Scottish High Court of Justiciary Decisons

RAYMOND PLATT v. HER MAJESTY'S ADVOCATE [2000] ScotHC 44 (31st March, 2000)

[1] On 16 April 1999 the appellant was found guilty of the murder of Marc Hayes at a house at 93 Craigton, Glasgow on 30 November 1998. He was also found guilty of an amended charge of attempting to defeat the ends of justice by various acts to avoid detection, arrest and prosecution for the murder. The appellant had also faced a charge of contravening section 4(3)(b) of the Misuse of Drugs Act 1971. Although there was sufficient evidence to justify conviction on this charge, it was withdrawn by the Advocate depute after the closing of the defence case in order that the jury might concentrate on the other charges to which we have referred.

[2] At the trial it was not in dispute that the deceased had died after a violent incident between him and the appellant in the latter's house. Shortly thereafter a number of drug addicts, who had called in order to buy heroin from the appellant, saw the deceased's body in the livingroom. Later a bloodstained knife, which the appellant admitted had been used in the incident, was found in the house. The deceased died as the result of blood loss due to a number of stab wounds. The Crown relied on the evidence of a pathologist that injuries to his neck and chest showed that he had been immobilised and incapacitated while these injuries were inflicted upon him. The Crown also founded on evidence as to statements made by the appellant as admissions that he had murdered the deceased. In addition the Crown relied on evidence that the appellant had enlisted, or sought to enlist, the assistance of a number of drug addicts in order to dispose of evidence and conceal the body. The appellant gave evidence in his own defence that he had been attacked by the deceased and had struck him on the face and neck in self-defence. The only explanation for the other injuries of the deceased was that they must have been caused accidentally when the two men were rolling about on the floor.

[3] The grounds of appeal arise out of what occurred during the course of the evidence of a Crown witness, John Kerr. The Crown case opened with the evidence of a scenes of crime officer. John Kerr was the next witness. He gave evidence in chief that he was a drug addict who called at the house in order to purchase drugs from the appellant, and that the appellant asked him to dispose of the body. During the course of his examination in chief he described being in the presence of the appellant when the latter telephoned his drug supplier in order to obtain a consignment. He stated that the appellant said to his supplier, in the course of the conversation, "I've done a big M". The Advocate depute repeated this answer, and asked the witness what he understood those words to mean. The witness replied that the words meant a murder. The Advocate depute then asked the witness to confirm that the appellant had said: "I've done a big M", meaning "I've done a murder". In answer, the witness agreed, saying that the accused had said: "I've done a big M again". The first ground of appeal relies upon the effect of the word "again" on the trial. Thereafter the witness gave evidence, after some pressing by the Advocate depute, of other incriminating statements made by the appellant.

[4] At the outset of his cross-examination senior counsel for the appellant took from the witness that he had other suppliers of drugs apart from the appellant. He then asked him for the names and addresses of all the other suppliers. The witness expressed reluctance to answer the question. The Advocate depute objected to the question, and after hearing argument, the trial judge sustained the objection. In the second ground of appeal it is maintained that the trial judge was wrong to sustain the objection, and hence exclude the evidence which it sought to elicit. After the trial judge sustained the objection counsel for the accused moved him to desert the diet pro loco et tempore by reason of the prejudice which had been caused by the witness using the word "again". The trial judge refused that motion.

[5] It is convenient to begin by considering the first ground of appeal. In his report the trial judge records that, while the word "again" was heard by the Crown junior and the defence solicitor, who were seated closest to the witness, it was not heard by him or by the Advocate depute or the clerk of court. It also appears that he had not been heard by senior counsel for the appellant, who made no submission about it at the time. However, the trial judge satisfied himself, by listening to the tape recording of the proceedings, that the witness had used the word "again". He stated at the time when he gave his reasons for refusing to desert the diet that he had to proceed on the basis that members of the jury may have heard that word. Counsel for the appellant moved him to desert the diet pro loco et tempore on the ground that the witness's evidence was so prejudicial that it could not be cured by a direction to the jury. Counsel submitted that the prejudice was by reason of two factors, first that the witness was motivated by malice to insert the word "again" and, secondly, he was "unable" to cross-examine the witness in regard to this matter. The situation was that the appellant had been acquitted of a charge of murder about 12 months before. It is plain that counsel meant that, because of the risk of making matters worse, it was inadvisable for him to cross-examine the witness about his use of the word "again". The trial judge gave his reasons at the time when he refused the motion, and, in his report to this court he has elaborated upon them.

[6] Mr. Jackson, in presenting the appellant's appeal did not found on the matter of malice. He accepted that this was something which was of no moment. What mattered was the highly prejudicial statement by the witness. Even with the most skilful cross-examination, it could not be explored without the likelihood of matters being made worse. Accordingly, it stood unchallenged. It was one of those cases in which, even though there had been no breach of the provisions of section 101 of the Criminal Procedure (Scotland) Act 1995, and even although what had occurred was not through the fault of anyone, the trial should have been brought to an end. There was no way of determining the limit of the damage which that evidence might have done. Evidence of a confession by an accused person was a much more compelling type of evidence than that of a pathologist who was asked to reconstruct what had happened. It was also important to note that the Advocate depute at the trial focused on the statement which the witness had originally made and asked him to repeat it. The present case was completely different from the one in which a reference to a minor previous conviction of an accused slipped out in the course of the evidence. In such a case there would be no ground for the desertion of the diet, and the better course would be for no further reference to that matter to be made in the course of the evidence and the judge's charge.

[7] Mr. Jackson was particularly critical of the line of reasoning which the trial judge had expressed at the time when he rejected the motion by counsel for the appellant. This was based on the view that even where the Crown knew that a witness would give evidence that the accused had said that he had committed another murder, this evidence would be relevant and admissible, despite the fact that it carried an implication going beyond the charges on the indictment. The Crown, the trial judge said, could hardly be barred from leading such evidence, which was plainly material to the crime charged; and the witness could hardly be expected to give an edited account of what was said. If that was the position where the Crown could anticipate the evidence, then a fortiori where it was volunteered by the witness unexpectedly. Mr. Jackson submitted that it would be objectionable for the Crown to lead such evidence, since it would go beyond the charges in such a prejudicial way. There were practical alternatives: witnesses regularly were invited to give edited versions of statements made by accused persons: or the unobjectionable part of a statement could be elicited, perhaps by agreement, by means of a leading question. We note that, for his part, the Advocate depute in this court accepted that the example given by the trial judge gave rise to a difficulty. He made it clear that he did not rely on that part of the trial judge's reasoning.

[8] Mr. Jackson also criticised the trial judge's remark in his report: "I also bore in mind that it was perfectly possible, and seemed to me to be more likely than not, that the jury had not heard the offending word". Mr. Jackson submitted that it was not open to the trial judge to depart from the premise which he stated at the time namely: "I must proceed on the basis that members of the jury may have heard that word ("again")". The Advocate depute agreed that it had to be assumed that members of the jury may have done so.

[9] The remaining reasoning of the trial judge, apart from his rejection of the significance of malice on the part of the witness, was directed to the following matters. He observed at the time that the problems caused by the evidence of the witness was somewhat less serious in the present case than it might have been in others since the position of the defence was that the evidence of the conversation was a complete fabrication. Accordingly it was not necessary to go through the contents of the conversation in detail. In his report the trial judge records that counsel for the appellant put to the witness that he had got swept up in the enquiry. As a "junkie" in the company of the police, he would have said anything to get out of the police station. He would have agreed with any proposition put to him. It was suggested to him that he had been "strung out" (i.e. suffering withdrawal symptoms) while in the custody of the police. Subsequently, it was put to him that he had told lies to the police because he was dealing in drugs; that he had concocted the story about the appellant, and now knew that he would be in trouble if he did not stick to the script in court. In short, he was subjected to a vigorous attack on his credibility and reliability. The Advocate depute founded on this, maintaining that it reduced the force of the point taken on behalf of the appellant.

[10] The trial judge added in his report that, even if there had been some sort of prejudice as was suggested by counsel for the appellant, he considered that he should in any event exercise his discretion against deserting the diet. He pointed out that the trial was at an early stage. This could be seen as a factor favouring desertion, in that not a great deal of evidence would be lost; but it could also be seen as a factor against desertion, in that a great deal more evidence was likely to be heard, and time would pass, with the consequence that the objectionable evidence would be likely to fade in significance. The trial was expected to last until the end of the week (the evidence of the witness Kerr having been heard on Monday of that week), and so it proved. A great deal more evidence was heard over the succeeding days, as he had anticipated. Mr. Jackson maintained that, if time scale was a relevant factor, he relied upon it. The desertion of the diet at an early stage of the trial would not have the same effect on later proceedings.

[11] The trial judge went on to state in his report that he also bore in mind that, although the evidence already led was not particularly extensive, it included some important evidence from the witness. He had a history of drug addiction and appeared to him to be reluctant at times to give his evidence. He says that he was conscious of the risk that, if he were to desert the diet, his evidence might not be available at a subsequent trial, either because he had absconded or because he failed to speak up. He did not refer to that risk at the time, as he did not think it advisable to advert in public to the risk of a witness absconding, prevaricating or being intimidated. Mr. Jackson maintained that any difficulties which might arise in later proceedings as a result of witnesses not co-operating, was not a legitimate matter for the court, but only for the Crown.

[12] The fact that a witness has given evidence that an accused person had stated that he had committed a similar previous crime is not necessarily determinative of the question whether he cannot receive a fair trial, and hence that the diet should be deserted. The trial judge plainly had a discretion in the matter having regard to the circumstances. In the present case we proceed on the basis that the Advocate depute had no previous warning that the witness would make the statement that the appellant had admitted to having committed a murder before. Furthermore, it is plain that he did not seek to draw attention to or amplify the evidence when it was given but departed from that subject and made no further reference to it. The Advocate depute in this court emphasised that the statement had had little impact. It was made only once, and inadvertently, although, as we have already noted, he accepted that it had to be assumed that it had been heard by members of the jury.

[13] However, the evidence that the accused had admitted to having committed a previous murder was a formidable matter. The fact that it came out at an early stage of the evidence does not appear to us to point towards the lessening of the effect of that disclosure. The jury might well attach particular significance to the first evidence which they had heard as to admissions made by the appellant.

[14] Normally it would be of critical importance that it was a matter for the discretion of the trial judge whether he considered that the prejudice was such that the diet should be deserted. However, in the present case it appears that his reasoning was influenced by using an example which was not well chosen, and from which the Advocate depute has disassociated himself. Furthermore, having regard to the terms of his report, we are not satisfied that the trial judge has adopted a consistent line to the audibility of the evidence in question.

[15] These considerations point to the conclusion that the reasoning of the trial judge was flawed. We will therefore consider the question for ourselves. The prejudice caused by the evidence which the witness volunteered was, in our view, such that there was a compelling case for discharging the diet. We are not persuaded that it can be put to one side by reliance on the fact that the witness was thereafter subjected to a line of cross-examination which was directed to demonstrating that his whole evidence as to the conversation was a tissue of lies. In our view the trial judge should have deserted the diet.

[16] In these circumstances we need say little about the second ground of appeal which arises out of the disallowance by the trial judge of the question put to the witness in cross-examination. In justifying his objection the Advocate depute at the trial submitted that the names and addresses of the other suppliers were irrelevant to the indictment and to the credibility of the witness. In reply counsel for the appellant submitted that the question was relevant to credibility. If the witness gave the names and addresses of other individuals, the defence could check the veracity of that information and, if it proved to be inaccurate, the matter could be placed before the jury in order to assist them in assessing the witness's credibility. If, on the other hand, the witness refused to answer the question, even when ordered to do so, his lack of frankness about other suppliers was a matter which the jury could take into account when considering his evidence that the appellant was one of his suppliers.

[17] The trial judge sustained the objection, as it seemed to him that, if the witness were to answer the question, it would not be competent for the defence to lead evidence to contradict his answer. Whether other individuals had been involved in drug dealing at other addresses was a collateral issue. It followed that the question was objectionable and that the witness should not be required to answer it. The fact that the witness had indicated reluctance to answer the question unless compelled to do so could be a matter of comment by the defence.

[18] Mr. Jackson emphasised that in putting the question to the witness counsel for the appellant had been concerned solely with the credibility of the witness. At the time the appellant was still facing a drugs charge, and the question was connected to that. It was not uncommon for witnesses to be asked questions by the prosecutor and their answers contradicted by other evidence. Mr. Jackson made it clear that he did not accept that it would have been incompetent for the defence to elicit contrary evidence in order to demonstrate that the evidence of the witness was not credible or reliable. There was no question of the leading of witnesses other than those who were already on the Crown list. Since the trial judge had sustained the objection to the question it was impossible to know how the witness would have responded. If he had declined to answer when directed to do so, that would have been even more significant than mere reluctance to answer. The trial judge stopped counsel pursuing a legitimate line of questions. It would have been for counsel to see how far matters could usefully be pursued.

[19] How far matters of fact which lie outside the scope of the res gestae can competently be pursued is perhaps a matter of degree, depending on the relationship between the subject-matter of the questions and what is in issue at the trial. There is old authority for the view that it is not, as a rule, competent to bring evidence to contradict a witness regarding matters relating to his former life and outside the res gestae (Reid and Others (1861) 4 Irv. 124). In the present case there is force in the submissions made by Mr. Jackson that the trial judge wrongly disallowed the question put by counsel for the appellant. However, we do not require to reach a concluded view on that matter since, as we have already indicated, there is another ground on which we consider that the appeal against the appellant's conviction is well-founded.

[20] It was common ground that the two charges of which the appellant was found guilty stood or fell together. We will accordingly allow the appeal and quash the appellant's conviction in respect of both of the charges.

[21] The Advocate depute indicated it was his intention to move the court to authorise a fresh prosecution. While Mr. Jackson indicated that it was unlikely that he would be able to resist that motion, we will give the defence an opportunity to consider the position and, if so advised, to present argument against the motion.