HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by LORD McCLUSKEY
in
APPEAL
by
DAVID JAMES CALLAN
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
On 22 April 1997 in the High Court, sitting in Glasgow, the appellant was convicted on a charge of murder.
We were informed that, earlier in that year, the appellant had been indicted along with several co-accused, namely Gordon John Andrew, David Anthony Davidson, and Paul Thomas McCann. On that earlier indictment all four were charged with murdering James Paul McGinlay on 27 October 1996 in Brown Street, Glasgow near Argyle Street. The Crown did not, however, proceed to trial in respect of that indictment. A second indictment was served. In the second indictment, the appellant alone was charged with the murder of James Paul McGinlay. Gordon John Andrew, David Anthony Davidson and Paul Thomas McCann were charged with aggravated assault upon, but not with the murder of, James Paul McGinlay. The first charge in that second indictment read,
"(1) On 27 October 1996 in Brown Street, Glasgow, near Argyle Street, you DAVID JAMES CALLAN, GORDON JOHN ANDREW, DAVID ANTHONY DAVIDSON and PAUL THOMAS McCANN did assault James Paul McGinlay, care of Stewart Street Police Office, Glasgow, pursue him, seize hold of him, knock him to the ground, repeatedly punch and kick him on the head and body, repeatedly strike him on the head and body with metal bars or similar instruments to his severe injury, and you DAVID JAMES CALLAN did repeatedly strike said James Paul McGinlay on the head and body with a knife and you DAVID JAMES CALLAN did murder him".
The appellant, McCann and a Gerard Daniel Docherty also faced a second charge of assaulting Ian Watson on the same occasion. All five accused pleaded not guilty and the trial commenced on 14 April 1997 before Lord Marnoch and a jury. After the Crown had adduced evidence from ten witnesses, Gordon John Andrew and David Anthony Davidson pled guilty as libelled. Paul Thomas McCann also pled guilty to the first charge, under deletion of the words "repeatedly strike him on the head and body with metal bars or similar instruments", and adhered to his plea of not guilty in respect of the second charge. The Advocate depute intimated that these pleas were acceptable to the Crown. Docherty pled guilty to the second charge, subject to certain deletions, and the Crown withdrew the second charge against the appellant. Thereafter the trial continued against the present appellant alone and only in respect of charge (1). The Crown adduced as witnesses inter alios Gordon John Andrew and Paul Thomas McCann. Each of these witnesses gave evidence against the appellant and each stated that he had seen the appellant apparently stab the deceased in the stomach after they had broken off their assault upon John Paul McGinlay. In addition to the evidence he gave of witnessing the apparent stabbing by the appellant, Paul Thomas McCann stated that, shortly after the incident and in the street, he heard the appellant admit to stabbing the deceased. Apart from Gordon John Andrew and Paul Thomas McCann, there were no witnesses who claimed to have observed the stabbing. A witness, Graham Gourlay, gave evidence that he had observed the incident from the window of a flat, that he saw the appellant at the locus and that he saw him kick the deceased in the face as he, the appellant, left the scene. He said that the appellant was the last to leave the scene. He did not give evidence of seeing any stabbing. Apart from the evidence given by persons claiming to be eye-witnesses, incriminating evidence was given by Donna Marie Shephard; her evidence was to the effect that, shortly afterwards, while in a nightclub near to the locus of the stabbing, she had heard a person whom she believed to be the accused make an admission to the effect that he had stabbed the deceased. It was not in dispute at the appeal hearing that the jury would have been entitled to treat that evidence as incriminating the appellant. Christopher Graham, a steward in the nightclub in which Donna Marie Shephard worked, also claimed to have heard the appellant make a statement to the effect that a person had tried to stab him (the appellant) and that he (the appellant) had taken the knife off that person and "plunged him". It appears that Shephard, Graham and McCann were speaking to three distinct occasions (although they were closely related in time) when the appellant was said to have admitted his involvement in the stabbing. The appellant himself gave evidence. He claimed to have taken a knife from McGinlay after McGinlay produced the knife in the street. He denied stabbing McGinlay.
It was not in dispute that, both in cross-examination and in the address to the jury, the solicitor-advocate then representing the appellant made a sustained attack upon the credibility and reliability of the alleged eye-witnesses, Gordon John Andrew and Paul Thomas McCann, and that that attack included the clear suggestion that each of them had a strong interest to dissociate himself from the murder and to minimise his involvement in the attack upon the deceased and that each had chosen to lie about his own role and to attempt to lay the sole blame upon the appellant and to minimise his own involvement by claiming that the appellant had produced and used a knife only after they had desisted from attacking James Paul McGinlay. The jury were also invited by the defence not to accept the evidence of Donna Marie Shephard, Christopher Graham or Graham Gourlay, though for different reasons.
In presenting the appeal, Mr. Sutherland accepted that the evidence presented to the court was sufficient in law to support the jury's verdict. He submitted, however, that the trial judge had misdirected the jury in relation to corroboration and that that misdirection had resulted in a miscarriage of justice. He submitted, and no contrary submission was or could be made, that the three separate incriminatory admissions allegedly made by the appellant and overheard by Donna Marie Shephard, Christopher Graham and Paul Thomas McCann could not corroborate each other as to the truth of the fact said to be admitted, because they all proceeded from the same source, namely the mouth of the appellant; the evidence of incriminating admissions made by the appellant, therefore, required to be corroborated. It was accepted, of course, that the evidence given by Gordon John Andrew to the effect that he had seen the appellant apparently stabbing the deceased was incriminating and was corroborative of any other incriminating evidence proceeding from any other witness; the same was true of the evidence of Paul Thomas McCann to the effect that he had witnessed the stabbing. Furthermore, either of these witnesses could provide corroboration of the other. Their evidence, therefore, was sufficient in law for proof of the crime charged. Mr. Sutherland submitted, however, that, given the way in which the defence was presented, it was essential for the trial judge to give the jury clear directions as to corroboration so that they might properly deal with the situation which would arise if the jury were not satisfied that the evidence of Andrew and McCann to the effect that they had witnessed the appellant stabbing the deceased was reliable evidence. If they were not satisfied that that evidence was reliable then, apart from the evidence of Graham Gourlay, who observed no stabbing, they would be left with the evidence of two or three persons (Paul Thomas McCann being the third), each of whom was claiming to have heard the appellant admitting the stabbing shortly after it had taken place. In this situation, the trial judge's directions in relation to corroboration were misleading, it was submitted, because they could properly and easily be understood as indicating that the evidence of one witness to hearing an incriminating admission from the appellant could be corroborated by the evidence of another witness to the effect that he or she had heard the appellant make an incriminating admission. The trial judge had effectively defined corroboration by saying,
"Next I have to direct you that in Scotland no one can be convicted on the unsupported testimony of a single witness, however credible his or her evidence may seem to be. Scots law insists on a check. There must be corroboration, that is, direct supporting evidence from a second witness or supporting evidence from facts and circumstances proved incidentally by other witnesses in the course of the trial - sometime referred to as circumstantial evidence". (The punctuation appearing in the transcript has been slightly altered).
These words could lead the jury erroneously to suppose that the testimony of a single witness, such as Donna Marie Shephard, that the appellant had admitted the stabbing could be corroborated by the supporting evidence from a second witness, such as Christopher Graham, that he had heard a similar admission. The trial judge, after dealing with associated matters, concluded his directions on corroboration by saying,
"In short - and this is the fourth thing I have to say to you - before you can convict an accused there must be two independent sources of evidence which you find acceptable and which point towards his guilt of the crime in question".
These words, especially given the opening phrase "In short", did not correct the impression that witnesses such as Donna Marie Shephard and Christopher Graham might be regarded as "independent" sources of evidence pointing towards the accused's guilt. The word "sources" in that passage, whatever significance it might have for lawyers in this context, was not likely to be understood by lay members of the jury as referring back to the original sources of the evidence. In the only other passage which had any bearing upon the matter, after he told the jury that "the matter of weighing up the evidence in this case and applying it" was within the province of the jury, the trial judge simply listed the witnesses on whom the Crown relied, namely Paul McCann, Gordon Andrew, Christopher Graham, Donna Shephard and Graham Gourlay. He made no successful attempt then or at any other time to draw the attention of the jury to the fact that the evidence of Shephard, Graham and, Paul McCann about incriminating admissions provided only one source of incrimination and that that evidence required corroboration from a source independent of what these witnesses stated about any admission by the appellant. In his Report the trial judge had drawn attention to the direction quoted above - that "there must be two independent sources of evidence which you find acceptable and which point towards (his) guilt of the crime in question". However, the Report did not deal with the point that this direction expressly bore to be a shortened version of what had gone before or explain how a lay jury could be expected to give the word "sources" the full legal significance and content that it had to have if it could be regarded as an adequate statement of the law. The only other comment made by the trial judge in relation to this ground of appeal was to point to the weight of evidence available to support the conviction; this comment, however, was not relevant to the submission that there was a material misdirection.
In reply, the Advocate depute drew attention to the use by the trial judge, in the first passage quoted from his charge to the jury, of the words "testimony" and, shortly thereafter, "evidence". He submitted that a distinction was being drawn here between two different kinds of evidence. We should observe, in relation to this submission, that the trial judge himself has made no attempt in his Report to explain his direction in such terms; and we are not persuaded that a jury would follow the supposed distinction between "testimony" and "evidence" to the effect that they would conclude that they were being instructed that any evidence of an incriminating admission would require corroboration from a different kind of evidence, being evidence not ultimately proceeding from the appellant himself. The Advocate depute also sought to refer to a statement that the trial depute had made in the course of his address to the jury explaining his reasons for withdrawing charge (2) which the appellant, Paul Thomas McCann and Gerard Daniel Docherty had faced. We are, however, not persuaded that the trial depute's explanations in relation to such a matter could have any bearing whatsoever upon the jury's understanding of the judge's directions on corroboration in relation to a different charge. The court drew attention to the trial judge's direction that corroboration could take the form of "direct supporting evidence from a second witness...". The advocate depute accepted, however, that the trial judge had not attempted to explain what was meant by the word "direct" in relation to evidence; and he was not able to submit that a jury would be able, without clear guidance from the judge, to understand that what was being suggested by the use of the adjective "direct" was that evidence from one source, in the shape of an incriminating admission, could be corroborated by supporting evidence from a second witness who was giving direct evidence of observing the commission of the crime; the trial judge had offered the jury no explanation of the meaning, in the context of evidence, what was meant by "direct". It is perhaps noteworthy that the trial judge's Report does not attempt to explain that the word "direct" was of material importance in explaining the law regarding corroboration.
We are satisfied that, in the circumstances of this case, the directions given by the trial judge were not adequate and that their inadequacy has resulted in a material misdirection. It was essential in this case, as it is in most solemn cases, to explain to the jury what corroboration meant. Corroboration is not an easy concept for lay persons to understand. Where, as here, the application of the legal rules about corroboration could become of critical importance, the explanation as to the meaning of corroboration required to be sufficient to enable the jury to grasp that several witnesses speaking quite independently of each other about distinct incriminating admissions uttered by the appellant on different occasions could not be regarded as independent sources of evidence sufficient in law to establish guilt. Having regard to the way in which the defence was conducted it was, in our opinion, essential for the trial judge to recognise that the jury might reject the evidence of Gordon John Andrew and Paul Thomas McCann, for the reasons advanced by the defence or upon some other proper basis, and that they would then have to address the question as to whether or not there was evidence sufficient in law from the other witnesses. In that context it was, in our opinion, essential for the trial judge to make it plain to the jury that the evidence of those persons who claimed to have heard incriminating admissions from the appellant shortly after the stabbing was all evidence which ultimately proceeded from the same source, namely from the accused himself. It was essential, therefore, to indicate to the jury that, although these witnesses could support each other in relation to proof of the fact that the appellant was admitting that he had stabbed the deceased, they could not and did not provide evidence sufficient in law to prove that he had in fact stabbed the deceased. The directions given by the trial judge did not provide the jury with the explanations necessary to enable them to understand and properly apply the law as to corroboration.
We conclude that the misdirection which the submissions on behalf of the appellant have identified went to the essence of the matter of corroboration and resulted in a miscarriage of justice. In these circumstances, the conviction must be quashed.
The advocate depute made a motion to the court under section 118(1)(c) to grant authority to bring a new prosecution in accordance with section 119 of the Act. In reply, Mr. Sutherland accepted that this was a matter for the court, but asked the court to take into account the fact that the appellant would, if the motion were granted, require to face a third indictment containing the same charge of murder.
As the charge is a most serious one and as the Crown bears no direct responsibility for the misdirection which has led to the quashing of the conviction we have granted the Crown's motion. Although, however, the Crown had no direct responsibility for the misdirection, we consider it appropriate to emphasise that it is always open to the Advocate depute, as the judge concludes his charge to the jury, to rise and seek leave of the court to submit that the directions given on an important point may require to be amplified or altered. It would then be for the trial judge to hear submissions on such intervention, and to do so in the absence of the jury if that were thought to be necessary.
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by LORD McCLUSKEY
in
APPEAL
by
DAVID JAMES CALLAN
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______