APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
LordCameron of Lochbroom
Appeal No: XC122/02
OPINION OF THE COURT
delivered by LORD HAMILTON
APPEAL AGAINST CONVICTION
HER MAJESTY'S ADVOCATE
Appellant: Findlay, Q.C.; Drummond Miller
Respondent:Anthony, A.D.; Crown Agent
15 June 2004 After trial in May 2001 the appellant was convicted of having, on 26 December 1999 while acting along with Thomas McGarrigle, murdered George Waugh. He was also convicted of having earlier that evening assaulted Paula McDowall. In respect of the murder he was sentenced to life imprisonment as from 12 January 2001. In respect of the earlier assault he was sentenced to a concurrent term of 6 months imprisonment. Against his conviction of these crimes he appeals to this court on a (now restricted) basis concerned with the trial judge's directions to the jury in relation to certain hearsay evidence adduced by the Crown. Although in form the appeal is taken against conviction on both charges, counsel unsurprisingly concentrated on the conviction for murder.  At about 4.40 a.m. on 26 December 1999 a taxi driver came upon George Waugh (then 21 years of age) lying in a very severely injured condition on the pavement of a cul-de-sac in Rutherglen. He reported what he had found, though no action appears to have been taken in response to that report. Later the same morning Waugh was found dead where the taxi driver had seen him lying.  Early in January 2000 a petition warrant was issued for the appellant in respect of this death but he was not traced at that time. McGarrigle was traced and arrested. McGarrigle stood trial and in August 2000 he was convicted of the murder of George Waugh. In January 2001 the appellant surrendered himself to the police. By the time of the appellant's trial a potential witness, Naseen Faisal Haq, had died. It is with respect to statements made by him to the police and adduced at the appellant's trial that this appeal is concerned.  The evidence at the appellant's trial disclosed that, in the early hours of 26 December, the appellant and two friends, Haq and Cassidy, met two younger men, George Waugh and Raymond Blair, at the foot of 9 Mitchelhill Road, a multi-storey tower block in Castlemilk, Glasgow. Waugh and Blair mentioned that there was a party upstairs, in the flat of Louise McKee, but that they had been unable to gain entry. The appellant knew McKee's boyfriend, Ian McBride, and led the others up to the flat. They were admitted. They spent some hours there together. During that period there was one minor incident of violence, when Blair refused to clean up some drink that he had spilt, and the appellant punched or slapped him. At about 3.21 a.m. Waugh and Blair left together. Sometime afterwards, the appellant discovered that his mobile telephone was missing. He became angry and violent, causing disturbance in the flat and assaulting a young woman present, Paula McDowall, in a very unpleasant manner. He shook her about, shouting at her to tell him the boy's name, and holding a potato peeler to the corner of her eye, telling her that he would take her eye out, the same as he was going to do to the boy, unless she told him the boy's name. According to Paula McDowall's evidence, the appellant said that he wanted his phone back because there were numbers on it that he did not anyone to see. In the meantime it had occurred to Haq to telephone the mobile phone, using a telephone in the flat. He did that and spoke to the person in possession of the phone. He then passed the telephone in the flat to the appellant, who also spoke to the person on the phone, saying that he needed the phone back and arranging to meet the person at the bottom of the flats. CCTV footage showed Waugh using the mobile phone at 3.50 a.m., and then passing it to Blair, who also used it. After this telephone call, the appellant searched the flat for a knife, saying that he needed a "blade". Miss McKee had no knives in the flat other than butter knives. In the absence of a knife, the appellant took a potato peeler and a shovel and left the flat, followed by Haq and Cassidy. He said something along the lines, "I'm going doon to see them, they are getting it". Before entering the lift, where a CCTV camera was situated, the appellant concealed the potato peeler and the shovel, the shovel being hidden under his jacket. He then went down in the lift with Haq and Cassidy. A soon as they reached the ground floor, the appellant went rapidly towards a roadside barrier near the next multi-storey block, Block 7, where Waugh and Blair, as could be seen on footage shot by external CCTV cameras and played at the trial, had been shortly beforehand. From the footage, it looked as though Blair had gone along a path leading downhill to the main road at the foot of the flats, Ardencraig Road. It looked as though Waugh had headed along the barrier towards Block 7. The appellant, in any event, made rapidly for the barrier. At about the same time (3.55 a.m.), Thomas McGarrigle was with his girlfriend, Helen Lamont, at McGarrigle's car, at the foot of Block 7. They heard a noise in the vicinity of the barrier, and McGarrigle went over. From the CCTV footage, it appeared that McGarrigle and the appellant were both by the barrier, and that the appellant then went over the barrier and down the hill, before McGarrigle went back to his car and drove off with Lamont. Louise McKee, watching from the flat where the appellant had come from, said in evidence that there was a confrontation at the barrier, during which the appellant punched or pushed Waugh, and McGarrigle then struck Waugh a blow which sent Waugh rolling down the hill. Louise McKee also said that McGarrigle then drove the car, with Lamont in the front passenger seat, down the hill towards Ardencraig Road, stopping short of the junction. Waugh was, according to her, on the ground near the point where the car stopped. Waugh was then, she said, lifted into the car by McGarrigle, the appellant and Haq, and placed in the back of it. The appellant (and possibly Haq) got into the back of the car, and McGarrigle drove off on to Ardencraig Road. The car was driven off from Block 7 at 3.57 a.m. and presumably reached Ardencraig Road around 4 a.m. or slightly earlier. Another eye-witness, John Terry, saw the car before it turned on to Ardencraig Road and saw the appellant in the back of the car, holding a jacket up to the window, as if to cover it. The car stopped in Ardencraig Road, and the appellant got out of the car to chase Blair through adjacent woods. Haq was also at the car, and was sent away by McGarrigle. His instructions, it seems, were to go back to the flats and telephone the mobile phone, so that the ringing of the phone would enable Blair to be tracked down. According to Haq's statement, after the appellant had got out of the back of the car and gone into the woods, McGarrigle threatened Waugh with a knife, to prevent him from leaving the car. Evidence subsequently given by a forensic pathologist was to the effect that a knife corresponding to Haq's description could have caused the stabbing injuries from which Waugh later died. McGarrigle drove off, with Lamont and Waugh on board, and stopped at another point beside the woods. The appellant was unable to catch Blair, and eventually got back into the car. Helen Lamont was dropped near to the flats shortly before 4.25 a.m. The car then drove off, with the appellant, McGarrigle and Waugh on board, Waugh not being seriously injured at that time.  As earlier narrated, Waugh was discovered at about 4.40 a.m. lying very severely injured in the cul-de-sac in Rutherglen. That cul-de-sac was approximately six minutes drive from the flats at Mitchelhill Road. There was very little blood found in the cul-de-sac, although Waugh's wounds would have bled profusely. The inference accordingly was that he had been attacked elsewhere and then dumped in the cul-de-sac and left there to die. At least three weapons had been involved. His face had been repeatedly slashed with a sharp knife, and a knife had also been used to inflict around 29 stab wounds to the body. The stab wounds had penetrated the liver, the lungs and the diaphragm, and a stab wound which had gone straight through an arm had severed an artery there. There were also numerous blunt injuries to the head and the face, which had been inflicted with a blunt instrument having corners or a rounded or curved configuration. A shovel such as the one which the appellant had taken from the flat was a possible weapon, and more likely than, for example, a hammer. Although the pathologist's evidence was expressed in cautious terms, it appeared from the photographs of the injuries that one, in particular, looked very like the corner of the shovel. There were other lacerations to the face which had been caused, according to the pathologist, by a small cutting instrument with a sharp edge. The injuries were consistent with the point of a potato peeler such as the one which the appellant had taken from the flat. Again, from the photographs, these injuries looked to be of a kind which one might expect to be inflicted by a potato peeler.  The car returned to the flats at about 5.29 a.m. with the appellant and McGarrigle onboard. They were both wearing different clothing from the clothing they had been wearing earlier: they had changed their tops, trousers and shoes. They were now both wearing hooded tops, and they both put their hoods up when they entered the block of flats, within the range of the CCTV cameras. They both kept their faces turned away from the CCTV cameras there. When they later left Block 7, they did so by the back door. A pair of boxer shorts belonging to McGarrigle was subsequently found in McGarrigle's flat in Block 7. They had Waugh's blood on them. McGarrigle's car was found later the same day (26 December) in Easterhouse. It had been burned out.  The Crown case accordingly was that the appellant and McGarrigle had attacked Waugh together between 4.25 and 4.40 a.m. Although the fatal injuries had been inflicted with a knife such as the one which McGarrigle had had in his possession, other injuries had been inflicted using the potato peeler and the shovel which the appellant had had in his possession. Waugh had then been abandoned on a freezing night in a place where no one was likely to discover him in time to ensure medical treatment. The appellant and McGarrigle had then changed their clothing, which would have been bloodstained, before returning to the flat. The car had also been burned out to destroy evidence.  The appellant did not give evidence, and no defence witnesses were led. The defence position was that Waugh had been murdered by McGarrigle alone; and evidence was led by the defence from Crown witnesses to establish that there had been a feud between Waugh and McGarrigle and previous incidents of violence and that McGarrigle had already been convicted of the murder. The approach of the defence was to criticise the thinness of the Crown case, and to invite the jury not to infer from the various circumstances that the appellant had been involved in the fatal attack.  On the first day of the trial, prior to the empanelling of the jury, the Advocate depute tendered several notices, including a notice under section 259 of the Criminal Procedure (Scotland) Act 1995 relating to Crown documentary productions 38 and 39. Production 38 contained a statement taken from Haq by a detective officer at 1315 hours on 3 January 2000, together with an additional statement taken from him by the same officer at 1600 hours on the same date. Production 39 contained a statement taken from Haq by that officer on 4 January 2000.  In the course of the trial objection was taken by the defence to the leading of evidence as to the contents of productions 38 and 39. The objection was initially founded on section 6(1) of the Human Rights Act 1998 but later instead on section 57(1) of the Scotland Act 1998. The trial judge allowed a devolution issue to be raised and heard argument on it. At the conclusion of the argument he refused the defence application to have the evidence of Haq excluded under section 57(2) of the Scotland Act 1998 and repelled counsel's objection to the admission of that evidence. He also made it clear that the decision on the compatibility of the leading of the evidence with the appellant's Convention rights was something which he could assess at that stage only on a provisional basis, since only part of the evidence had been heard and it was impossible to reach a definitive view on some of the issues relevant to the assessment under Article 6. He made it clear that the same point could be raised at a later stage in the trial, although the evidence in question would by then have been heard.  The objection having been repelled, the Advocate depute intimated that he did not wish to lead evidence of the content of production 39. He also accepted that a part of production 38 (which part did not satisfy section 259(1)(b) of the Act) should not be admitted in evidence. Evidence was then led of the terms of the rest of production 38.  Although in his written grounds of appeal the appellant contended that none of the hearsay evidence of Haq should have been admitted at the trial (the trial judge's opinion on that issue being reported at 2001 S.C.C.R. 461), at the hearing of the appeal Mr. Findlay for the appellant departed from that ground. His submission was restricted to a challenge to the directions which the trial judge had in his charge given to the jury in respect of the admitted hearsay evidence. His submission was also confined to a contention based on the domestic law of Scotland, without reference to any matter of Convention rights. In these circumstances the issues before this court are much narrower than those argued before the trial court.  It is, however, necessary to an understanding of these issues to narrate how the hearsay evidence stood qualitatively by the stage at which the trial judge came to give directions to the jury. The admitted part of production 38 was spoken to in evidence by the detective officer. In cross-examination that officer accepted that Haq had at one stage lied in giving the statements contained in production 38 since the additional statement in it was different from the original version. The witness accepted that there were differences between Haq's account in production 38 and the account of Louise McKee in one of her statements, that an account of supposed events in the back of the car parked by the barrier as given by Haq was inconsistent with what was shown in the CCTV evidence and that there were other aspects of Haq's account of events (which included two mutually inconsistent versions) which could not be true. At a later stage in the trial it became evident that at least one other aspect of Haq's account was also inconsistent with CCTV footage shown to the jury.  At the close of the Crown case a submission of no case to answer was made on behalf of the accused. That submission was repelled, the sufficiency of the Crown case not being dependent on any part of Haq's evidence; no appeal is taken against that ruling. At the end of that submission Mr. Findlay submitted that the trial judge should rule that the Crown was not entitled to found to any extent on the evidence contained in Haq's statements. Alternatively, he submitted that the trial judge should in his charge to the jury direct them that they should ignore the whole evidence in these statements; if the court was not prepared to go so far, then the jury should be directed to ignore the parts of the statements which were demonstrably untrue; in any event the clearest warnings should be given in relation to that matter, standing Haq's proven unreliability.  The Advocate depute in his address to the jury made only a few references to Haq's evidence and told them that they would have to be very careful in assessing it. He indicated specific parts of Haq's statements on which the Crown did not seek to rely. He stated that, so far as the Crown was concerned, the important part of Haq's evidence was that he had seen Waugh in the car with blood on his face and had seen McGarrigle produce a knife. In his address to the jury Mr. Findlay likewise focused primarily on other aspects of the evidence but also submitted to them that, at least in so far as Haq's evidence tended to incriminate the accused, it was discredited.  In his charge to the jury the trial judge gave full general directions about the use of hearsay evidence (none of which has been criticised in this appeal) with a particular warning in respect of the credibility and reliability of Haq's evidence. At a later stage, in the context of a summary of the evidence in the case, the trial judge returned to Haq's statements. He explained that these statements should be approached with very great caution and that, for reasons which he explained, Haq had a motive to minimise his own involvement and to put the blame on other people. He reminded them that the video evidence had demonstrated that Haq had in his first version given to the police a completely untruthful account of the accused having assaulted someone in McGarrigle's car at the barrier near Block 7 and that, on that account being queried by the police, Haq had retracted it. In that respect he said:
"So I have to direct you to disregard that evidence, because no reasonable jury could possibly accept it. Put it out of your minds and don't be influenced by it in any way, except in so far as it demonstrates that Haq is a witness who cannot be trusted to tell the truth".
He also reminded the jury that an account which Haq had given in his second version (of the accused and McGarrigle "battering" the deceased when he was on the ground near the barrier by Block 7) was, under reference to the video evidence, demonstrably untrue. In that respect he said -
"So I have to direct you to disregard that evidence also, except again in so far as it demonstrates Haq's unreliability as a witness".
He also directed them to disregard two other features of Haq's statements (concerned with the accused's behaviour in the lift in the block of flats and to the effect that the accused and McGarrigle had returned to Cassidy's flat about 6.45 a.m. with an axe and a gun). He continued -
"When you take into account all these lies and distortions and his motivation to lie, and also his statement that he was in any event under the influence of heroin at the time of these events, you may well feel that you cannot rely on anything Haq told the police, and it should be altogether put to one side. That, however, is a matter for you to decide.
There are, for example, other parts of Haq's statement, for example, about events in the flat, which you may consider correspond with other evidence, and can therefore be accepted, or whose credibility and reliability you may feel able to assess by seeing how it fits in with other evidence. So I am not directing you that you must disregard Haq's evidence in its entirety. Given that he is not a trustworthy witness, however, you can only reasonably rely on his account on any matter of significance if you are able to reach the conclusion that his account of that matter is reliable having regard to other evidence from other witnesses which you consider to be acceptable".