Scottish High Court of Justiciary Decisons

Hughes v. Her Majesty's Advocate [2002] ScotHC 93 (16 July 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Marnoch Lord Hamilton Lord McCluskey	Appeal No: C35/99 OPINION OF THE COURT delivered by LORD MARNOCH in NOTE OF APPEAL AGAINST CONVICTION by JOHN HUGHES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Jackson, Q.C., Shead; McCusker McElroy & Co.

Respondent: R. McCreadie, A.D.; Crown Agent

16 July 2002

1. In this case the appellant was convicted of the charge that

"on 5 August 1998 at flat 13/3, 99 Prospecthill Circus, Glasgow (he) did assault David Shanks, residing there and repeatedly strike him on the body with knives or similar instruments, and did murder him".

2. In the Note of Appeal two grounds of appeal were tabled but the second was abandoned, leaving only the following ground:

"The trial judge erred in repelling the submission of no case to answer. While it is accepted that there was evidence which would have entitled the jury to hold that the appellant had been in the deceased's flat there was insufficient evidence to establish that the appellant had inflicted the fatal injuries".

3. The trial judge has supplied us with a very careful and full Report and Mr. Jackson, Q.C., for the appellant, took no issue with the accuracy of its contents. It appears from that Report that no evidence was led on behalf of the appellant and that the evidence led for the Crown was wholly circumstantial in character. Nonetheless, in presenting the appeal Mr. Jackson helpfully listed a number of matters which he either could not or did not dispute. These were, first, that the appellant and deceased had met in Glasgow town centre in circumstances where the deceased would have been expecting a homosexual relationship, although the evidence was that the appellant was not himself homosexual; second, that they returned to the deceased's flat around 12.30 a.m. on 5 August 1998; third, that the appellant remained in the deceased's flat for upwards of one and a half hours; fourth, that the jury was entitled to infer that the deceased, having entered his flat with the appellant, never again left it; and, lastly, that the jury was also entitled to infer that the deceased was killed before removing any of the clothing which he had been wearing in the town centre, a circumstance which pointed to the time of death being "in the comparatively early hours of the morning of 5 August". All that said, Mr. Jackson submitted that it was plainly not enough that the appellant had been the last person seen with the deceased and the real question was whether certain additional evidence founded on by the Crown at the trial was sufficiently sinister to warrant conviction.
4. That additional evidence together with the advocate depute's submissions on it are conveniently summarised by the trial judge at p. 25 of his Report as follows:

"Two hours after entering the flat the appellant was seen to leave. He did not leave by the normal means, namely the lift, but descended thirteen storeys by the stairs. The reasonable inference was that he was seeking to avoid being picked up on the lift camera. The door at the foot of the stairwell was sealed. The appellant then crossed to the door on the other side of the foyer, but there was no exit door there. He then walked diagonally across the foyer, with his face lowered and turned away from the camera. The jury could reasonably infer that he was trying to get out of the building without being caught on camera, and was attempting to conceal his identity. He subsequently returned to the hostel at about 6.00am and by shortly after 7.00am had left, carrying a large bag. From the evidence of the check on his room, it was clear that he had effectively emptied his room. (The Advocate Depute did not mention in his submission, the evidence that the appellant had also left a number of bags in the toilets in the hostel, which the jury had seen on the video tape). Later that day he returned to the hostel, and during the afternoon his behaviour was noted to be agitated, which was unusual and out of character. The following day he left the hostel, having said nothing to the staff other than to indicate to one member of staff that he was not leaving. His friend Hugh McDonald had expected him still to be there."

5. According to Mr. Jackson that additional evidence, although pointing the finger of suspicion at the appellant, was insufficient to carry the "weight" of conviction. In our opinion, however, when that evidence is taken along with all the rest, it is, indeed, enough to warrant conviction. The jury was, of course, able to view a number of video tapes including a compilation tape (Label 11), but even the still photographs from the tape sequence (Production 11) show graphically what is described regarding the appellant's departure from the block of flats. Indeed, in addition to what is described above, it appears from that production and other parts of the trial judge's Report that before entering the foyer the appellant could be seen looking into the foyer through a glass partition. It should also be noted that the appellant had resided in the hostel for over a month prior to his unheralded departure. But, over and above all this, it has to be remembered that the deceased's unaltered clothing (which included a jacket and tie) suggests strongly that he was killed not long after entering his flat at 12.30 a.m. If the appellant did not kill him during the ensuing one and a half hours then the only alternative would be that, having shown the appellant out of his flat some time after 2 a.m., the deceased then admitted someone totally different in the very early hours of the morning - and this despite the evidence of his sister and her husband to the effect that the deceased did not know his neighbours. In all the circumstances, therefore, we are quite satisfied that the trial judge quite properly repelled the submission of no case to answer.
6. It follows that this appeal must be dismissed. Before parting with the case, however, we note for the record that two further adminicles of evidence were noted by the trial judge in his Report albeit, it appears, no reliance was placed on them by the Crown at the trial. These were that certain of the photographs contained in Production 11 show the appellant as having "something shiny" (as the trial judge describes it) in his right hand as he heads towards the deceased's flat and that when he is seen leaving the block of flats the appellant is carrying a plastic bag. As to the former, Mr. Jackson submitted that in the absence of evidence it would be sheer speculation as to what, if anything, the appellant was carrying and the advocate depute before us did not demur to that; and, as to the latter, both Mr. Jackson and the advocate depute seemed to be agreed that the evidence in question was entirely neutral. In these circumstances we have thought it right to disregard these adminicles of evidence in reaching our decision and, for our part, to make no observations upon them.