Scottish High Court of Justiciary Decisons

DEREK GAVIN HOY v. HER MAJESTY'S ADVOCATE [1999] ScotHC 44 (25th February, 1999)

The appellant was convicted of murder and appeals against that conviction. Originally he was indicted along with a co-accused, Harvey. At the end of the evidence in the case a submission was made to the court by counsel for Harvey to the effect that there was insufficient evidence against that accused. There was no evidence that he had personally been involved in the stabbing of the deceased and there was no evidence that he was aware that any other person who was with him had a knife, and would use it for the purpose of stabbing the deceased. The trial judge acceded to this motion. That still left the question as to whether Harvey could be convicted of assault on that charge, but the advocate depute withdrew the libel and, accordingly, the trial judge acquitted Harvey. Originally there were four other

charges on the indictment against the appellant but these were of what might be described as a narrative nature. Before the advocate depute addressed the jury he withdrew these charges against the appellant. That left the murder charge alone against the appellant alone.

The evidence in the case, as narrated by the trial judge in his report, was that on the night of 30 August 1997 the appellant attended a party. He left about 10. p.m., by which time he was drunk and had taken drugs. He went to the house of Wood, which was nearby, and in that house the now deceased Melvin was drinking with others. A fight ensued between the appellant and the deceased which continued outside the house. The two then separated. At about the same time the former co-accused Harvey, along with Callum Doyle and Tracy Stirling, were driving in the area in Harvey's car. The appellant met them and said he was looking for the deceased because he had been fighting with him earlier at Wood's house. The appellant and Harvey then broke into Wood's house and stole certain items. They then returned to the car along with Mark Stokes, Callum Doyle and Michelle McDonald. They then endeavoured to find Melvin's house and eventually did reach that destination. The appellant and Harvey got out and went into the deceased's house. Shouting was heard from inside the house and various witnesses saw Harvey and the appellant running out of the house. One witness spoke to hearing the appellant shout "Bolt, get away from me I'm covered in blood". They then ran to the car which drove off. There was evidence that later that night the appellant was in Harvey's house when Michelle McDonald asked what had happened. The appellant said he had stabbed Melvin a few times. He said he had gone to the door and knocked on it, saying he was someone else. The deceased came to the door, he pushed the deceased and when he got in he stabbed him four or five times in the stomach. He also said he had got rid of the knife. There was evidence that he had gone to the house of his aunt, Boswell, where he had told the young girl who was baby-sitting that he had been in a fight. Her evidence was not clear as to precisely what he said but he said either that he'd been stabbed or that he had stabbed Melvin. In that house he then washed his shirt. The following day there was evidence that he went to Tracy Stirling's house and there indicated that he had heard that Melvin was dead and he said this in such a way as to indicate that he had killed the deceased. The appellant himself gave evidence, which was to the effect that he had gone to Wood's house where he had been attacked by the deceased. A fight had ensued and the deceased had attacked him with a knife, causing injury. The appellant had been cut and was bleeding. He went to the house of Boswell where he asked the baby-sitter to wash his shirt as his own blood was on it. He said that he had been fighting with Melvin, who had tried to stab him. Thereafter he went home and went to bed. He denied being in Melvin's house and denied that he had ever made any admissions to having stabbed Melvin. His alibi was supported by his mother who said he came home at about 11 p.m. She shut him in his room, although he wanted to go back out.

The grounds of appeal against conviction advanced by the appellant are that the trial judge misdirected the jury by failing to put fairly the appellant's position in evidence with regard to the questions of incrimination, identification and the alleged confessions, and that the trial judge also erred in failing to direct the jury on concert, which remained a live issue. In relation to the first matter, it was submitted that because the appellant had lodged a special defence of incrimination which incriminated Harvey and Callum Doyle the issue was still live as to whether or not Harvey, in particular, had taken part in the murderous attack. The trial judge did not mention this in his charge to the jury. As far as identification is concerned, that related in particular to the evidence of Lesley Gilroy, who gave evidence that she saw the appellant and Harvey getting out of the car and going into the deceased's house. The trial judge highlighted the importance of Mrs. Gilroy's evidence, but failed to mention to the jury that in fact she had only got a glimpse of the appellant's face in the car as it passed her and thereafter she saw the back of two people getting out of the car and going into the deceased's house. The qualifications to Mrs. Gilroy's evidence were of particular importance when one of the incriminees, Callum Doyle, looked very similar to the appellant. As far as the alleged admissions were concerned, it was submitted that two of the witnesses who spoke to such admissions, namely Michelle McDonald and Mark Stokes, were partial to, and friends of, the co-accused Harvey. This tainted their evidence, but this fact was not mentioned to the jury by the trial judge. The admission to the baby-sitter, Deborah Boswell, was, in any event, of a highly equivocal nature and was equally consistent with the appellant's account of having gone to the Boswell house after the initial fight with the deceased, at which stage the appellant said he had been cut by a knife wielded by the deceased. As far as Tracy Stirling was concerned it was submitted that there was an explanation by the appellant that what he had said to her referred to the earlier incident and not to the time at which the deceased was stabbed.

The trial judge dealt with the evidence at pages 20 to 22 of his charge. He said that there were three sorts of evidence, firstly, there was the matter of the alleged admissions by the accused to the effect that he had stabbed the deceased. In particular there was the admission spoken to by Michelle McDonald and perhaps, also, another to the effect that in Mark Stokes' house the accused had said he had stabbed Melvin four or five times. The trial judge then went on to say that the jury may wish to consider the eye-witness evidence, firstly that of Lesley Gilroy. He said that Lesley Gilroy's evidence, putting the matter broadly, was that she saw the accused get out of the car and gain entry to the deceased's house and return from it, all at exactly the time when the deceased was stabbed. Thirdly, he said that the jury could consider all the facts and circumstances before the stabbing, at about the same time as the stabbing, and afterwards, which pointed to the guilt of the accused. The trial judge then went on to say, against those sources of evidence, the jury would have to consider the evidence of the accused that the Crown evidence was all deliberate lying or was mistaken, since he was home in bed and nowhere near the car referred to and nowhere near Melvin's house. In addition they would have to give what weight they would feel appropriate to the evidence of his mother who spoke to him being in the house that night.

Counsel submitted that it was quite insufficient for the trial judge simply to refer to the evidence of the accused that the Crown witnesses were lying and that he was elsewhere. He submitted that it was the judge's duty to remind the jury of the various problems with the Crown evidence, in particular the fact that the admissions were either highly equivocal or spoken to by persons who were partial to the co-accused, and that as far as the purported identification by Mrs. Gilroy was concerned it also had its problems. It was submitted that the failure to deal with Mrs. Gilroy's evidence was further compounded by the fact that after dealing so briefly with the evidence in general the trial judge went on to deal with the matter of identification. He pointed out that defence counsel had correctly said that evidence of identification should often be considered very carefully. He reminded the jury that there had been an identification parade at which the appellant was pointed out. He then went on to say that the difficulties in identification normally arose when a witness is trying to identify a person whom he had never seen before, but where a person is known to the witness the jury might think that such difficulties are much less because they are really talking not about identification but about recognition. The jury was then reminded that most, if not all, of those who put him in the deceased's house knew who the appellant was and, in particular, when Mrs. Gilroy had it put to her that there were difficulties in identifying people she said "Not when you know the person concerned". Counsel accordingly submitted that so far from putting the matter fairly to the jury the judge had gone out of his way to detract from the criticisms of Mrs. Gilroy's evidence by pointing out in some detail to the jury that she purported to recognise the appellant because she knew him. On the whole matter, therefore, counsel submitted that the trial judge's presentation of the evidence to the jury was unbalanced and unfairly loaded against the appellant. While the judge had put to the jury all of the salient facts of the Crown case, he had dealt very briefly indeed with the defence case and had failed to mention any of the factors which were critical of the Crown witnesses. The resulting imbalance was so unfair to the appellant that a miscarriage of justice had resulted.

We note that in an earlier part of his charge the trial judge had made the usual observations to the jury to the effect that it was a matter for them to decide which witnesses to believe, which witnesses they held to be credible and which witnesses they held to be reliable. It was a matter for them to discern whether variations in the recollections of witnesses were or were not significant. He also went on to stress that any comments he made about the evidence would be immaterial and the jury would be fully entitled to ignore any such comments. He stressed that it was the jury's view of the evidence that counted and theirs alone. Immediately before starting his brief review of the evidence he reminded the jury that the evidence was the jury's province and not his and also reminded them that they had had the benefit of the submissions of counsel upon the evidence to which they would give due consideration. It was then that he embarked on his review of the evidence. As he said to the jury, he did not go over the whole of the evidence, but was merely pointing out to them the sort of, or type of, evidence that they might like to consider which the Crown had advanced. He then in very brief and very general terms summarised the nature of the Crown case. It is true that in this portion of his charge he did not mention any of the specific criticisms of the Crown evidence, but, as we have said, he had already reminded the jury that they would have to give due consideration to the comments of counsel upon the evidence. In relation to the defence he reminded the jury that the basic defence was that the appellant was home in bed and nowhere near the car or the deceased's house and that, accordingly, the Crown witnesses, who gave evidence contrary to that view, were deliberately lying or were mistaken. He also reminded the jury that they had the evidence from the appellant's mother in relation to the alibi.

It is, in our view, clear that the judge had no intention of embarking upon a detailed or comprehensive review of the evidence. His summary of the Crown case, which is contained in about one page of typescript, is wholly general in nature. In that context it is not altogether surprising that his summary of the defence case would be equally brief. He did not tell the jury about any of the criticisms, either of the defence case or of the Crown case, but he had already told the jury that they had to bear in mind the submissions of counsel upon the evidence. In our opinion, while other judges might have chosen to say more, or indeed, say less about the evidence, it cannot be said in this case that the trial judge's presentation was so unbalanced as to be unfair to the appellant. We are quite satisfied that, looking at the charge as a whole, it cannot be said that a miscarriage of justice has occurred on this aspect.

The other ground of appeal relates to the matter of concert. Obviously concert would have been in issue had the co-accused remained in the case. We are informed that the advocate depute addressed the jury on the basis that they would have to find that the appellant was himself the person who stabbed the deceased before they could convict. No question of concert was raised in any way by the advocate depute to the jury. As the defence was that the appellant was not present in the house at all, no question of concert arose as far as the defence were concerned. Counsel for the appellant accepted that if the trial judge had said nothing at all about concert and had made it clear to the jury that they had to consider the case on the basis that it was the appellant alone who stabbed the deceased, he could have no complaints. However, at one point in his charge (page 19D-E) the trial judge said:

Counsel also referred to an earlier passage in the charge where the trial judge was dealing with the reason why the case against Harvey had been withdrawn and where he said

Accordingly, the trial judge had raised the question of concert, but had failed to give any appropriate directions relating to concert. In any event, he failed to direct the jury that they had to consider the case against the appellant as actor alone.

In our opinion, having regard to the way in which the matter was approached by the advocate depute in addressing the jury, it would have been abundantly clear to the jury that they had to consider whether the appellant was the person who himself had stabbed the deceased. The nature of the evidence, and in particular the alleged admissions, would tend to indicate that it was the appellant who wielded the knife. In these circumstances we agree that it would have been better if the trial judge had said nothing at all about acting along with someone else. We are, however, quite satisfied that in its context the comment which he made could not have conveyed to the jury any impression that they could convict the appellant if they thought that someone else had done the stabbing and that the appellant was in the house along with that person but himself doing nothing. The comment about the accused acting on his own, or along with anyone else, is explicable on the basis that the jury had evidence before them that Harvey was in the house with the appellant at the material time, but in our view could not convey the impression to the jury that they could convict on any other basis than that they were satisfied that it was the appellant himself who was the actor in this affair. While, therefore, it might have been better if the judge had said nothing at all about this matter, we are satisfied that nothing he did say detracted in any way from the presentation of the Crown case to the jury by the advocate depute on the basis that the appellant alone was responsible for the actual murder. On the whole matter, therefore, we are satisfied that no miscarriage of justice has occurred and accordingly this appeal must be refused.