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McKenna v. Her Majesty's Advocate, [2003] ScotHC 29 (09 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord MacLean

Lord Hamilton

Appeal No. C78/00

OPINION OF THE COURT

delivered by LORD MacLEAN

APPEAL AGAINST CONVICTION

MICHAEL McKENNA

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Di Rollo, Q.C., Davis; McCourts

Respondent: J. Johnston, A.D.; Crown Agent

9 May 2003

[1] On 22 January 2000 the appellant was convicted at the High Court sitting at Glasgow by a majority of the jury on a charge that on 21 June 1999 at 9 Waddell Court, Kilmarnock, he assaulted Robert Cox Halliday residing there, repeatedly struck him on the head with an axe, and murdered him. He was sentenced to life imprisonment.

The evidence
[2] The evidence against the appellant came from a number of sources. At the

time when the victim was murdered the appellant was in the company of one Colin Copeland who died on 6 August 1999. Following the murder, Copeland contacted the police by telephone later on 21 June 1999, to whom he gave a full statement. He was then interviewed twice on tape on the same day. The statement and transcripts of the interviews were lodged as productions and most of their contents were led in evidence before the jury without objection. In the statement and the interviews Copeland, who asserted that he was an eyewitness of the assault, incriminated the appellant who, according to Copeland, admitted to him that he had murdered Halliday. Before the trial but after Copeland's death the appellant lodged a special defence incriminating Copeland as the person responsible for the murder. When the appellant was interviewed by the police he did not say that Copeland had committed the murder.

[3] Mrs Brenda Little gave evidence that the appellant and Copeland called at her house about 1.30 a.m. on 21 June 1999 and that the appellant admitted that he had murdered the deceased Halliday. From her house the pair made their way to the house of John McKenna, the appellant's brother. He gave evidence that the appellant said that he had assaulted the deceased with an axe and that he could not get the axe freed from the deceased's head. The appellant asked his brother for a change of clothes and proceeded to burn his T-shirt on the fire. He cut his jeans up and also threw them onto the fire. John McKenna's partner, Caroline Devlin, also gave evidence that the appellant had said to her between 5.30 and 6.00 a.m. on the same morning that he had "done in" the deceased and made a movement to show her how he had done it. The appellant later on the same day admitted to a neighbour, Frank Baxter, that he had hit the deceased over the head with an axe, that he had difficulty in pulling it out of the deceased's head, and that the deceased had made gurgling noises. Baxter gave evidence in court to that effect.

[4] When the police visited the deceased's flat they found body of the deceased face down on the floor. An axe was embedded in the lower part of his head. On pathological examination seven incised wounds were found to the base of the head and neck, all consistent with the use of an axe. Forensic examination of the locus revealed footwear marks in blood on the floor of the hallway, the bedroom and the bathroom. These marks matched the pattern of the training shoes recovered from the appellant. On these shoes was found extensive blood staining. The blood was found to be of the same group as the deceased's. Only 2% of the population have this blood group. It could not have come from the appellant. There was no forensic evidence linking Copeland with the murder. The only evidence incriminating Copeland came from the appellant and also a witness, Clinton Barclay, who gave evidence that a few days after the murder Copeland admitted that he had done someone in and that he needed to get away.

[5] In the course of his own evidence, the appellant admitted that he had told Brenda Little and John McKenna that he had murdered the deceased, and he accepted that he might also have admitted that to Caroline Devlin and Frank Baxter. He explained, however, that he had a habit of boasting about things he had not done. He also gave an explanation how his footprints were in blood in the house, how his shoes had the deceased's blood on them, and why, believing there to have been blood on his own clothes, he had burnt them at his brother's house. Copeland, he said, had taken his shoes off before assaulting the deceased.

[6] So the evidence incriminating the accused came from (1) a statement and interviews given by Copeland on the day of the murder, (2) four lay witnesses who spoke to admissions made to them by the appellant, (3) forensic scientific evidence relating to the blood found on the appellant's shoes and blood stained footprints found in the deceased's flat and (4) the appellant's acceptance of what he had said or might have said about his responsibility for the murder, subject to his explanation for saying that.

The previous history of the case

[7] The appellant was originally indicted for a trial sitting on 11 October 1999. On 5 October 1999 the Lord Advocate gave notice of his intention to apply to have evidence of the statement given by Copeland and the taped transcripts of his two interviews admitted at the appellant's trial in terms of section 259(1) and (2)(a) of the Criminal Procedure (Scotland) Act 1995. In response, the appellant lodged two minutes of notice. In the first minute the appellant contended that the Lord Advocate's actions in serving the section 259 notice infringed the appellant's right to a fair trial and therefore were actions incompatible with his rights under Article 6(1) and 6(3)(d) of the European Convention on Human Rights, in terms of section 57(2) of the Scotland Act 1998 and section 1 of the Human Rights Act 1998. In the other minute the appellant sought a ruling that the proposed leading of evidence relating to the statements of Copeland would be oppressive. Lord Caplan refused the application and granted leave to appeal which the appellant duly did.

[8] Before the Appeal Court (Lord Justice General (Rodger) and Lords Sutherland and Penrose ) it was explained that the parties anticipated that there might be evidence pointing to the appellant's guilt from a number of sources. The court held (2000 SCCR 159) that the only right which Article 6(1) protected was a right to a fair trial and the protection afforded by the Convention was similar to that afforded by the plea of oppression. The court also held that it would only be in extreme circumstances that an accused could contend in advance of trial that the introduction of evidence under section 259 would be so prejudicial to the prospects of a fair trial that the court could determine the issue in advance, and that whether there were obstacles to a fair trial could only be resolved in the light of the proceedings as a whole. It also held that there could be no objection in domestic law to the admission of the evidence the Crown sought to lead, although the trial judge would have to direct the jury about the difference between hearsay and other evidence. It was further held that the court had an obligation to ensure that the trial would be fair in respect of Convention rights and this extended to hearing and ruling on objections to the admission of evidence and giving directions as to the use of evidence. There was no fundamental objection under the Convention to the use of hearsay evidence and Scottish procedure provided safeguards. Requirements for corroboration ensured that Copeland's statements alone would never be sufficient for a conviction. The other sources of evidence suggested that there could be sufficient evidence to support a conviction without reference to Copeland's statements but there could be ample corroboration for the statements if they were viewed as the primary source of evidence against the appellant. It was observed that there was nothing to preclude the appellant from raising a devolution issue in light of events at the trial.

The Grounds of Appeal
[9] The hearsay evidence in Copeland's statement assumed a dominant position at the trial. It was led first at the trial after the evidence given by a scenes of crime officer. Even the presiding judge made reference to the Crown obviously relying "very much" on that evidence. It was to be inferred from the fact that the jury, in the course of their deliberations, wished to see transcripts of these statements, that they, too, considered that they were of paramount importance. Moreover, the trial judge gave a lengthy explanation to the jury of the reasons why they could not see them. These statements, therefore, had such a decisive role in the appellant's conviction that he was denied a fair trial within the meaning of Article 6 of the European Convention on Human Rights. Accordingly, a miscarriage of justice had resulted.

[10] The trial judge failed to direct the jury that they should not convict the appellant if such a conviction were mainly or decisively based on the unchallengeable hearsay evidence contained in Copeland's statements. He failed to direct the jury in relation to the safeguards which the Appeal Court in the earlier hearing had indicated would be called for if such evidence was admitted. He misdirected the jury when giving directions about the appellant's notice of incrimination and Copeland's inability to attend court to challenge the appellant's evidence. Each misdirection amounted to a miscarriage of justice.

[11] The trial judge's comments to the jury on the appellant's incrimination of Copeland disclosed a degree of disapproval and scepticism which was likely to have adversely influenced the jury's considerations of the incrimination, and so a further miscarriage of justice resulted. In the result, this last ground of appeal was not argued.

Devolution Minute

[12] Although it was not done at the trial, a devolution minute was lodged on 3 December 2002 in advance of the appeal hearing. It cross-refers to the note of appeal and seeks to re-emphasise what is referred to as the centrality to the Crown case of the hearsay evidence contained in Copeland's statements. It maintains that the use made by the Crown of those statements constituted a breach of the appellant's Convention right to a fair trial and that, accordingly, the Crown's support of the conviction in the appeal proceedings was also an act in contravention of the appellant's Convention right.

The Submissions and Discussion

[13] Counsel submitted that section 259 did not provide any mechanism to prevent evidence being admitted on the ground that to do so would or might contravene Article 6 of the European Convention on Human Rights. Before the introduction of the section it was probable that Copeland's statements would not have been admissible because he had a reason to lie. Reference was made to the Lauderdale Peerage case (1885) 10 App. Cas. 692 and to the speech of Lord Watson at pages 706-708. In Irving v HMA JC 28 a statement (but not a precognition) from an alleged rape victim who had died before the trial, was held to be admissible. But that, it was said, was the statement of a complainer and not someone, like Copeland, who had an interest to say what he did. In any event, the court had discretion under section 259 not to allow such statements to be admitted on the principle that the court has always had a right not to admit such evidence if an unfair trial was to result.

[14] In our opinion, following what we have said in GDN v HMA, the court does not have the discretion contended for in terms of section 259. So long as the conditions set out in the section are satisfied, the court is obliged to admit the statements, unless the court is satisfied that to do so would render the appellant's trial unfair and thus contravene his rights in terms of Article 6 of the Convention. The remaining submissions made by counsel must, therefore, be considered against that background and with that understanding.

[15] It was said that Copeland's statements played a central role in the conviction of the appellant. The trial judge himself said in his charge that the Crown relied on them very much (see page 23 of the charge). The jury asked to see the statements for themselves while considering their verdict. Irrespective of other evidence Copeland was the main witness for the Crown. Yet the defence, it was said, had no opportunity to cross-examine him. If the appellant's conviction was "based to a decisive extent" on these statements, then it could be said that the appellant did not have a fair trial (Kostovski v Netherlands) 1959 (12 EHRR 434 paras 43-45). In light of the court's observations in HMA v Bain 2001 SCCR 461 at paragraph 31, Copeland's statements could be said to be the most significant evidence against the appellant. Not having been tested, they should not have been admitted.

[16] There is no doubt, in our opinion, that Copeland's statements constituted important evidence from the Crown's point of view. Copeland, after all, was present within the house in which the deceased was murdered. As counsel said, one or other of the appellant and Copeland committed the murder. But it cannot be said in our view that the appellant's conviction was based to a decisive extent upon the statements or that they played a central role in that conviction. There were, as we have already set out in this opinion, the admissions which the appellant made shortly after the murder to four separate witnesses, to two of whom he accepted he had admitted murdering the deceased. In addition, there was the forensic evidence from which the jury were entitled to infer that the appellant was close to the bleeding body of the deceased, together with the fact that the appellant destroyed the outer clothing he had been wearing that night. It cannot be assumed from the request the jury made to see Copeland's statements that they considered them to be of critical importance in their deliberations. They may have wished to go through the familiar and simple exercise of reminding themselves of what Copeland had said, knowing that it had been committed to writing.

[17] The remaining submissions by counsel were concerned with directions which, it was submitted, the trial judge failed to give. He ought to have directed the jury that they must not base their decision to convict the appellant on Copeland's statements: that, in other words, they should not rely upon them as the main evidence. We consider that such a direction would have been wrong. It is not for the trial judge to indicate what weight should be placed on particular parts of the evidence. That is the jury's function. What the trial judge said in his charge on this matter is:

"But, when you're considering what Colin Copeland said happened, remember this: he was of course not on oath when he gave those statements, he was not cross examined by anyone representing the accused and, of course, you did not see or hear him saying what he said. So, you can't assess his demeanour in the same way as you would normally be able to with a witness. So bear these points in mind but, subject to that, what Colin Copeland told the police happened is available for your consideration, in deciding what is proved to have happened." (24C-E).

That, in our opinion, adequately and satisfactorily directs the jury how to approach Copeland's evidence as disclosed in his statements.

[18] It was also said that the Judge ought to have directed the jury that because of Copeland's self interest they should view Copeland's evidence with suspicion. The Judge, however, points out in his report that, if that were a legitimate direction to give, the problem he faced was giving an equivalent direction with regard to the appellant's evidence of incrimination of Copeland. We agree that the judge did indeed face this dilemma and the decision he reached on it is not to be faulted.

[19] The trial judge is also criticised for not giving effect to what the Appeal Court in the earlier hearing had considered might be necessary by way of directions. Giving the Opinion of the Court Lord Penrose said:

"It may be that the trial judge would require to give very particular directions on the need to use caution in considering the statements if indeed the preponderance of the evidence pointed to the perpetrator as necessarily being one or other of the appellant and Mr Copeland". (2000 SCCR 158 at 174).

The trial judge, however, tells us that he had regard to the way the case was conducted and presented to the jury by the parties. He had to consider, in light of all the evidence which was led and which was available for the jury, which additional directions he required to give. We do not accept that he required to give the additional directions desiderated, given the nature and extent of the evidence which was led and the way in which the case was generally conducted.

Disposal
[20] We will therefore refuse the appeal. Counsel invited us to refuse the devolution issue if we were to refuse the appeal, and that is what we will also do.