Scottish High Court of Justiciary Decisons

TERENCE JOZEF COLLINS v. HER MAJESTY'S ADVOCATE [1999] ScotHC 62 (10th March, 1999)

On 24 December 1997 in the High Court at Edinburgh the appellant, together with three co-accused, was convicted of murdering Derek Neil Sweet, of 38 East Leven Street, Burntisland, by knocking him to the ground, repeatedly punching, kicking and stamping on his head and body and repeatedly striking his head against the ground. Two other co-accused, who had faced the same charge, were convicted of assault only. The appellant sought leave to appeal on a number of grounds but leave was granted on only one. At the outset of the hearing Mr. Boag-Thomson, senior counsel for the appellant, made a motion to continue the appeal to allow further investigation of a possible new ground of appeal. He explained that he was new to the case, and in consultation with the appellant some five days earlier, he had been provided by him with further information in respect of evidence which had not been heard in the course of the trial. Mr. Boag-Thomson outlined the nature of the further evidence in question and gave some explanation for its lateness. He said that if that further evidence passed the necessary test for the admission of evidence subsequent to a trial, it could result in a verdict of assault or culpable homicide in respect of this appellant rather than murder. He emphasised that at present all his information came from his client but it was of sufficient materiality that it required further investigation. He stated, however, that he was able to address the court on the present ground of appeal if so directed. After hearing from Mr. Jackson, senior counsel for Kabasele George Kabalu, a co-appellant, and the Advocate depute, we decided that Mr. Boag-Thomson should proceed with his present ground of appeal meantime.

That ground of appeal is in the following terms:

At the outset of his submission Mr. Boag-Thomson referred us to the trial judge's report where, on pages 3-4, he set out the background events which led to this appellant's involvement in the fatal assault. The trial judge then went on to narrate the evidence against this appellant in so far as it was said to implicate him in a murderous attack on the deceased, as opposed to an attack restricted to punching which the appellant had accepted he had carried out. Against that background Mr. Boag-Thomson drew our attention to certain parts of the trial judge's charge. He referred initially to a passage at pages 46C-49E where, in general terms, the trial judge explained to the jury the law regarding statements made by an accused person in a number of circumstances prior to the trial. He said he had no quarrel with any of that. He also accepted the general directions which the trial judge gave at pages 49E-50B and 52B to the effect that statements made by a co-accused incriminating an accused person and made outwith the presence of that accused person were not evidence against that accused person. Later, however, at pages 70-71, when reviewing the evidence in the case against John O'Donnell, a co-accused, who had not given evidence but had made a statement to the police, he described that statement as important. Then, at pages 73-74, when he was reviewing the evidence against this appellant, the trial judge stated that when he arrived (at the scene) O'Donnell claimed he saw all three kicking the body. As already noted, however, O'Donnell had not given evidence. Therefore anything that he claimed to have seen could not be evidence against this appellant. The trial judge had accordingly misdirected the jury. Mr. Boag-Thomson went on to submit that the fact that the evidence was fairly evenly balanced as to the "murderous" participation of the appellant bore on the question of whether the misdirection had led to a miscarriage. Given that the verdict against the appellant was a majority one, he submitted that it was impossible not to say that this misdirection did not amount to a miscarriage.

In reply the Advocate depute submitted that the trial judge had properly directed the jury that the evidence was a matter for them. At pages 50 and 52 he had given proper directions with regard to statements made by a co-accused outwith the presence of an accused. The passage at pages 70-71 was clearly in the context of the evidence against O'Donnell himself. There was therefore no misdirection in what the judge said there. The Advocate depute accepted that there was no doubt whatever that at page 73F the judge was in error, but that was because he used the wrong name. It was not O'Donnell who had given the evidence the judge was referring to but the appellant himself. It was the appellant who had said in evidence that when he arrived at the scene he saw "all three kicking the body", one of the three being O'Donnell himself. Moreover, in his statement to the police O'Donnell had said what was attributed to him by the trial judge at the foot of page 70 and did not say what was attributed to him at the foot of page 73. This, therefore, was a slip of the tongue by the trial judge. Accordingly, although it was a misdirection, it was not in the circumstances a material one. In any event, there was no miscarriage of justice. There was a substantial body of evidence which incriminated the appellant in the crime of murder. The Advocate depute then went on to list the passages of evidence that he relied on for that purpose.

In the circumstances it is not necessary to set these out because in our opinion there is no merit in this ground of appeal. It is, of course, accepted that when the trial judge mentioned O'Donnell's name at the foot of page 73 in his charge that was a mistake and therefore technically a misdirection. But we are in no doubt that it was nothing more than a slip of the tongue and we are quite satisfied in the circumstances that the jury could have been under no illusion about that. The jury had had the trial judge's general directions to the effect that a statement by a co-accused made outwith the presence of an accused person was not evidence against that accused person. No criticism was made of those directions. The jury must have been well aware that O'Donnell himself did not give evidence and that therefore his statement made outwith the presence of the co-accused could not be evidence against any of them. The jury had also heard the evidence by the appellant in which he claimed that he "saw all three kicking the body" and that one of the three was O'Donnell. In our opinion they could not have been in any real doubt that that is what the trial judge was referring to in that passage. We have only to add that in the passage at pages 70-71 in which the trial judge refers to O'Donnell's own statement to the police as "an important matter" he was quite clearly speaking in the context of the case against O'Donnell himself. The jury could have been in no possible doubt about that and we do not think that that remark has any bearing on the present question in relation to this appellant.

For these reasons this ground of appeal must be refused. We return, therefore, to the initial submission by Mr. Boag-Thomson that the appeal should be continued in order that he has a reasonable time to investigate the new matters that he outlined to us at the start of his submissions. Broadly, these were, first, that a named eye-witness described a further attack on the deceased after the appellant had been punching him as he accepted he did. And, secondly, that a taxi-driver who drove two of the assailants after the incident spoke of admissions made by them and statements concerning the burning of clothing. It is clear that these might have a material bearing. We are therefore of the view that it would be appropriate that a reasonable time be given to investigate them in order to see whether they could form a possible further ground of appeal. We will accordingly continue the appeal to a date to be fixed for that purpose. On that date we will expect to be informed fully as to the progress which has been made and whether a further ground of appeal is indeed to be put forward.