask you about, Mr Moffat. Before turning back to 14 photographs which the Chairman had mentioned, just to 15 clarify one point. You mentioned when Mr Smith was 16 asking you questions that you had made a note in your 17 notebook about meeting with Mr McAllister. 18 A. Yes. 19 Q. I wonder if we could just look quickly at AH0002 at 20 page 8. If we look at the left-hand page there's an 21 entry for Thursday, 23rd January 1997 and you record 22 there, I think, "attend at locus with DI McAllister, 23 review position about outstanding fingerprints." 24 A. Yes. 25 Q. So it would be fair to say you noted the meeting in your page 88 1 notebook but lest there be any doubt there isn't any 2 mention there of any detail of what your conversation 3 was? 4 A. That's correct. Mr McAllister hasn't given an 5 indication as to why he never took Stuart or Graeme with 6 him to this scene? Why? 7 Q. Mr McAllister will be a witness here and no doubt 8 questions that are appropriate for Mr McAllister will be 9 asked of him at that time, Mr Moffat. 10 Turning to the photographs, could we look, please, at 11 ST0001 at page 3. This seems to be a close-in shot, 12 Mr Moffat, and I am wondering if you can tell us to the 13 best of your recollection whether this is the picture 14 that you think may have been taken once you had moved 15 the item to get a better view or whether that is in the 16 position that you found it? 17 A. No, that's not in the position it was found. It would 18 probably have been moved by myself at that point for 19 photograph it. 20 Q. I am sorry, I didn't mean to cut you off there. 21 A. Yes, we would see quite clearly in the video that I 22 think it's sitting further up. 23 Q. So the best view that we have thus far at least of where 24 it was before you moved it to take this picture is what 25 we saw when we paused the video -- page 89 1 A. Is there not a still photograph of that showing the same 2 position as the video? 3 Q. Regrettably, the best efforts of myself and the lady 4 sitting beside me have not located that for you. There 5 is another photo, which I fear may not come up very 6 clearly on the screens, but we should perhaps give you 7 the opportunity to look at it here. There was some 8 difficulty when it was shown to you before. It is 9 page 38 of ST0003. 10 I think what we see in this shot is the room where you 11 found the parcel that we've just been looking at and if 12 we look at the door which is just in the centre of shot 13 there, would I be correct in saying that the nest of 14 tables is located effectively part way down the door 15 here? I appreciate it is not particularly easy to see. 16 I think we have been able to place an arrow. 17 A. Yes, I see where the tables are now, yes. 18 Q. In relation to this shot, can you tell us whether where 19 we placed the arrow shows us the position of the parcel 20 on the table before you moved it or afterwards? 21 A. I think perhaps round about there (indicated). 22 Q. We have two arrows pointing to the same thing which are 23 roughly to the left on the shot of the third arrow. 24 What are you pointing at with the two arrows that are to 25 the left of this shot? page 90 1 A. Well, you have indicated that's that set of stacking 2 stools or stacking tables so I think on the video we see 3 the package is sitting on the top one although ... 4 THE CHAIRMAN: You would say the video is the best version 5 of it. 6 MISS CARMICHAEL: It may be, with that in mind, it may not 7 be productive to try to use the photographs on this 8 topic, sir. 9 THE CHAIRMAN: I do not think it is. 10 MISS CARMICHAEL: I am obliged. 11 One point, you were shown a section of the video 12 again when Mr Holmes was asking you questions, 13 Mr Moffat -- 14 A. Can I highlight another point regarding that package? 15 There was a lot of emphasis put on that package that 16 day. As you can see, there's a tear in it and there was 17 the bit about getting this package taken up to 18 headquarters as soon as possible for fingerprint 19 examination. 20 Q. Thank you for that. 21 You were shown a section of the video again when 22 Mr Holmes was asking you questions and the video was 23 paused at a section where we were looking at what looked 24 like a dressing table beside the bed and I think 25 Mr Holmes suggested to you that what we may be seeing page 91 1 there is a clean area in an otherwise dusty surface. 2 A. Yes. 3 Q. Now are you able to tell today from looking at the video 4 whether we are looking at a clean area in dust or I 5 think you otherwise suggested might have been a stain? 6 A. I can only go from what I've seen on that screen there. 7 I've no recollection of whether there was dust or 8 whether it was a stain. 9 Q. It is not something that you can remember from the time 10 seeing a dusty area and thinking, "Well, something's 11 been taken away"? 12 A. That's correct because there's so many items in that 13 house and anything which I felt was quite obvious I've 14 tried to capture with the first video. But, don't 15 forget, we were going to be there for a few days; so 16 anything that was going to be highlighted later on could 17 quite easily have been re-videoed or photographed during 18 the search initially going to do, followed by a 19 sustained forensic thorough search. 20 Q. But ultimately you can't help us very much today from 21 your memory at the time as to just what it is on the 22 portion of the video -- 23 A. It's very, very difficult to do that bearing in mind I'm 24 looking through a very small eye piece of a video 25 camera. page 92 1 Q. Nobody is criticising at all. I am trying to clarify -- 2 A. There's nothing sprung out at me if that's ... 3 Q. Finally, in relation to what you said about mark Y7 when 4 Mr Holmes was asking you questions, the fact is it's 5 just quite possible, is it not, that we don't know who 6 Y7 belongs to? 7 A. That's correct, yes. Could I see Y7 back up on the 8 screen, please? 9 THE CHAIRMAN: Could you have Y7 on the screen. 10 MISS CARMICHAEL: The reference is PS0002, sir. 11 A. I may be in a very, very unfortunate position of having 12 witnessed something which is quite unusual because I've 13 seen, in what I've said, an officer standing in that 14 area and if you want to see how I've came to that 15 certain conclusion about this possibility, if you look, 16 it would appear in the next -- I think the next person 17 will correct me if I'm wrong -- but that would appear to 18 be a palm-print on the lower part and the print above 19 it, Y7, is certainly darker, which is why I thought 20 there might have been a possibility of a glove and a 21 burst -- of a hand with a glove with a print 22 transferring through. And also if a glove's torn, then 23 the print on top would be darker and that's why I came 24 to that conclusion and if that's not the right 25 conclusion, well, I wouldn't change it. Just being page 93 1 privy to having witnessed one situation and how it 2 developed, I had no control over it. 3 But I felt that once -- that's why it's taken two 4 years into the Inquiry before you see anything in my 5 statement to start thinking, okay, we need to come up 6 with that at that time but we need to start looking 7 somewhere to see if there's a mistake gone wrong 8 somewhere and that's why I introduced it then, but up 9 until that point I wouldn't criticise any fingerprint 10 expert. 11 Q. Thank you, Mr Moffat. I don't have any further 12 questions for you but just to get the position of that 13 last part of the reference into the notes, when you are 14 talking about what you refer to as a palm-print, you are 15 referring to a mark which is to the left on the image of 16 a label that bears Z7 at the end of the number; would 17 that be correct? 18 A. That area there. (Indicated) 19 Q. Thank you very much if we can just capture that image to 20 record Mr Moffat's position on that but I don't have any 21 further questions. 22 THE CHAIRMAN: There is a little I would like to ask you, 23 Mr Moffat, that would be very helpful. 24 While preserving the scene in a murder, do you 25 normally allow the undertakers to come in to move a body page 94 1 or do the police prefer to do it or the Scenes of Crime 2 Officer prefer to do it themselves so that the risk of 3 contamination as seen by outsiders doesn't arise? 4 A. It's not just contamination; there's an intelligence 5 issue there. If public -- people who come in to lift 6 the body, the undertakers, if they come in, then they 7 have visual knowledge of exactly how that body's lying 8 at the scene. You don't want that going out there into 9 the public domain because if that was in the public 10 domain, it's not the first time somebody's admitted to a 11 murder when they haven't done it and if they come in and 12 give specific information as to what's inside the scene 13 on the basis they have heard the story, that could be 14 quite feasible. So you really don't want any members of 15 the public at all coming in and viewing a body in a 16 scene and that's -- 17 THE CHAIRMAN: So you normally then wouldn't -- you would 18 prefer to do it yourself? 19 A. I wouldn't say it's maybe never happened but you 20 wouldn't expect that to happen. 21 THE CHAIRMAN: The second question, quite a different thing 22 I wanted to ask you was we have heard that you can 23 accidentally in lifting a mark or -- yes, particularly 24 in lifting a mark, leave your own personal, an officer, 25 Scenes of Crime Officer, could leave their own print. page 95 1 If that happens, is that reported to the Scottish 2 Criminal Record Office saying, "This could well be my 3 print because I accidentally touched the point" -- 4 A. If you were aware of it, yes, but what used to happen 5 these fingerprint lifts we used to -- it is almost 6 impossible to lift actually with gloves on; you have got 7 to take your gloves off to put the tape on to the 8 acetate and quite often you would see your prints on the 9 tape. So what we used to do is put an X through the 10 prints which we thought which we knew to be our own 11 because more often than not the print you were lifting 12 would be more or less in the centre of the piece of 13 acetate for an officer to be in that position where he's 14 left his print on a tape, it's probably happened quite a 15 few times. 16 THE CHAIRMAN: I was just wondering whether you leave them 17 to it or whether if you know, fine, well, that it is 18 your print accidentally that has got there, do you tell 19 them that that is so? 20 A. No, SCRO -- well, if we knew -- you know, if we knew we 21 left it on, quite often sometimes officers cut it off if 22 they know for sure it's theirs. But, in general, if 23 SCRO pick that up, then it's perfectly acceptable. It's 24 perfectly acceptable to have police officers' 25 fingerprints found at scenes and we should never have page 96 1 got to this stage for any inquiry of an officer leaving 2 a print at the scene. 3 THE CHAIRMAN: The last thing I wanted to ask you is this: 4 when did you first know, and I mean know or gather 5 either officially or unofficially, that this Y7 could be 6 DC Cardwell's print or DC McKie? Can you remember when 7 that would have been? 8 A. That would have been some time after the announcement 9 from the Scottish Criminal Record Office. 10 THE CHAIRMAN: Because in March when you were being 11 interviewed you were being asked had you seen her at the 12 scene, did it strike you then that must be some question 13 about it being her print? 14 A. Yes, that was probably taken into consideration but I 15 can't ever recall having seen that officer at the scene. 16 In fact, I looked in my notebook and see the forensic 17 scientist was Martin Fairley and I don't remember Martin 18 Fairley being there, although I know Martin Fairley 19 fairly well. If I walk by him in the street, I know who 20 it was. But, you know, didn't have any recollection of 21 Martin Fairley visually being there. 22 THE CHAIRMAN: And I take it that from what you said you say 23 Mr McAllister said it was a police officer's print, Y7? 24 A. Yes. 25 THE CHAIRMAN: So when you were being asked had you seen page 97 1 DC Cardwell at the scene, did you put two and two 2 together and assume that it was Y7 that they were 3 investigating, so far as she was concerned? 4 A. That's what he said to me. He said to me the print 5 wasn't Gary Gray's, it was another police officer's. 6 Whether or not he said identified, right, but he said it 7 was another police officer's print. Well, I wouldn't 8 have had any recollection as to who that was because and 9 I wasn't concerned about it because I'm aware there have 10 been several police officers in that scene from all 11 staff and what really defies me more than anything else 12 is there's only one group of experts that put a name to 13 that fingerprint. That fingerprint has to come from one 14 of us within that scene. 15 THE CHAIRMAN: What I was trying to get clear in my own mind 16 was you have been told or you gathered that it was a 17 police officer's print and then you were being asked had 18 you seen Shirley McKie at the scene. 19 A. Yes. 20 THE CHAIRMAN: Did you add two and two together and say that 21 must be the person whose print they think is Y7 or did 22 you know that already? 23 A. No, no. I didn't know who this print belonged to other 24 than I thought it was Gary Gray's, if it wasn't his 25 then ... if it's not a police officer then whose it page 98 1 would have been I wouldn't have had any idea. 2 THE CHAIRMAN: I am really asking you about March 1997 when 3 you were being asked did you see her at the scene. 4 A. No. 5 THE CHAIRMAN: You were not adding two and two and assuming 6 that must be because Y7 was hers. 7 A. No. 8 THE CHAIRMAN: Thank you very much and I am sorry, you have 9 had a long spell but thank you for your assistance very 10 much. 11 (The witness withdrew) 12 We have overshot quite a lot so I think if we sit at 13 2.15 that would be long enough. 14 (1.25 pm) 15 (Luncheon Adjournment) 16 (2.16 pm) 17 THE CHAIRMAN: I think should say that because I let things 18 run on this morning and we are starting late this 19 afternoon we will do without a break this afternoon but 20 obviously if the stenographer wants to stop we will 21 allow it but we will see if we can keep going. 22 MISS CARMICHAEL: The next witness, sir, is John McMenemy. 23 JOHN FRANCIS McMENEMY (sworn) 24 THE CHAIRMAN: Perhaps we could have your full name. 25 A. My full name is John Francis McMenemy. page 99 1 Examined by MISS CARMICHAEL 2 Q. Mr McMenemy, sometimes it's difficult to hear people in 3 this hall and we've generally found it is helpful if you 4 have the microphone quite close so that might be useful 5 for you to know. 6 A. Is that okay for a sound check? 7 Q. I see nods from the back of the hall, Mr McMenemy, so 8 thank you very much. 9 I think you have prepared a written statement for the 10 Inquiry? 11 A. I have indeed. 12 Q. Which you have signed. 13 A. Yes. 14 Q. You are content that that is a truthful record of -- 15 A. Yes, apart from one thing I've got to recant. I think, 16 at one of the stages I say that people on petition for 17 murder were bailable. That's an error on my part. In 18 1997 they weren't bailable. That changed just about the 19 turn of the century, so my recollection to that extent 20 was wrong. 21 Q. I think we can time it probably to when the Human Rights 22 (Scotland) Act came in? 23 A. That's correct -- I couldn't be exact when it came in 24 but 2000. 25 Q. We will note that correction to your position, page 100 1 Mr McMenemy, but otherwise you are content? 2 A. I am, yes. 3 Q. Now in your statement you tell us that you were 4 Procurator Fiscal Depute and then Senior Procurator 5 Fiscal Depute for the better part of 30 years? 6 A. Yes. 7 Q. For the benefit of those who may not be familiar with 8 the role of a Procurator Fiscal Depute or a Senior 9 Depute, can you describe briefly the duties and 10 responsibilities of that role? 11 A. Well, the supreme person in Scotland, of course, is the 12 Lord Advocate and Procurators Fiscal, effectively I 13 think there are, in areas throughout the country they 14 all hold an authorisation or commission from the 15 Lord Advocate to basically act on his behalf or on 16 behalf at the present time in particular areas. The 17 thing is that the investigation and prosecution of crime 18 and there being no Coroner in Scotland the Procurator 19 Fiscal carries out the duties normally done by a 20 Coroner, basically the investigation of sudden 21 suspicious deaths, et cetera, so that's by and large. 22 There are other things added on if somebody finds 23 Roman coins or something like that then they are 24 supposed to bring them to the Fiscal but by and large 25 its investigation and prosecution of crime and the page 101 1 investigation of sudden and suspicious deaths would 2 probably suffice for now. 3 Q. In paragraph 1 of your statement, you mention that in 4 1997 you were working in the Kilmarnock Fiscal's office 5 and you had particular responsibility there for the 6 throughput of solemn work? 7 A. That's correct. 8 Q. Again for those who might not understand what that is 9 can you tell us? 10 A. Well, there are two methods of prosecution, summary 11 prosecution which a person is prosecuted before a judge 12 sitting alone, it might be a Sheriff in Glasgow, it 13 could be a stipendiary magistrate and in the local 14 district courts it's basically a justice of the court, 15 who's effectively a lay person. So that's summary 16 prosecution. 17 There's no jury sitting on, deliberating on the facts. 18 The person on the bench is judge and jury for that 19 matter. The penalties are small in comparison to the 20 sentencing powers which would be available to someone 21 sitting in a solemn court. 22 Solemn court is where a judge sits with a jury. It 23 can either be the High Court or the Sheriff, local 24 Sheriff, sitting with a jury and, again, the powers of 25 sentencing are much, much higher than you will get in page 102 1 the ordinary summary court. 2 I mean, I think in 1997 a Sheriff sitting with a jury 3 was empowered to pass a sentence of imprisonment of 4 3 years. That has since gone up. In fact, not all that 5 long before that his maximum power was 2 years but it's 6 gradually increased and, of course, a judge sitting in 7 the High Court dealing with any common law crime has a 8 power to sentence a person to imprisonment for life as 9 well. 10 So that's the relative standards. Certain crimes like 11 murder are prosecutable only in the High Court of 12 Justiciary. Treason is another one. 13 Q. So solemn cases are the serious criminal cases? 14 A. Serious or sometimes not so serious but sometimes where 15 you have a serious offender with a long criminal record 16 who any time they do step out of line could expect to 17 receive a condign sentence and could be facing a 18 long-term even for, say, for a relatively small theft or 19 something or a small house break-in. If they've got a 20 track record which suggests that they should be heading 21 for a long sentence, then that would have to be taken in 22 the solemn court. 23 Q. You mentioned your role as responsibility for the 24 throughput of solemn work of serious criminal work at 25 Kilmarnock. Would that make you the first point of page 103 1 contact for the police -- 2 A. No. No, not necessarily. In a murder case, the first 3 point of contact would be the on duty Procurator Fiscal. 4 When a body is discovered at a locus and it's still in 5 situ, hasn't been removed to a hospital or anything like 6 that, if the person is pronounced dead at the scene of a 7 crime the body remains in situ and the Procurator Fiscal 8 is called in because at that point it's his enquiry, his 9 investigation. 10 What would happen thereafter is that the Fiscal would 11 attend and be acquainted with the locus by the senior 12 police officer there. The Fiscal, if that hadn't 13 already been done, would consider whether it was 14 appropriate to call out a pathologist again to see the 15 body in situ. That is, I think, is becoming -- you 16 wouldn't not do that nowadays, but at that time in 1997 17 you didn't have to call the pathologist out there and 18 then but gradually pathologists wanted to be there from 19 the beginning to kind of see the matter through. 20 Q. If we could leave the initial contact perhaps with the 21 Fiscal at the time when a suspicious death has been 22 discovered, in a case that's going to be brought to 23 court where someone's perhaps been arrested for a 24 serious crime like a murder, if we could maybe talk a 25 little bit more about procedure later, but that would be page 104 1 a potential petition case for the Fiscal? 2 A. Yes. 3 Q. Would you be the first point of contact with the police 4 when they had a potential petition case? 5 A. No. Sometimes say something had happened overnight, you 6 would get in a preliminary death report advising of what 7 had happened and what steps had been taken. This is not 8 a case report against anyone; this is just effectively 9 the sudden death sort of scenario that I referred to as 10 part of our function. So they would apprise you of the 11 fact there was a dead body and they would give you such 12 detail as they had about the circumstances of it. 13 Sometimes they get an open and shut case, say a 14 domestic incident where a husband has killed a wife or 15 vice versa even. 16 Almost contemporaneously with that death report you 17 would possibly get a full case report and that would -- 18 in those days it wasn't sent by computer, it was a hard 19 copy brought from the police officer to the Fiscal's 20 Office for presentation to the person who was dealing 21 with the custody cases that day. 22 Q. I think it is my fault for not asking you another more 23 specific question. It may help if we move on to the 24 specifics of what did in fact come to happen in the case 25 where Marion Ross was murdered. page 105 1 The Inquiry has heard that David Asbury came on 2 22nd January 1997 to be arrested for that murder and at 3 paragraph 2 of your statement, if you have that in front 4 of you, about four lines from the bottom of the first 5 page you say that: 6 "A police report was made on about 23rd January 1997." 7 A. Yes. 8 Q. At the stage where someone has been arrested and a 9 police report is coming into the Fiscal's office, would 10 you as the Depute dealing with solemn matters be the 11 natural point of contact? 12 A. No, not necessarily, not necessarily. 13 Q. You may have been and you may not have been? 14 A. I may have been. I think in this case the person doing 15 the custody court that day was my colleague, 16 Mr McTaggart. It looks as if it's either been him or my 17 colleague Will Andrew who received it. It may well be 18 that if one or the other of them had been the Fiscal out 19 at the locus at the time of the discovery it would be a 20 sort of continuity for the case to be seen and 21 considered by them. But I think it was one of my 22 colleagues who received the report that day. 23 Q. The reason I would like to ask you about this 24 particularly is the Inquiry has heard evidence from 25 Mr Stephen Heath, who was at the time a Detective Chief page 106 1 Inspector, that he delivered the custody case to you in 2 person prior to David Asbury's first appearance in court 3 on 23rd January. 4 Is that something that you remember? 5 A. No. I may say when I was being precognosced in 6 anticipation of this hearing I requested if we could 7 have sight of the papers but apparently that wasn't 8 available. That would really have jogged my memory but 9 I have no recollection of my receiving and taking up 10 this case. 11 Q. Dealing with that matter you would have kept a file at 12 Kilmarnock presumably or the office would have kept a 13 file at Kilmarnock? 14 A. That's correct. 15 Q. That is a file that you would have found to be of some 16 assistance to you in achieving a recollection of this 17 incident at the time? 18 A. It would have contained manuscript notations of what 19 took place, it may even have had manuscript notations of 20 received a phone call from so and so on and such and 21 such updating. So that sort of thing might have been 22 helpful but unfortunately it was not available. 23 Q. So is it possible that what we've heard from Mr Heath is 24 right and that's something you don't remember? 25 A. I simply have no recollection of it in those terms. page 107 1 Q. Mr Heath has also told the Inquiry that at the time, 2 most likely I think he said, at the time he delivered 3 the custody case you told him that the case against 4 Mr Asbury was a fairly circumstantial case. 5 A. That's correct. That's my view. I don't know that I 6 actually said that to him at the time but that is my 7 view. It was, at that time it was a circumstantial 8 case. 9 Q. As at the time of Mr Asbury's first appearance in court? 10 A. Yes. 11 Q. So is it possible that you may have said something of 12 that sort to Mr Heath? 13 A. Quite possible. 14 Q. Did you from time to time have discussions of that sort 15 with police officers who were investigating cases you 16 were concerned with? 17 A. Oh, yes. The situation at Kilmarnock was somewhat 18 unique in my experience. The three main places to do 19 with justice, the police office, the Fiscal's office and 20 the Sheriff court, were all within probably about 21 50/60 yards or one another. So police officers could 22 well come across to discuss matters with us in advance 23 of anything. So they probably had a freer and easier 24 access to the Fiscal's office at Kilmarnock than most 25 other jurisdictions. page 108 1 Q. What would be your intention in saying something to an 2 officer like Mr Heath of the sort that the case is a 3 fairly circumstantial one? 4 A. I thought it was a circumstantial case but a substantial 5 case. I thought it was a case which would run and, in 6 fact, my colleague who subsequently prepared the report 7 to advise Crown Counsel of the situation, his is also in 8 similar terms. He thought that it was a full case there 9 where there was a sufficiency of evidence. 10 Q. It is perhaps -- I am not particularly aiming to ask you 11 what your opinion of the case was, Mr McMenemy. I was 12 asking why you would be talking to a police officer 13 about what your opinion of the case was. 14 A. Well, if it was a case I had read I would pass comment 15 on it, judgment on it, say, "Well, that's a pretty 16 circumstantial case but there is real substance to what 17 we've got here so it seems to be a sufficient case". 18 I mean, if ... you don't start petition proceedings 19 lightly. If you're going to put someone on petition, 20 you don't do so lightly. You don't require to initiate 21 proceedings, you don't require corroborating evidence; 22 it only requires credible information. But at the end 23 of the day, you are looking for cause because eight days 24 hence you are going to address a court and ask for full 25 committal and you wouldn't do that unless you were page 109 1 satisfied there was a corroborated case. You wouldn't 2 ask the court to send someone for trial on a whim or on 3 a case which couldn't be corroborated. 4 Q. Mr McMenemy, you will be aware no doubt of the 5 controversies that have come to surround some of the 6 fingerprints -- 7 A. Yes. 8 Q. -- in the case against Mr Asbury. 9 What I am concerned to find out is whether in saying 10 perhaps something along the lines of that there's a 11 circumstantial case whether that was intended or 12 possibly even be read by people, I suppose, as an 13 encouragement to the police to try to strengthen the 14 case. 15 A. Pardon? 16 Q. As an encouragement, as an indication to the police that 17 more evidence was required? 18 A. Well, could be, yes. It could be taken like that. If I 19 said anything like that, it wasn't meant like that but I 20 knew for a fact that police enquiries were continuing. 21 It's not unusual for the passage of time to bring 22 forward new witnesses or indeed something of a forensic 23 nature. That was -- that's all grist to the mill in 24 this whole process, that the precognition process is a 25 gathering of information coming from all sorts of page 110 1 places. You don't just end up with what you start with; 2 it grows and grows as time goes on. So there could be 3 further witnesses who saw something on the news and say, 4 "Oh, aye, I remember that I was in that street round 5 that time and I saw something along that fashion. I'll 6 go and tell the police". So you do get witnesses, 7 et cetera, coming forward and cases do change and the 8 weight of evidence as time goes by. 9 Q. Should we take it from what you are telling the Inquiry 10 today that if you did say to Mr Heath that that case was 11 circumstantial you were not intending that as an 12 indication that more evidence required to be gathered? 13 A. Mr Heath was a very, very experienced police officer. 14 He knew it was a circumstantial case. We didn't have an 15 admission. 16 Q. I don't want to go into the detail of what the evidence 17 was -- 18 A. No, I appreciate that. No, I mean, it was basically 19 down to the facts and circumstances as the police had 20 been able to bring out at that time that put Asbury very 21 much in the frame as being either the perpetrator of the 22 act or in it with someone else who actually committed 23 the act. 24 Q. As I say, I am not concerned to go into the detail of 25 what the evidence before you was at the time, page 111 1 Mr McMenemy. 2 You have given us some indication in your statement 3 about the process as at 1997 when somebody appeared on 4 petition and what would follow procedurally from that. 5 I wonder if you could just give a brief description in 6 the hearing of that procedure for those who may not be 7 familiar with of it. 8 A. When a petition of this nature, a solemn petition, is 9 presented to the court, it is usually done in private. 10 In some places that is in chambers, in other places it 11 is in a closed court; that is the press and the public 12 are excluded and all you have left in the court are the 13 judge, court officials, escort, police officers, the 14 prosecutor, the defence solicitor and indeed the 15 accused. So that would be the scenario and when the 16 petition is called, the person is identified by the 17 clerk of the court and at that point his solicitor would 18 stand up and address the court. 19 The first thing they address is the question of 20 whether there is any plea to the nature of the 21 proceedings. It doesn't mean you are given the 22 opportunity to plead guilty or not guilty. A plea in 23 this case means you take a plea as to the relevancy or 24 competency of what is averred to in the petition. 25 Q. Those are perhaps fairly technical procedural matters page 112 1 that we don't -- 2 A. Well, it is. Relevancy would mean simply that if they 3 were to say that what you have averred to here does not 4 amount to a crime under the law of Scotland then the 5 proceedings are nul and void. 6 Q. So if somebody, to take a silly example, was charged 7 with having sneezed in public and somebody could take an 8 objection on the basis that -- 9 A. That doesn't constitute a crime. Then you have plea to 10 competency. It may well be someone is, say, charged 11 with a statutory crime on which there is a time limit 12 and the time limit may have run out and they can stand 13 up and say, "Objection is taken to the competency of 14 these proceedings. This charge being dated such and 15 such is effectively time barred", and the judge would 16 have to make a decision on that there and then and if 17 that plea was upheld, then again the proceedings fall. 18 Q. But other than matters of that sort being raised, these 19 hearings, unless bail is sought and I think we can leave 20 that out of account as you have told us for a murder 21 charge in 1997, it will be probably a brief and 22 relatively formal hearing at which the prosecutor asks 23 for the individual to be kept in custody? 24 A. The one remaining thing we've not spoken about, the 25 accused at all stages is entitled to admit a declaration page 113 1 as they call it and that is a judicial declaration in 2 front of a judge where he says, "I think this is a lot 3 of nonsense. I did not commit this. I didn't do this". 4 He could have said, "It could not have been me. I was 5 Majorca at the time this happened". That sort of thing 6 he'd may be want to say something about the merits of 7 the charge. It's very, very seldom used. In my 8 30 years as a Fiscal, I think I've known a few cases 9 where someone has voluntary admitted a declaration at 10 these private proceedings. So it's very, very rare but 11 it was open to them. 12 Q. In a murder case at that time the likelihood of the 13 result of that hearing would, by the sort of things you 14 described about relevancy and competency, would be that 15 the person appearing would be kept in custody for a 16 further period? 17 A. That's correct. 18 Q. How long is that? 19 A. Ordinarily it would not exceed eight days -- seven would 20 be the sort of norm just for convenience but it could be 21 extended and it could be extended of course for a 22 considerable period. We're talking theoretically here. 23 I've only come across cases where it's been longer than 24 the eight days -- so basically you're talking, in 25 reality, about eight days. page 114 1 Q. At paragraph 21 of your statement, you tell us a little 2 bit about what would go on during that eight-day period 3 in terms of communications between the local Fiscal's 4 office, the sort of office where you worked, and Crown 5 Office; which is an office in Edinburgh? 6 A. Yes. 7 Q. Can you just perhaps tell us orally, briefly, a little 8 bit about that? 9 A. Once a person has appeared in court and has been 10 remanded in custody, the Book of Regulations, which is 11 the departmental Bible effectively, requires that a 12 report be made to Crown Counsel advising them of the 13 existence of this charge and they are sent a copy of the 14 petition, a copy of the police report and any other 15 matter which the Fiscal thinks properly to be brought to 16 Crown Counsel's attention. 17 Q. Just stopping there who is Crown Counsel for those who 18 don't understand? 19 A. Crown Counsel is the Lord Advocate and his or her 20 colleagues. That's the collective term given to people 21 at Crown Office; in other words, it's the Lord Advocate 22 and the Solicitor-General and the Advocates Depute. 23 It's not unheard of for cases to be considered by the 24 Lord Advocate or Solicitor-General but by and large it 25 would be considered by one of the Advocates Depute. page 115 1 Q. That's High Court prosecutors basically? 2 A. Pardon. 3 Q. Those are High Court prosecutors -- 4 A. They are, yes. 5 Q. What would be the aim of sending them these reports, 6 apart from the fact it was referred by the Regulations? 7 A. Well, as I say, you can take up a case on the basis of 8 credible evidence from one source but you would not ask 9 for full committal unless there was a corroborated case 10 and this is the opportunity for Crown Counsel to 11 consider what they have because a Procurator Fiscal 12 would not move the Sheriff to fully commit someone 13 without the authorisation of Crown Counsel. 14 Q. So what you're looking for from Crown Counsel is the 15 decision about whether the next stage of the procedure 16 is to happen, whether the Procurator Fiscal can ask for 17 the person to be fully committed? 18 A. That's correct. 19 Q. And when you talk about fully committed, can you tell us 20 what you mean by that? 21 A. That is the second appearance where the person is 22 brought before the Sheriff, as I said, in this case 23 after eight days and the motion is basically to commit 24 them for trial. 25 Q. And that would be in a murder case, in practical terms page 116 1 at that time, that the person would stay in prison until 2 their trial started? 3 A. Remanded in custody and that would start what in 4 Scotland is called the 110 day rule. That would mean 5 that it's a protection against a person being remanded 6 ad infinitum. The law of Scotland required that the 7 trial against such a person who has been committed for 8 trial should start within 110 days. 9 Q. In a particular case that we are talking about, I think 10 your office did, in fact, receive an instruction from 11 Crown Counsel for the Fiscal locally to move for 12 Mr Asbury to be fully committed? 13 A. We don't receive it from Crown Counsel under their own 14 signature. It is done by one of the legal staff at 15 Crown Office. In this case, I think it was presently 16 Sheriff William Gallacher but then William Gallacher, 17 who was head of the High Court Unit and basically just 18 instructed that we were to seek full committal. 19 Q. I think we can see that on screen if we look at CO4033. 20 That should come up on your screen. I think what we see 21 there is a letter of 30th January 1997 from Mr Gallacher 22 sent to the Procurator Fiscal at Kilmarnock? 23 A. That's right. 24 Q. Thank you. 25 A. That would be received -- we get back daily from Crown page 117 1 Office with all sorts of instructions and stuff being 2 returned. So that would have come in and it was done 3 through courier or one of the systems. It didn't come 4 normal post and it would be opened up on 31st which was 5 the day that Mr Asbury was due for full committal. So 6 that was our instruction to go ahead and to seek full 7 committal. 8 Q. We see that the details of that letter is 9 30th January 1997? 10 A. 30th January, yes. 11 Q. The Inquiry has learned that some further information 12 about a print that came to be known as QI2 had come to 13 light on the morning, I think in the morning or early 14 afternoon, of 31st January 1997. And I think you 15 mentioned this at paragraph 24 of your statement. 16 A. This is the thing where it was -- I saw something, a 17 handwritten suggestion that a Detective Inspector 18 McDonald, Karin McDonald at Kilmarnock, had been told 19 about the identity of Marion Ross' print round about 20 12.30 pm on 31st January. I saw something to that 21 effect. 22 Q. Is it possible that you yourself were telephoned that 23 day, perhaps by Mr Heath, about the matter? 24 A. No, I've got no recollection of that and, as I say, in 25 my statement it wouldn't have mattered anyway. It was page 118 1 something that we were sitting and waiting the outcome 2 of. We already knew where we were going with this case 3 without Marion Ross' fingerprint. 4 Q. But is it possible you may have received that call and 5 don't remember it? 6 A. I don't recall receiving anything of that nature but, 7 again, if you've got the copy of the PF, the report to 8 the Procurator Fiscal, if a call such as that was made, 9 it would have been likely that someone would have noted 10 it down "received a call from SCRO" or "from DI 11 McDonald". 12 Q. If you just received a call perhaps it would be in your 13 own file. 14 A. Well, the case report is our file. What happens is the 15 police report comes in and we put backing sheets on it 16 for court minutes and general notations. So the 17 totality of that we call -- just call that a police 18 report but it contains sheets added on by the Procurator 19 Fiscal's office when we wrote things like what 20 transpired in court, fully committed, bail refused, 21 remanded in custody, things of that nature would have 22 been noted there in manuscript on the papers. 23 Q. But in any event you tell us that the information that 24 came to light that day did not matter because you had 25 your instruction from Crown Counsel on 30th January? page 119 1 A. That's correct. 2 Q. At paragraph 29 of your statement, you record that you 3 were asked whether you had any discussions with Frank 4 Crowe, now Sheriff Crowe, about the case and you explain 5 that you did indeed speak to Sheriff Crowe when he was 6 with Danish fingerprint experts at your office? 7 A. They came down. I recall one name, Rasmusson, and his 8 colleague from memory, they were senior officers with 9 the Danish Criminal Police based in Copenhagen and they 10 were fingerprint experts and they were the ones that had 11 been asked to come down and look at these things as 12 honest brokers, as it were, to give an opinion one way 13 or another. 14 A number of the productions which featured in this 15 case were, at that stage, held in the vaults of the 16 Royal Bank of Scotland just up the road from the office 17 and I was asked to have these ready for the Danes when 18 they came down. So I think Mr Crowe brought them down 19 about mid-morning and we gave them facilities within the 20 office to look at what they wanted to see. 21 Q. Did you happen to learn when you spoke to them at that 22 time what their views were about the marks they had been 23 looking at? 24 A. I'm sorry. 25 Q. Did you learn when you met with the Danish experts and page 120 1 Sheriff Crowe what view the Danish experts had reached 2 about the material they looked at? 3 A. I was not present when they were doing what they did. I 4 had other things to do. I recall being taking them out 5 to lunch at a hotel in the Kilmarnock area. It was more 6 a social occasion. We didn't go into the background. I 7 think Frank mentioned it to them and he and I had been 8 colleagues for a number of years in Glasgow so I would 9 have called it a social lunch. We didn't get into the 10 nitty-gritty of what they were there for at that time. 11 In fact, as I recall they hadn't completed what they 12 were doing. That was completed during the course of the 13 afternoon and in the aftermath I think I spoke to Frank 14 and asked him what the outcome was and he didn't divulge 15 that but he did say, I think, that when they had been 16 examining it, I think he may have been present and he 17 said there were a few head shakes, people shaking their 18 heads. 19 So that was the way it was left with me, that the head 20 shaking seemed to show that they were not convinced of 21 what they were seeing. 22 Q. So were you taking, whether or not it was being given, 23 taking a hint that at that point -- 24 A. I think it was a hint of what the outcome might be, yes. 25 Q. Being specific, taking a hint that the Danish experts page 121 1 perhaps didn't agree about the identification -- 2 A. They didn't agree with the SCRO identification. That's 3 what I took that to be, yes. 4 Q. That was in relation to the print that had been 5 previously identified as Marion Ross' print? 6 A. That's my understanding. 7 Q. That is what you took from the mention of head shaking? 8 A. That's the job they'd come down to undertake, to look at 9 these things and to find out whether the SCRO 10 identifications were to be relied on and I took that to 11 be that they were not, they were not on board with the 12 SCRO identification. 13 Q. Sheriff Crowe has told the Inquiry in his statement, 14 Mr McMenemy, that what he remembered is your 15 recollection to him being that at the very last minute 16 the police had been able to produce the Marion Ross 17 fingerprint on the biscuit tin found in David Asbury's 18 house and that you had been slightly suspicious about it 19 at the time. 20 Can you recall saying anything of that sort to Sheriff 21 Crowe? 22 A. He was saying that I was suspicious? 23 Q. Saying that you had expressed to him at some point in 24 discussion that you had been suspicious. 25 A. No. No. The Marion Ross thing on the tin, I'm almost page 122 1 sure was something that was spoken to me by Elizabeth 2 Berry, the precognition officer, when she was 3 precognoscing, that she got the thing in from the police 4 or directly from SCRO -- I'm not sure which -- and she 5 said to me, "and moreover we've got her fingerprint on a 6 tin found in this house", and I thought great. 7 Q. Presumably because you felt that that was something that 8 assisted the Crown case? 9 A. Oh, yes. As another level of evidence, yes, that would 10 be quite compelling. 11 In fact, given the original state of the inquiry, we 12 were not -- you could not be convinced of what the 13 motive may have been for Asbury being there, even in the 14 house. But once it came clear that there was a 15 financial element, then you quite clearly had a 16 motive -- not that the Crown requires to prove motive in 17 a criminal case, but for presentation to the jury it 18 makes an awful lot of sense when you can show that there 19 was that financial gain arising out of the crime. 20 Q. Can I take it then that you dispute that you have ever 21 said that you were slightly suspicious about the finding 22 of QI2? 23 A. I think my reaction to what Liz Berry told me was, 24 "Good, that's helpful". I don't recall being suspicious 25 of it certainly, not in the least. page 123 1 Q. There is one further matter I would like to ask you 2 about, Mr McMenemy, and I would like to take you to 3 paragraph 30 of your statement, please. That is at 4 pages 10 to 11 of your statement. I would just really 5 like your best recollection of when you found out about 6 the allegation that DC Cardwell's print had been found 7 at the scene. 8 A. I've got no memory of precisely when I heard that, 9 whether before full committal or after it. I've got no 10 memory of that whatsoever. 11 Q. I asked you that particularly because if I take you back 12 to paragraph 4 of your statement, page 2, in the last 13 three lines, you mentioned the dates of 27th and 28th 14 January and you say that you may have had a discussion 15 about the case with John McGlennan around that time 16 which would be before full committal -- 17 A. Yes. 18 Q. -- because you recalled (inaudible) were aware of an 19 allegation involving a police officer and that was why I 20 wanted to be as clear as possible about your reaction of 21 when your recollection of hearing the allegation about 22 Shirley Cardwell was but is it the position you simply 23 don't know whether it was before or after? 24 A. I really don't know. You'll appreciate the fact that a 25 fingerprint of a police officer found at the locus is page 124 1 not something novel. It happens from time to time. In 2 fact, forensic scientists tell me that despite the best 3 will in the world their fingerprints turn up from time 4 to time and that's why they are all on the SCRO records 5 for elimination purposes. 6 What was, I think, concerning in this case was the 7 fact that a police officer who had been told, according 8 to what the police were telling us, had been told to 9 stay away and not to go into the house, her fingerprint 10 had been found and it couldn't be accounted for other 11 than the fact that she had been given access. 12 That would have implied that those keeping the 13 security of the premises had given her unauthorised 14 access and hadn't updated their logs. From the police 15 point of view, while it didn't impinge on the murder 16 case against Asbury, it was throwing up a lot of 17 problems for them. I think there were maybe seven or 18 eight police officers at various times who had been 19 keeping guard on the door and logging in and logging out 20 so suspicion immediately fell on them as being complicit 21 with Shirley Cardwell getting in and not mentioning it. 22 Q. If I can stop you there, Mr McMenemy, the earliest 23 record that the Inquiry has been able to come across of 24 Y7 being identified as Shirley McKie's is 11th February. 25 A. So it's after the full committal. page 125 1 Q. Well, that is the information that we have and I am 2 asking you for your reaction to that if that assists you 3 in any way? 4 A. As I say, I can't tell you whether it was before or 5 after but it ... 6 Q. If you have no recollection, please say so? 7 A. No, I literally have no recollection of that. But I 8 think I'm guessing it was after full committal because I 9 wasn't much involved prior to full committal, if you 10 know what I mean. Basically the report went away and we 11 were waiting for it coming back. It was only after full 12 committal the papers would come off, would come to me 13 either for myself of Mr McGlennan to allocate it. So 14 when I say I was told there was a problem, I'm surmising 15 it was after full committal but I couldn't say with any 16 great certainty that that is the case. 17 MISS CARMICHAEL: Thank you very much. I have no more 18 questions for you at the moment. 19 THE CHAIRMAN: If I could ask you first, Mr Holmes, if you 20 have any application? 21 MR HOLMES: I have none, sir, thank you. 22 MR SMITH: Sir, wonder if I could ask questions. It 23 relates, first of all, to this witness's understanding 24 at the material time of the fallibility or infallibility 25 of fingerprints and his views of the investigation and page 126 1 talking particularly towards Shirley Cardwell as she 2 was, rather than David Asbury. 3 The question of the integrity of the locus and 4 whether he was made aware of any difficulty in that 5 regard and the question of the methods of questioning 6 Shirley McKie subsequent to this and his attitude to her 7 position. 8 There is a document which has been lodged and on the 9 Internet and I feel some questions should be asked about 10 it. 11 THE CHAIRMAN: If he is in a position to answer. 12 Cross-examined by MR SMITH 13 Q. Mr McMenemy, first of all, could I ask you at the time, 14 in 1997, you were being provided with information and I 15 am interested in Shirley Cardwell as she then was known 16 about her fingerprint allegedly being found in the 17 locus. 18 Now, at that time at least, was it your view that if 19 that was said to be her fingerprint there was no doubt 20 at all it was her fingerprint? 21 A. That's correct. In fact, I recall in my discussions 22 with Mr Heath when he was explaining it all to me, he 23 said that it had been discovered that she had said, "No, 24 it can't possibly be me. I was never there", and 25 basically she asked for them to have it rechecked and page 127 1 apparently it had been rechecked and had come back with 2 the same answer. 3 Q. Yes. 4 A. And -- well, quite honestly by that time I had been 5 dealing with fingerprint evidence in court for 20-odd 6 years and the state of our knowledge at that time and 7 the practice in courts was once you got a identification 8 of that nature, then that was that. 9 Q. Is it fair to say that it was on a rare occasion that a 10 fingerprint expert would give evidence in a prosecution 11 in Scotland? 12 A. That's right. Normally, especially in summary 13 prosecutions, all that we would do is serve a copy of 14 the fingerprint report on the accused person and it's up 15 to them to challenge it or not and if they didn't 16 challenge it, it would be received into evidence on its 17 merits, as it were. 18 Q. Can I just be clear, apart from the circumstances in 19 this case and the Asbury case and, of course, the McKie 20 case had you ever seen a fingerprint expert having to 21 give evidence to justify their report? 22 A. Yes, I have seen witnesses giving evidence in court. 23 They didn't spend an awful lot of time in the box. They 24 were basically I suppose you could call it -- basically 25 you probably had a sort of two-page report and then you page 128 1 had a book of photographs containing the lift and then 2 the things showing the work that they did, you would 3 also have the fingerprint form. So you would have three 4 things: the fingerprint form, you had the lifts from the 5 locus and then you would have the comparison of the 6 points of similarity, both from the fingerprint form and 7 from the locus, all put out and numbered like that and 8 they would be used simply to explain to the members of 9 the jury how they went about what they did and why they 10 reached the opinion that they did. 11 Q. Did you ever see cross-examination taking place of an 12 expert, for example, saying, "Well, can you just tell us 13 where point 11 is"? 14 A. Yes, I do recall once I think someone got up and said, 15 "You said that 8 there and that 8 there are the same", 16 and the expert said yes and he said, "Well, it doesn't 17 look like that to me", and the fingerprint expert said, 18 "Well that may be correct, sir, but maybe it would have 19 to do with the pressure that's been put on the locus 20 point and form", et cetera, but I spent a long number of 21 years looking at this and, I suppose, the answer was, 22 "Believe me, I'm an expert, I have looked at this and I 23 have formed an opinion that that point there matches 24 that point there". 25 Q. Thank you. And you yourself in looking at such reports page 129 1 in the course of your work for many years as a 2 Procurator Fiscal, did you ever sit down and, as it 3 were, as a non-expert not agree with the 16 points? 4 A. Yes, I've looked and seen things that to my mind were 5 disparate but I'm not an expert and after all he is an 6 expert. It's not a scientific thing. It's opinion 7 evidence. It's not been proven mathematically. He 8 says, "I've spent a good number of years doing this. I 9 have given evidence in court on these matters on a 10 number of occasions and I've got expertise in this field 11 and I look at that point of reference there and I look 12 at that point of reference there", and they will say 13 that they've seen it on the actual photographs 14 themselves, they are not exact but, "believe me that 15 little thing there and that little thing there is a 16 point of comparison". 17 Q. Please understand I am not criticising you for not being 18 able to see the question -- I don't think even we can be 19 in that position -- but it is something that you have 20 had to trust in that way, as one regularly has to do so? 21 A. Oh, yes. 22 Q. As one regularly has to do so with expert opinion? 23 A. Expert witnesses are there, they live or die by their 24 expertise and their believability. 25 Q. Is it fair to say that in a number of trials, even page 130 1 though they knew it was going to be unchallenged, 2 fingerprint evidence was sometimes called for 3 presentational purposes. The expert evidence from a 4 fingerprint expert was led anyway? 5 A. Yes. 6 Q. You will understand Shirley Cardwell's position was 7 consistent, which was, "I was not in the locus". I 8 suppose you understand the logic of that was, "If I 9 wasn't in the locus, it can't be my fingerprint". You 10 understand that? 11 A. Very much so. 12 Q. We understand that Shirley McKie was interviewed on 13 about 13 occasions by various people for disciplinary 14 purposes and the Asbury trial in connection to her own 15 case and so on and so forth and she was repeatedly asked 16 to explain how it is that her fingerprint could be in 17 the locus. 18 Do you have any comment about whether that number of 19 interviews, up to 13 where she has repeated her denial, 20 is something on any inquiry would be unusual when it is 21 such a simple position which is, "I wasn't there"? 22 A. I don't know. The police -- I always found that when 23 the police were of the view that they had, how can I put 24 it, a rogue among them or somebody going off the rails, 25 they were very tenacious in trying to get to the bottom page 131 1 of it. 2 Now the mere fact that she was precognosced doesn't 3 add to that. Witnesses are precognosced all the time 4 but my experience of the police investigating one of 5 their own is they don't wear kid gloves. They are very 6 thorough, very tenacious. I certainly wouldn't like to 7 have been a police officer under enquiry by some police 8 officers I have known. It is a rough business, 9 especially if they think that one of their own is at it. 10 Q. Can I ask you to look at a document, please, if you give 11 me one moment ... CO3163, please. I think if you go to 12 the fourth page of it, it should be a handwritten 13 document headed, "The situation of DC Shirley Cardwell". 14 MISS CARMICHAEL: Sir, there appears to be a technical 15 difficulty in that 3163 is not in the database. I 16 wonder if the reference is the one that Mr Smith 17 intended. 18 MR SMITH: I am not sure what the reason for the technical 19 difficulty is but perhaps if I can just approach it in a 20 slightly different way. 21 THE CHAIRMAN: Yes. 22 MR SMITH: Do you recall Mr McMenemy getting a handwritten 23 statement at some stage relating to not just Mr Asbury 24 but a second section relating to DC Shirley Cardwell. 25 A. Is this my handwritten note for Crown Counsel which was page 132 1 incorporated into the precognition? 2 Q. I think it was indeed. I know you don't have it before 3 you. 4 A. I do actually have it. 5 Q. With the Chairman's permission I am sure you can look at 6 your own copy. I will read out what is in it. 7 A. Is this the thing that I see before me as CO3163? 8 Q. That is certainly the one you are working from ...? 9 A. Does it say "Note by Senior Depute". 10 Q. Yes, that is, I understand, correct. 11 A. I have a copy of that here. It begins: 12 "I have read the precognition and have considered the 13 draft charge and conclusion arrived at by the 14 precognoscer." 15 Q. Yes, that's correct. 16 THE CHAIRMAN: Is there a number on the top of it. 17 A. Yes, my Lord. Yes, sir what I have is CO3163 and that 18 is also incorporated into CO3850 as pages 43, 44, 45 and 19 46 of the actual precognition. 20 THE CHAIRMAN: We will just see if we can locate it. 21 MISS CARMICHAEL: Sir, I understand if it is of assistance 22 to Mr Smith that there is a camera that we can use to 23 project a card copy. It is not clear to me why this 24 document isn't available on Trial Director but there is 25 another way we can make it visible to everybody. page 133 1 THE CHAIRMAN: Yes. 2 It will be easier if we can all see it. 3 MR SMITH: What I am interested in is if you can turn to 4 page 4 within that, please. Can you turn to page 4, 5 please. It is headed, "The situation of DC Shirley 6 Cardwell". Thank you. 7 First of all, can I ask you, Mr McMenemy, is that 8 your handwriting? 9 A. It is, yes. 10 Q. And I think you have explained just for clarity's sake 11 you attached this, did you, to the request for 12 instructions from Crown Counsel; is that right? 13 A. No, that's a draft for the typist. I was more inclined 14 to, when I was thinking about things, do the manuscript 15 thing so I could change things rather than dictating. 16 But what you see there forms part of the note by Senior 17 Depute when the precognition for the Asbury was reported 18 to Crown Counsel. 19 Q. I see. Let's just stick with the handwritten version 20 now if I may and what I would like to do is look, first 21 of all, at the second paragraph on that page just about 22 six lines down. I think I will try and read this. Your 23 is writing pretty legible but if I make mistakes please 24 tell me: 25 "Shirley Cardwell's position has changed since her page 134 1 fingerprint on the doorframe was first detected and 2 brought to her attention. At that time it was simply a 3 denial that it could possibly be her print. Now she has 4 gone on to espouse an impossible conspiracy theory", and 5 then there is reference item 10.2. 6 A. Yes. 7 Q. What, can you help me, was item 10.2? 8 A. Was that not ... yes, that would seem to relate to a 9 copy of Detective Superintendent Malcolm's report in 10 response to the Procurator Fiscal. I don't know where 11 that is. I'll see if I can find it. (Pause) 12 Q. I am not sure how easy this is. If we could try another 13 document, we might be able to see this. Can we look at 14 CO0998, please. 15 I think we can see this document is an internal report 16 from Detective Superintendent Mr J Malcolm; do you see 17 that? 18 A. Yes. 19 Q. Is that the document you were thinking of? 20 A. It may be, if I could see the full document. 21 Q. What I think we can do is maybe skip forward to 22 section 10 which is probably page 5 of the PDF file. 23 Now we can see section 10 is "Accounts by DC Cardwell"; 24 do you see that? 25 A. Yes. page 135 1 Q. It explains that: 2 "... on first being informed of the discovery of 3 impression Y7 denied that the fingerprint was hers. 4 This can be rebutted by scientific evidence." 5 There is reference to an allegation it was planted by 6 mistake and it is rebutted by chronology, et cetera, 7 et cetera. I take it that you can see the views of 8 Detective Superintendent Malcolm at that stage were very 9 clearly that, "I suppose this won't do. It's quite 10 simply that will not wash? 11 A. No, that's correct. 12 Q. Thank you. I have finished with that document. 13 Assuming, Mr McMenemy, that your position certainly at 14 that time was very much in line almost with Detective 15 Superintendent Malcolm's position -- 16 A. No, I think it would be fair to say that with the 17 exception of DC Cardwell, that seemed to be everyone's 18 view. In fact, at precognition when I was probing her 19 on this, I basically I suppose you could say I was 20 trying to burst her and get the truth out because from 21 the point of view that I was looking at she was either 22 facing disciplinary proceedings for going into the locus 23 when she was told not to and leaving this fingerprint 24 or, alternatively, what was ahead of her was a trip to 25 the High Court to give evidence, repeat it under oath page 136 1 and possibly face perjury. I could see that she was in 2 a very difficult position and I was basically -- I 3 wasn't being officious or anything. I was probing and 4 probing and probing to see if there was anything to this 5 and at that stage she became quite emotional, 6 understandably -- it's not a position to be in -- and 7 said to me words along the lines, "I wasn't brought up 8 to tell lies". She says something like, "You're just 9 like the rest of them. You don't believe me". 10 That was quite true. My position at the time was I 11 didn't believe her but I didn't acknowledge that. I 12 turned it on her and I said, "Look, you are a detective 13 officer with a number of years' experience of this. 14 You've had fingerprint evidence in the past. You tell 15 me what you thought when you had a case and all of 16 sudden you get a call from SCRO to say there's 17 fingerprint evidence". And she said, "Well, that was 18 that. That was the clinicher sort of thing". And I 19 said, "Well, you will appreciate that that's the way 20 your colleagues are all seeing this". I mean, at that 21 stage it was "me against the world" and that was her 22 position. 23 Officers, in fact, who I believe had been supportive 24 of her to begin with had basically withdrawn from her 25 and she was feeling very, very alone and isolated. I page 137 1 could understand that. 2 Q. It must have been the talk of not just the police but 3 the Procurator Fiscal's office and all kinds of people, 4 was it not? 5 A. Well, I don't know whether it was the talk of the 6 Fiscal's office but people knew that she was coming in 7 to be precognosced that day and there was a slight 8 frisson in the air, though she be -- 9 Q. I don't wish you to take this the wrong way but was it 10 really the intention, as you put it, to burst her? 11 A. If at all possible, yes. 12 You will appreciate this did not so much impinge on 13 the murder case because that was separate but the mere 14 fact that her fingerprint had been found, that the 15 integrity of the locus was called into question, there 16 was an opportunity for defence counsel on rhetoric to 17 say, "Well, what do you think about this? The police 18 say you have done this, you've done that but look at 19 this. These are all things, take that into account". 20 That was a factor to be considered. 21 Now, in all honesty, at that time given what the 22 police had done to meet her challenges to get the thing 23 seen and sorted out a second time, she had been left in 24 a position that she was having to come up with theories 25 to try and account for it. That was her position. page 138 1 Q. Yes -- 2 A. She was -- well, to my extent she was fantasising almost 3 "what if" and "maybe it was that, maybe it was this, 4 maybe it was the other". Her point of certainty was, 5 "It wasn't me". 6 Q. Yes, but you'll understand, I think you are somewhat 7 critical of the suggestion being made by her there was 8 some conspiracy -- 9 A. Well, she said to me, "You don't believe me. You're 10 just like the rest of them". 11 Q. Yes, but -- 12 A. And that was true. That was a correct observation. I 13 didn't believe her. But I didn't acknowledge I didn't 14 believe her. I was playing the honest broker trying to 15 tease it out of her when she said these things and 16 that's when I turned to her and said, "You're the 17 detective officer. You've dealt with this umpteen times 18 in your career, you know the value of fingerprint 19 evidence if it's been checked, double checked", and she 20 had to answer, "Yes, I acknowledge that when I was a 21 detective officer that was basically conclusive 22 evidence", and I said, "Well, that's where your 23 colleagues are all coming from". 24 Q. Yes, but the only answer that she could have given you 25 that would have satisfied you was, "Okay, I was in the page 139 1 house", isn't it? 2 A. "I was in the house", yes. That's correct. 3 Q. And at that stage of course she believed it had been 4 corrected identified as her fingerprint? 5 A. That's right. 6 Q. I take it you would agree against that background that 7 the only explanation that you were not in the place, we 8 are told there are fingerprints there; if it is your 9 fingerprint, the only way that can happen is if you left 10 it? 11 A. It was not as if it was on a cigarette packet that could 12 been taken and left there. It was in a fixed point 13 which presupposes -- it was on, I think, a doorjamb that 14 had been painted and been there for many years. It 15 wasn't something new. 16 Q. The last thing I wanted to ask you about was the 17 question of the integrity of the locus. I think you 18 mentioned it was something that effectively had been 19 challenged? 20 A. That was the implication of it. 21 Q. We have heard some evidence that there were or you had 22 some information that it may well have been that there 23 were up to six police officers who were within that 24 house. Indeed or at least some of them may for some of 25 the time the body had not yet been removed and they were page 140 1 actually in the living room while they were on, as it 2 were, guard duty. 3 Is that something that you were aware of? 4 A. No. I made a locus inspection some time after this. I 5 think I went there with possibly it was Mr Heath but it 6 was either him or a detective inspector or someone like 7 that just to see the house for myself. I was invited 8 out and on the occasion that I got there, there was an 9 officer in the porch. There's a small porch in front of 10 the main door and there was an officer there. 11 That would have kept them wind and watertight had they 12 been on duty standing under the door. So you could 13 imagine for self-preservation somebody standing out on a 14 wet January/February night in the middle of Kilmarnock 15 where there was no shelter but there was actually the 16 porch they could have sheltered in. I would have 17 thought they wouldn't have been required to be in the 18 house. 19 Q. The last question is this: you explained to us how 20 fingerprint evidence was presented with the charts and 21 16 points and so on. Is it any different now? 22 A. Well, I believe it is. That's only this morning when I 23 met a former colleague who is still in the Fiscal, 24 Julian Climie, and I've been out the loop for the last 25 four years and I understand that they do a non-numeric page 141 1 thing. What that means I haven't a clue and I'm not 2 interested. But I do understand that there have been 3 changes to the way it's presented now. 4 MR SMITH: Thank you. 5 THE CHAIRMAN: Miss Grahame? 6 MISS GRAHAME: There are two matters I would like to clarify 7 with the witness if I may. One relates to an answer 8 regarding papers requested and the other relates to who 9 may have received the police report. 10 THE CHAIRMAN: Yes, those are all matters in your domain so 11 if you want to ask them please do. 12 Cross-examined by MISS GRAHAME 13 Q. Mr McMenemy, I would like to ask you to clarify one of 14 the answers you gave earlier this afternoon. It may 15 assist if I read out the answer from the LiveNote and 16 then ask you some questions. 17 A. Yes. 18 Q. For those of us that have the LiveNote transcript, it's 19 at page 106, lines 1 to 5. Your answer is noted as 20 saying, although this will be revised: 21 "I may say when I was being precognosced in 22 anticipation of this hearing I requested if we could 23 have sight of the papers but apparently that wasn't 24 available. That would really have jogged my memory but 25 I have no recognition of my receiving and taking up this page 142 1 case." 2 It may be that you said, "I have no recollection"? 3 A. Yes. 4 Q. May I ask what papers did you request? 5 A. Well, I thought that the Inquiry had full access to 6 everything relating to this case from the point the 7 police inquiry started and what I was looking for, as I 8 explained earlier, was the original -- the police case 9 report, the criminal case report, to my office together 10 with the sheets of paper that we add to it for court 11 minutes, noting down things, et cetera, which gives a 12 better picture of what was happening throughout the 13 period. 14 It was normal if things were being fluid and things 15 were being reported back, for instance, among other 16 things we would have instructed psychiatric reports, two 17 psychiatric reports and on the papers if I got a call 18 back from the psychiatrists who were examining 19 Mr Asbury, I would note down that Dr White called, has 20 seen accused, sane and fit to plead, no psychiatric 21 recommendation and that would have been noted down for 22 future reference. 23 Then the second one Dr Black said a similar thing so 24 that basically I'm noting down that there do not appear 25 to be any psychiatric implications. This is the sort of page 143 1 thing that you note on our backing papers, as they were 2 called, while we're working on the case. 3 Q. To whom did you make this request? 4 A. It was to the precognoscer, Mr David Hay,advocate on 5 behalf of the Inquiry. I actually went through to the 6 Inquiry offices in Edinburgh to be precognosced rather 7 than being precognosced through West and I was quite 8 surprised when I was told that these were not available 9 because I thought that within the fingerprint office 10 itself or the Inquiry offices that these things would 11 have been readily available but apparently they weren't. 12 There was certain specific things which I have here 13 today were brought out. I mean, the precognition wasn't 14 there. All I've got is pages 27 to 46 of the 15 precognition. I thought the precognition might have 16 been available as well in which case I would have been 17 able to answer further questions. 18 But I understood it at that time they were simply 19 focusing on specific aspects with which the fingerprint 20 Inquiry was concerned as opposed to the generality of 21 what we did at the time we were working on the case. 22 THE CHAIRMAN: I am not sure, are you suggesting that these 23 were made available to the Inquiry? 24 MISS GRAHAME: Yes. I will be suggesting that papers were 25 made available to the Inquiry but perhaps not page 144 1 subsequently passed on to the witness. 2 THE CHAIRMAN: Are we in a position to say? Just if we 3 could deal with it now. 4 MISS CARMICHAEL: What I can say from my own recollection, 5 sir, is that indeed full volumes of precognitions, I 6 think, in the Asbury case are available. Bulky volumes 7 of precognition were not always made available to 8 individual witnesses. 9 However -- I think I will be corrected if I am wrong 10 by the lady sitting next to me -- there was a request 11 for papers, for working papers kept at Kilmarnock, and 12 that was ... I am personally told those papers were 13 requested and I myself have no knowledge of those sort 14 of working papers being received. 15 THE CHAIRMAN: I think we had better check because it 16 obviously would have assisted the witness to have these. 17 I would like to be satisfied that (a) they were made 18 available to the Inquiry and (b) that somehow they have 19 come adrift. 20 MR MOYNIHAN: Perhaps if I can add that there's a 21 distinction so far as paperwork is concerned between the 22 two cases, Asbury and McKie. So far as Asbury is 23 concerned, we have two items. First of all, we have 24 what I would recognise as the Crown Office file, which 25 is a manila file with loose papers from the High Court page 145 1 Unit and the Crown Office. We have separately the full 2 precognition and I was listening to what was being said 3 by Mr McMenemy, we do have, for example, the psychiatric 4 reports, even though the Crown Office thought that we 5 shouldn't have them, we do have them. 6 So I apologise to all concerned. What Mr McMenemy 7 was asking for when he was in our office, obviously, so 8 they could obviously have been provided to him. It must 9 simply have been a misunderstanding by Mr Hay. 10 There is however quite a separate question about the 11 completeness of the papers that we have in relation to 12 the McKie case but Mr McMenemy is not being asked about 13 that. What he is being asked about just now is 14 obviously a fault on our part in not making available to 15 him the full papers in relation to the Asbury case that 16 we did actually have available to us? 17 A. It's not so much the -- 18 MR MOYNIHAN: Sorry, my learned friend, Miss Carmichael, has 19 said it's correct. I am not aware but stand to be 20 corrected, I am not aware of having the Kilmarnock 21 Fiscal's papers in relation to the Asbury case. So 22 anything Mr McMenemy might have been writing to himself 23 in relation to the psychiatrists, Dr White, Dr Black or 24 Dr Gray, the three colours from Carstairs, I'm not aware 25 of us ever having had but I stand to be corrected. page 146 1 THE CHAIRMAN: Maybe this is a matter for discussion between 2 counsel just to check what exactly we should have. 3 MISS GRAHAME: I am very much obliged for the comment 4 regarding the Asbury papers. I can of course say that 5 in October 1998 the Inquiry were sent miscellaneous 6 correspondence, notes and papers from Kilmarnock along 7 with a police report regarding the death of Marion Ross 8 from Kilmarnock in addition to the precognition and 9 psychiatric reports matters. But as far as I'm 10 concerned, Mr Chairman, the matter has been adequately 11 dealt with regarding the papers. 12 THE CHAIRMAN: Certainly if there is anything that would 13 have assisted you, Mr McMenemy, that we have you can of 14 course have access if you have time and if you want to 15 come back and add/subtract to what you have said in the 16 light of it, then I have no objection. 17 A. Sorry, as you will appreciate I have been airy fairy to 18 a certain extent. I can appreciate this trying to 19 recollect things 12 years on without the benefit -- now 20 I mean, there were various things about reports being 21 seen. I didn't know whether I'd seen them or perhaps 22 the Procurator Fiscal, Mr McGlennan, had seen them 23 but had these been available we might have obtained a 24 manuscript thing from myself saying "noted", and a date 25 on it which I can say it must have been within my page 147 1 knowledge at that time. 2 THE CHAIRMAN: If you want to look at the papers and if you 3 think there is anything, but given 12 years and 2 years 4 of retirement from your office, I think I would not 5 describe it as airy fairy, your description of the 6 events. 7 MISS GRAHAME: There was one more matter. My learned 8 junior's noted at page 145 of the transcript, line 20 I 9 said October 1998 and I should have said October 2008, 10 so I am sorry for that error. 11 The only other matter I would like to ask this 12 witness relates to your statement, Mr McMenemy. On 13 page 1 in paragraph 2 if you could get that. 14 A. I have that. 15 Q. Would you look for me, please, from line 7 to line 11, 16 line 7, the final word leading on to line 8 which 17 begins: 18 "I am shown document C04022 ..." 19 A. Yes, I've got that if you just bear with me. 20 Q. I will just read that out from the statement and I see 21 that the document is on the screen. It says: 22 "I am shown a document C04022 petition against Asbury. 23 This is the original petition of the case against David 24 Asbury. I see from this that the case looks to have 25 been reported to Will Andrew, Procurator Fiscal Depute page 148 1 as he has signed the petition." 2 Would you explain, please, what you meant when you 3 said it looks as if the case had been reported to Will 4 Andrew? 5 A. Well, when a criminal case report comes into a Fiscal's 6 office at that time, it was hard copy. They don't come 7 in in that fashion any more. They come in 8 electronically but in those days they came in hard copy 9 and there would be a number of people between the hours 10 of, say, 8.45 and 10.00 who would consider all these 11 different custody cases and they would either mark them 12 for proceedings or mark them for no proceedings, they 13 would draft the charges, pass them to the typists who 14 thereafter type either a summary complaint or, in this 15 case, the solemn petition and thereafter they would 16 normally be returned to the person who had marked them. 17 Now, that didn't happen all the time because people 18 would be leaving the office before 10.00 for various 19 court commitments either in Sheriff Court, the District 20 Court or whatever. So sometimes when they come back it 21 would just have to be signed by a Depute, anyone. But I 22 see that this would be signed by Will Andrew. So that 23 made me think that in all likelihood it was Will who 24 drafted the charge. But again we come back to this if 25 we had the case report with our minutes on it, I would page 149 1 be able to tell you chapter and verse about who did what 2 at what stage. 3 MISS GRAHAME: Thank you. I have no further questions. 4 THE CHAIRMAN: Mr Macpherson, do you have any questions? 5 MR MACPHERSON: I have no questions for Mr McMenemy. 6 THE CHAIRMAN: Have you anything further you want to ask 7 this witness? 8 MISS CARMICHAEL: No thank you, sir. 9 THE CHAIRMAN: Could you, just because I am not overly 10 familiar with the Scottish system, could I just ask you 11 about the role of the Fiscal. Many cases are 12 circumstantial and circumstantial evidence, as we are 13 often reminded, is just as good as any other evidence in 14 many cases. 15 Would it be any part of the role of the Procurator 16 Fiscal to say to the police, "Well, your case is a bit 17 weak in this respect", or, "you would need to have 18 stronger evidence of some particular issue"? 19 A. That would not be totally unusual at all, sir. You are 20 receiving the case. You are almost sitting as judge of 21 first instance. This is a case that you are going to 22 have to take into court and present and argue for a 23 conviction. So you are obviously looking for it to be 24 as strong as possible. 25 Now, the situation in Scotland technically is that page 150 1 when a crime has been committed it is the Procurator 2 Fiscal who investigates and prosecutes. The police's 3 job is to detect, suppress and detect crime but once the 4 actual crime has been committed, it becomes the Fiscal's 5 job. Now, the Procurator Fiscal doesn't go out and 6 about doing that, the police basically do these things 7 under his direction. Sometimes the Procurator Fiscal 8 could, if he so wished, direct a particular line of 9 enquiry but by and large the police are very, very, very 10 professional and they are very, very good investigators 11 and they are left to get on with it. 12 It may well be they will come back in the office from 13 time to time to say, "We have investigated that line and 14 it's not shown anything but we've now, from that we've 15 now got this other line and we're proposing to go down 16 that keeping the Procurator Fiscal apprised of what is 17 going on". But at the end of the day it is the 18 Procurator Fiscal's investigation. It's not a case of 19 simply taking what the police give you and if they 20 choose not to give you X amount more then you just do, 21 it's the Procurator Fiscal who is the principal 22 investigator and the police will carry out his lawful 23 instructions and by and large do it really well. 24 THE CHAIRMAN: I think you have already explained about it 25 being a circumstantial case that, as I understand it, page 151 1 you were not saying to Mr Heath, "Well, you had better 2 go and get some more evidence"? 3 A. No, no, no. I consider it -- I mean, in the aftermath 4 of all this, the conviction was not supported. I have 5 to say that I was surprised that the Crown did not seek 6 a retrial to the -- well, as I'm saying -- 7 THE CHAIRMAN: I am only interested, you appreciate, in the 8 fingerprints. Really, what I am trying to discover is 9 whether the examination of the tin that led to those 10 fingerprints was, if not directly initiated by but 11 encouraged that they should get more evidence and -- 12 A. Not at the same time but any case which is 13 circumstantial, the more circumstances and minnacles(?) 14 that you can throw in, the more compelling it becomes 15 and that wouldn't be lost on any police officer, I don't 16 think. They are -- 17 My view in dealing with police officers over the years 18 is that they are always more hopeful about their case 19 than the Fiscal is getting it because they see their 20 case at the highest. The Fiscal's got to envisage going 21 into court with things being chipped away and, at the 22 end of the day, do we have enough basically to go before 23 a jury and seek a conviction. So my view over the years 24 is that the police have a higher view of the evidence 25 that they've accumulated than sometimes the Fiscal does. page 152 1 THE CHAIRMAN: Thank you very much indeed and thank you for 2 your assistance. As I say, if you want to look at the 3 file, if there is anything you feel that you would wish 4 to bring to our attention then please feel free to do 5 so. 6 A. No, sir, I'm happy for the court to receive my evidence 7 quantum valia but if there is anything -- I am going on 8 holiday next week and I will be away but should there be 9 anything else arising out of this and it's decided to 10 invite me back that may well be a time to maybe get a 11 look at these papers. 12 THE CHAIRMAN: Well, thank you for that offer. I think you 13 will find we will be here for some time yet so unless 14 you are going for a very long time ... 15 MR MOYNIHAN: Can I suggest, because I am conscious that 16 Mr McMenemy has said he asked in our office to see 17 papers I know we do have he has also referred to some 18 documents which I do not know whether we have or not and 19 my learned friend Miss Grahame has indicated that we 20 might have them the only person that would be able to 21 tell us whether we have what Mr McMenemy is referring to 22 is Mr McMenemy so I was going to ask, as early as is 23 convenient to him, if he could have a look at the papers 24 we have. I don't mean today but this is an issue that 25 will arise with some other witnesses perhaps as early as page 153 1 next week so the sooner we start to get to the bottom of 2 this the better. 3 THE CHAIRMAN: If you could assist I would be very grateful. 4 Thank you very much indeed. 5 (The witness withdrew) 6 THE CHAIRMAN: Is there a short witness? I am not anxious 7 to overrun yet again. 8 MISS CARMICHAEL: I have a witness with whom I would only 9 wish to pursue one point. It is quite an important 10 point and I suspect others will have questions and I am 11 very much in your hands as to whether we start the 12 witness. 13 THE CHAIRMAN: I think it is not fair to the witness to 14 start unless it is a witness who is not available 15 tomorrow. 16 MISS CARMICHAEL: The witness I planned to call is 17 Mr MacNeil. 18 THE CHAIRMAN: Mr MacNeil, I will give you the choice would 19 you prefer to begin your evidence today or to wait until 20 tomorrow? It is entirely a matter for you? 21 THE WITNESS: I will start today or tomorrow. 22 THE CHAIRMAN: You don't mind. Then if you don't mind, I 23 think we will start and use the time available. Thank 24 you very much. 25 ROBERT CHRISTOPHER MACNEIL (sworn) page 154 1 THE CHAIRMAN: Your full name, please. 2 A. Robert Christopher McNeil. 3 THE CHAIRMAN: Please take a seat. 4 Examined by MISS CARMICHAEL 5 Q. Mr MacNeil, I think you provided a statement to the 6 Inquiry in writing. 7 A. That is correct, yes. 8 Q. I think you have now signed that statement? 9 A. I have, yes. 10 Q. Now there is really one aspect of your statement that I 11 would like to ask you about but can we take it that the 12 whole of your statement reflects your truthful 13 recollection of the matters you were asked about? 14 A. It does, yes. 15 Q. The matter that I would like to ask you about is what 16 you deal with at paragraph 54 onwards of your statement 17 but before we turn to the particular matter, if you 18 could perhaps just give a brief outline of the job that 19 you were doing back in 1997? 20 A. In 1997 my job was as a Scenes of Crime Officer, which 21 was attending crime scenes and collecting evidence and 22 recording evidence, preserving evidence. 23 My main function at that particular point was within 24 the examination room where it was mainly looking at 25 items that came in from crime scenes or other incidents page 155 1 to examine for fingerprints and it could be anything 2 that came into our department. 3 Q. Who would bring you these sorts of items? 4 A. They would be brought in either by other Scenes of Crime 5 officers or by scientists or by police officers. 6 Q. At paragraph 54 of your statement, you record that you 7 were asked what information you had about some 8 productions in a murder investigation from Kilmarnock 9 involving the murder of a lady called Marion Ross? 10 A. That's correct, yes. 11 Q. You say that you were aware that the gift tag and 12 Christmas present had come in from a murder scene. How 13 would you be made aware of that? 14 A. It is a long time ago as everybody has been saying. I 15 don't know exactly but I know I was aware. It could 16 have been from the Scenes of Crime Officers that 17 attended the particular scene and maybe there were 18 discussions within the department, knowing that if it 19 was being prioritised and it was coming into our lab to 20 be examined; it could have been through our 21 communications, maybe forensic debriefs that occurred. 22 I can't be precise on how I knew that information but I 23 was aware that this package was coming in from this 24 particular scene. 25 Q. I am particularly interested in information that you page 156 1 might have had about the money and the Marks & Spencer's 2 tin that you came to examine and I think you detailed 3 the examination of that elsewhere in your statement. 4 A. That's correct. 5 Q. You say that you were aware that the tin had been seized 6 from a suspect's house. Again, I appreciate it is a 7 long time ago but to the very best of your recollection 8 how did you become aware of that information? 9 A. Again, I can't be sure but I was aware that it came from 10 a suspect's house. Whether it was through my supervisor 11 at the time, whether it was through a phone call that 12 was received at the time, I can't be precise, I'm 13 afraid. 14 Q. You say a phone call was received at the time. From 15 whom would calls of that sort tend to come? 16 A. The phone call could have came from the admin office, it 17 could have come from the police in charge of the case -- 18 very many avenues, I'm afraid. 19 Q. I think when you were giving your statement, Mr MacNeil, 20 you were shown a particular document DB0251 at page 33? 21 A. That's correct, yes. 22 Q. I think this is a form 13B that you had completed 23 yourself. The entries on that are made by you? 24 A. Some of it was -- 25 MISS GRAHAME: Excuse me, Mr Chairman, may I raise an issue? page 157 1 Sorry to interrupt proceedings but the LiveNote screen 2 has stopped. 3 (Pause) 4 THE CHAIRMAN: Maybe the machine has had enough today. It 5 could be, I gather, that the Wi-fi has been affected in 6 some way. Thank you for drawing it to my attention. I 7 had just noticed it. So we will resume tomorrow at 8 10.15. 9 MISS CARMICHAEL: Thank you, sir. 10 (3.53 pm) 11 (Adjourned until 10.15 am the following morning) 12 13 14 15 16 17 18 19 20 21 22 23 24 25