Scottish High Court of Justiciary Decisons

Martin v. Her Majesty's Advocate [2002] ScotHC 346 (7th February, 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Cowie Lord Caplan	Appeal No: C644/98 OPINION OF THE COURT delivered by LORD KIRKWOOD in NOTE OF APPEAL AGAINST CONVICTION by CRAIG INNESS MARTIN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Duguid, Q.C., S. Hughes; Gilfedder McInnes

Respondent: Docherty, Q.C., A.D.; Crown Agent

7 February 2002

On 9 October 1998 at the High Court at Edinburgh the appellant and his co-accused, David Fulton, were both convicted unanimously of the murder of William John Nicol Martin (hereinafter referred to as "the deceased") on 9 June 1998. The deceased was 16 years of age and the murder was committed in a flat which was occupied by the appellant and his then girl-friend, Angela Brogan. The appellant and Fulton were each sentenced to life imprisonment.

We are informed by the trial judge that the Crown led evidence that the murder was committed when the deceased, with his hands tied behind his back, was seized hold of, held down by bodily pressure, had his neck compressed by the two accused in turn, was repeatedly kicked on the body, stamped on the body, strangled by the compression on his neck, had a plastic bag placed over his head, with the bag being tightened and, less significantly, was repeatedly struck on the head with a roll of plastic bags. It was clear from the evidence that, while the deceased's hands had been tied behind his back, this had occurred with his agreement, it being established that he liked to demonstrate his ability to free himself from being tied up, using escapology techniques, aided by the fact that he was apparently double-jointed. The appellant's girl-friend, Angela Brogan, who was 18 years of age, gave evidence for the Crown at the trial in the course of which she implicated both the appellant and Fulton in active involvement in what had happened. The appellant and Fulton each blamed the other for carrying out the murder and each gave evidence at the trial to the effect that the other was solely responsible. Evidence was led by the Crown from witnesses to statements made by each of the two accused tending to suggest that they were planning to kill the deceased on the day in question. Understandably, such statements were not taken seriously by the witnesses at the time. The appellant and Fulton had been resident, along with the deceased, in the Bethany Hostel and there was evidence to indicate that it was thought that the deceased had "grassed" on the appellant to the staff of the hostel in respect that he had been taking drink and drugs into the hostel. There was additionally the suggestion of an avowed dislike of the deceased on the part of Fulton, but no other information emerged from the evidence at the trial to suggest any other motive for the killing. At the time that the deceased's hands were tied, he was visiting the flat socially and there was every reason to suppose that he believed that he was in friendly company and, in agreeing to have his hands tied behind his back, he had no apprehension whatsoever that he was going to be assaulted.

When the appeal was argued before us we were informed of the evidence which the Crown had led at the trial in relation to the alleged involvement of the appellant in the death of the deceased. Angela Brogan was the principal Crown witness against both of the accused. She said that the deceased was lying on the floor with his hands tied behind his back. Fulton put his arm round his throat and used the other hand to exert pressure, and the appellant was holding the deceased's legs in a leg lock so that the deceased could not move them. The face of the deceased was going red and purple. The two accused then swapped over so that the appellant was at the head of the deceased and Fulton was at his legs. The appellant put his hands on the deceased's neck and compressed it, Fulton holding the deceased's legs. She said that she remembered Fulton standing on the deceased's neck when the appellant was holding his legs. The two accused were laughing and joking about it. Fulton went to the kitchen to get black bags and the appellant put a black bag over the deceased's head. Both accused were hitting the deceased on the face with a bag. In cross-examination by counsel for the appellant, Angela Brogan admitted that on 10 June she had given a statement to the police which had not implicated the appellant at all, but was to the effect that Fulton had been responsible for the death of the deceased. It was not until 25 June that she told the police that the appellant had also been involved in the killing. She said that she had seen it all and the appellant had been just as much to blame as Fulton.

There was evidence from a witness, Julie Sutherland, who said that earlier on the day of the killing she had met the appellant and Fulton who were looking for the deceased. Fulton had said that he was going to kill the deceased. The appellant had made a remark to the effect that he was "going to jump about his head" or something, and told her that the deceased had "grassed" on him. Another piece of evidence against the appellant related to a saliva stain taken from a leg of the trousers which he had been wearing on 9 June. There was DNA evidence attributing the saliva to the deceased. After the deceased had been killed his body was covered in black bin bags and initially put into a cupboard, and then moved to a bed. There were two black bags over the deceased's head and there was evidence that the appellant's fingerprints had been found on the inner bag. The cause of death was asphyxiation by compression of the lower neck. There was a fracture of the cricoid cartilage which was described as an unusual injury, which could have been caused by manual pressure or by stamping.

The appellant gave evidence and admitted having been in the flat and that he had held down the legs of the deceased, but said that he had let go of his legs as soon as Fulton had started strangling him. The deceased, who was a self-proclaimed escapologist, had taken pride in being able to escape when he was tied up, and the appellant had held his legs to prevent him from bringing his tied hands under his body and down the length of his legs and thereby getting out of the tied-up position. However, this had been done in fun and he had not been involved in killing the deceased. The appellant had given the same account to the police when he was interviewed on 10 June.

Fulton gave evidence and he stated that the appellant had said to him that they were going to kill the deceased. Fulton had put his arms round the deceased's neck and the appellant had grabbed his legs, telling Fulton to "Kill the bugger". Fulton let go of the deceased and jumped back. The appellant grabbed the deceased by the neck, pushed him onto his back and started to choke him, laughing as he did so. The appellant had pressed as hard as he could at the front of the deceased's neck until he was dead. The appellant had then put a bin bag over the deceased's head.

The appeal was based on certain evidence which was given by a police officer, Detective Sergeant Jones, when he was being cross-examined by counsel for Fulton. The witness gave evidence that on 10 June, the day after the deceased was killed, he had been travelling in a police car with a colleague and Angela Brogan. She had asked "Can you get finger prints from a throat?" and, on being asked why she had asked that question, she put a further question, namely, "If you found Craig's fingerprints on his throat, would you have to lock him up?" D.S. Jones said that what she said had been totally unprompted and had come out of the blue. Angela Brogan had already given evidence, and she had not been asked whether she had asked those questions nor had D.S. Jones been asked about them when he was examined by the advocate depute. It was common ground that counsel for the appellant had objected timeously to the line of evidence on the ground that it was hearsay. We are informed by the trial judge that he allowed the line of evidence to be pursued for the purpose of eliciting the circumstances in which any such question was put, but with the protection for the appellant of a right to further cross-examination by counsel for the appellant, and also the right to recall Angela Brogan if counsel for the appellant wished. In the event, counsel for the appellant did not cross-examine the witness further nor did he seek leave to recall Angela Brogan. In the course of his charge to the jury the trial judge attributed to the appellant the question as to whether fingerprints could be taken from the throat. The relevant parts of the charge were in the following terms:

"What has been said by Counsel about the evidence and, anything I might say, although you'll find I will not be going into the evidence - I may touch upon it - but, in so far as anything said by Counsel, or by me, about the evidence, is concerned, all of that is subject to your recollection of what the evidence was. It's your recollection that matters.

...

Next, I have to say something about hearsay evidence. That is evidence by a witness as to something said by someone other than the accused, against whom you are considering the charge. This is not evidence against that accused. An assertion other than one made by a person while giving oral evidence in the proceedings, that's in evidence in Court, is inadmissible as evidence of any fact...(two words indistinct).

There have been many examples of hearsay evidence in this case. One that was I think referred to at least indirectly by Mr. Duguid in his submission to you, related to evidence by Detective Sergeant Jones and, again, it's your recollection that matters but, I think this was broadly to the effect that Angela Brogan had said that the first accused, and you'll understand when I refer to the first accused that's Martin, and when I refer to the second accused that's Fulton, that the first accused had asked if fingerprints could be taken from the throat. This is not evidence against the first accused, that he asked Angela Brogan this. There's no evidence by Angela Brogan to that effect and, of course, it's not evidence against the second accused in any way at all.

However, as Mr. Murray pointed out in his submissions to you, the defence for either Accused, they are entitled to found on that evidence, as tending to undermine the evidence of Angela Brogan in the witness box because she did not give evidence to the effect mentioned. This illustrates the point correctly made by Mr. Murray, that evidence as to what a witness said at some earlier stage may be used in assessing the credibility and reliability of the witness's evidence in Court although, for that purpose only, not as evidence of the facts in the earlier statement.

Evidence as to statements allegedly made by the accused, in respect of whom you are considering your verdict, are not covered by the hearsay directions which I have given you. The evidence of such statements may be evidence for or against that accused."

Counsel for the appellant accepted that there had been sufficient evidence before the jury to entitle them to convict the appellant of murder. However, he submitted that there had been a miscarriage of justice in that hearsay evidence had wrongly been admitted, and in his charge to the jury the trial judge had wrongly attributed to the appellant one of the questions which Angela Brogan had put to D.S. Jones in the police car. Counsel submitted that the evidence of Angela Brogan had been crucial to the Crown case, and her credibility had been put in issue. She had been the appellant's girl-friend at the time. When interviewed by the police on 10 June she had said that Fulton had killed the deceased and she had not implicated the appellant at all. It was only on 25 June, over two weeks later, that she had stated for the first time that he had been involved with Fulton in the killing of the deceased. At the trial the appellant's position was that she was a dishonest witness. She had been examined by the advocate depute and cross-examined by both defence counsel, but it had never been suggested to her that she had put these questions to D.S. Jones in the course of the journey in the police car. This matter had not been raised with D.S. Jones by the advocate depute and it was only when Mr. Murray, counsel for Fulton, was cross-examining him that he was asked what Angela Brogan had said to him. It was accepted that timeous objection had been taken to the line of evidence on the ground that it was hearsay evidence and inadmissible, it not having been put to Angela Brogan. The trial judge had wrongly allowed the evidence to be considered by the jury. In his speech to the jury counsel for Fulton had sought to found on the questions put by Angela Brogan to the police officer as indicating, on the day after the killing, knowledge of contact between the appellant and the deceased's throat. That same day Angela Brogan had told the police that the appellant had not been implicated in the death of the deceased. The evidence as to what Angela Brogan had said to D.S. Jones had been highly prejudicial to the appellant's case as the appellant had sought to persuade the jury that her original statement to the police on 10 June, to the effect that Fulton had killed the deceased, had been the truth. Counsel submitted that if counsel for Fulton had wished to elicit what Angela Brogan was alleged to have said to D.S. Jones, that should have been put to her when she had given evidence earlier. If she had admitted it, there would have been no problem, but if she had denied asking the questions attributed to her, then they could not have been put to D.S. Jones that she had asked those questions. In the circumstances it had been incompetent for counsel for Fulton to raise for the first time with D.S. Jones what Angela Brogan had allegedly asked him in the police car. Counsel referred to Paterson v. H.M. Advocate 1997 S.C.C.R. 707 and Ogilvie v. H.M. Advocate 1999 S.L.T. 1068. Counsel went on to submit that the trial judge's error in admitting the hearsay evidence had been compounded by the fact that in his charge to the jury he had wrongly attributed to the appellant the first question which had allegedly been asked by Angela Brogan. Counsel submitted that the directions given by the trial judge on this matter had been confusing. While the trial judge had told the jury that the evidence of the question could be used to undermine Angela Brogan's credibility, it could not have had that effect as she had never been asked about it. It was not possible to say that the jury would have returned the same verdict if the inadmissible evidence had not been before them and there had been no misdirection. In the circumstances there had been a miscarriage of justice and the conviction should be quashed.

The advocate depute accepted at the outset that the hearsay evidence given by D.S. Jones as to questions asked by Angela Brogan in the police car had been inadmissible, and that the objection taken by counsel for the appellant should have been sustained. He also accepted that the trial judge had erred, in his charge, in stating that it was the appellant who had asked Angela Brogan the question as to whether fingerprints could be taken from the throat. However, he submitted that these errors had not been such as to give rise to a miscarriage of justice. So far as the factual error made by the trial judge in his charge was concerned, he had told the jury that, so far as the evidence was concerned, it was their recollection of the evidence which mattered and that observation had been repeated by the trial judge when he turned to the hearsay evidence given by D.S. Jones. Where a judge in his charge gives an inaccurate account of evidence, there could be cases where there was serious prejudice to the accused and the misdirection could not be cured by a warning that it was the jury's recollection of the evidence which mattered, but this was not such a case. The charge must be read as a whole. In this case the jury had heard the evidence of D.S. Jones and had been addressed by counsel who had properly presented the evidence. In particular, counsel for Fulton had correctly referred to the questions as having been posed by Angela Brogan to D.S. Jones. In the circumstances the warning given by the trial judge, to the effect that it was the jury's recollection of the evidence which mattered, had been sufficient. So far as the admission of the hearsay evidence was concerned, the advocate depute submitted that, in the context of the evidence led at the trial, it had not been material and important evidence (Cairns v. H.M. Advocate 1999 S.C.C.R. 552). While it was accepted that Angela Brogan's evidence had been vital so far as the Crown case was concerned, the hearsay evidence had not been material. Reference was made to McAvoy v. H.M. Advocate 1982 S.C.C.R. 263, Hunter v. H.M. Advocate 1984 S.C.C.R. 306, Binks v. H.M. Advocate 1984 S.C.C.R. 335, McCougan v. H.M. Advocate 1991 S.C.C.R. 49, Murray v. H.M. Advocate 2001 S.C.C.R. 114, Stirland v. Director of Public Prosecutions [1944] A.C. 315 and R. v. Pendleton, House of Lords, 13 December 2001, unreported. In the present case the evidence against the appellant had been overwhelming and the jury's verdict had been unanimous. Further, the trial judge had directed the jury that that particular piece of hearsay evidence was not evidence against the appellant and that the defence was only entitled to found on it as evidence tending to undermine the evidence of Angela Brogan, as she had not given evidence about the alleged question. The hearsay evidence had been used by counsel for Fulton in an attempt to undermine her credibility, the witness having originally incriminated Fulton but not the appellant. However, it had not, in fact, undermined her credibility and she had said that both the appellant and Fulton had planned and carried out the murder of the deceased. In the particular circumstances of this case the errors which had been made had not been of such significance or materiality as to give rise to a miscarriage of justice.

The issue in this appeal is whether the admission of the hearsay evidence, and the factual misdirection in relation to certain of that evidence, either singly or taken together, resulted in a miscarriage of justice, and counsel for the appellant accepted that it was for the appellant to show that there had been a miscarriage of justice. So far as the admission of the hearsay evidence was concerned, it is common ground that the evidence was inadmissible and that the objection to the line of evidence should have been sustained. However, the court requires to consider the materiality of the evidence which was wrongly admitted and that must be done in the context of the evidence as a whole. The hearsay evidence was to the effect that Angela Brogan, who was admittedly an important Crown witness, had asked D.S. Jones two questions, the first being whether it was possible to get fingerprints from a throat and the second being "If you found Craig's fingerprints on his throat, would you have to lock him up?". The trial judge pointed out to the jury that there had been no evidence from Angela Brogan that she had put questions to D.S. Jones in the police car, and he directed the jury that the hearsay evidence was not evidence against the appellant. He stated that the defence for either accused was entitled to found on the evidence as tending to undermine the evidence of Angela Brogan but not as evidence of the facts contained in the questions attributed to her. Angela Brogan had given evidence at the trial to the effect that both accused had been involved in the killing, and that the appellant had compressed the deceased's neck with his hands, and the questions allegedly put by her to D.S. Jones were not inconsistent with that evidence. The high point of the argument presented by counsel for the appellant to the effect that the hearsay evidence had been prejudicial so far as the appellant was concerned was that, if Angela Brogan had asked the questions attributed to her, they indicated that on 10 June she was implying that there had been contact between the appellant's hands and the deceased's throat, although that same day she had told the police that only Fulton had been responsible for the death of the deceased. This, said counsel for the appellant, had had an adverse effect on his position at the trial, which was that her original police statement, in which she did not implicate the appellant, had been the truth.

We have considered all the submissions made to us but, having regard to the nature of the hearsay evidence in the context of the trial as a whole, the fact that the trial judge reminded the jury that the questions attributed to Angela Brogan had not been put to her and that the hearsay evidence was not evidence against the appellant, the strength of the case against the appellant and the fact that the verdict was a unanimous one, we have not been persuaded that the wrongful admission of this evidence was of such materiality as to justify the conclusion that there was a miscarriage of justice.

Counsel for the appellant also founded on the admitted misdirection by the trial judge in his charge in respect that he misrepresented certain of the hearsay evidence by stating that the appellant had asked Angela Brogan if fingerprints could be taken from the throat. Counsel submitted that in the circumstances of the present case the general directions given by the trial judge, to the effect that it was the jury's recollection of the evidence which mattered, had not been sufficient to remove the prejudice caused by the misdirection. While the trial judge admittedly made a factual error in relation to the evidence as to the first question allegedly posed by Angela Brogan in the police car, he again reminded the jury, when referring to D.S. Jones's evidence, that it was their recollection which mattered. Further, it was not suggested that in any of the closing speeches a similar error had been made. Indeed, Mr. Murray, counsel for Fulton, had told the jury that it was Angela Brogan who had asked D.S. Jones the two questions. In the circumstances we do not consider that the factual error by the trial judge has been shown to have given rise to a miscarriage of justice.

On the whole matter, while the trial judge wrongly admitted hearsay evidence, and mis-stated what certain of that evidence had been, we are not satisfied that these two matters, either singly or taken together, were so material, in the context of the evidence led at the trial, as to have resulted in a miscarriage of justice. The appeal is therefore refused.