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Cite as: [2005] HCJAC 39, [2005] ScotHC HCJAC_39

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Dickson v. The Lord Advocate [2005] ScotHC HCJAC_39 (01 April 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Macfadyen

Lord Kingarth

[2005HCJAC39]

Appeal No: XC212/02

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL AGAINST CONVICTION

RYAN PATRICK DICKSON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Kerrigan, Q.C.; Wheatley & Co., Edinburgh

Respondent: Mackay, A.D.; Crown Agent

1 April 2005

[1] On 19 September 2002 at the High Court in Glasgow the appellant was convicted of the culpable homicide of Michael Francis Mallon in Glasgow on 31 August 2001. The charge, which was originally one of murder, libelled inter alia that while acting with others he repeatedly struck the deceased on the head and body with a brick or similar instrument, kicked him on the head and body and struck him on the head and body with a knife or similar instrument.

[2] The circumstances of the case, as stated in the report by the trial judge, were as follows. The deceased and his friend Gary Joseph Shaw had been at the home of Shaw's girlfriend in her company and that of another girl. During the evening the deceased and Shaw went out to purchase more alcohol and thereafter returned to the house. Later in the evening they went to purchase some cigarettes. As they were walking back towards the house they were chased by the appellant and two other persons. In the course of the chase threats were shouted at them, along the lines that they were "getting stabbed" or "getting done". The appellant was seen to be in possession of a brick. Shaw managed to escape, but the deceased was caught by the pursuers and may have been intercepted by a fourth person. After the attack on the deceased four people were seen to be running away. The deceased was found to be seriously injured and was taken to hospital where he died on the following day. Postmortem examination showed numerous abrasions and bruises on his body, and stab wounds on the back of his left thigh and on his left buttock. There was a fracture of the mandible throughout its width on the left and right sides. The fractured mandible was associated with the inhalation of blood from severed vessels.

[3] The first ground of appeal, the terms of which are as substituted by leave of the court on 10 June 2004, relates to an objection to the admissibility of evidence as to a statement made by the appellant to police officers in which the appellant incriminated himself. It is not in dispute that, in the absence of that evidence, there would have been insufficient evidence to entitle the jury to convict the appellant.

[4] Following the fatal incident the appellant was detained under section 14 of the Criminal Procedure (Scotland) Act 1995. He was interviewed by police officers. During the interview, which was tape-recorded, he consistently denied being involved in any attack on the deceased, and he stated an alibi. Having been detained for almost six hours he was arrested at the end of the interview, and was cautioned and charged with murder. During the afternoon he was seen by his solicitor. In the early evening he was taken from his cell. Detective Constables Kevin Duffy and David Shanks. took him to a room for the purpose of obtaining routine information from him and entering it on a descriptive form. The police officers were also instructed to be present when the appellant was medically examined and his fingerprints were taken. They were aware that the appellant had been arrested and had been cautioned and charged with murder. They were acting as family liaison officers for the case, and spoke to the family of the deceased at least once a day. The appellant was provided with tea and toast. It appears that the appellant told the Detective Constables that he had been in the police office since about 7 a.m., and had had nothing to eat. In the room there were tape recording facilities. DC Duffy gave evidence that he was taking personal details from the appellant when the latter started to speak about circumstances of the murder. Counsel for the appellant took objection to the line of evidence. The trial judge decided that there should be a trial within a trial to enable him to determine the question of admissibility. For this purpose he heard the evidence of the two Detective Constables, the appellant and his mother.

[5] For an account of the evidence which was given in the trial within a trial we refer to the two reports which the trial judge has provided in connection with the appeal. We should add that by interlocutor dated 10 June 2004 the court directed that the evidence of the two detective constables and the appellant should be transcribed no later than 31 July 2004. In the event what was transcribed was their evidence in the trial itself. During the course of his submissions before this court Mr Kerrigan, who appeared for the appellant, moved the court to continue the appeal to enable transcripts of their evidence in the trial within a trial to be obtained. However, we refused his motion on the ground that the appellant's legal representatives had had ample time in which to raise this matter, and that in any event, in the light of the general nature of Mr Kerrigan's submissions, the material contained in the trial judge's reports was adequate for the purpose of dealing with this ground of appeal. We turn then to the evidence at the trial within a trial.

[6] DC Duffy stated in evidence that the appellant asked why he was the only person who had been arrested and whether other people were to be arrested. At that point the witness cautioned him. The appellant stated that he knew that he had been charged but did not know what to do about it. He was distressed and anxious. Neither detective constable said anything to him. The appellant said that he was worried about his mother and family, and started to describe events of the night of the incident. He had been at James Martin's house with James Walker. He had left the house and had been picked up by Patrick McAllister in a car. Two other persons were in the car. DC Duffy said that he asked the appellant who were the other two persons, but the appellant would not tell him. The appellant then said that they drove to Cranhill where they saw the deceased and Shaw. McAllister stopped the car and four persons, including the appellant, got out. They followed the deceased and Shaw along Skerryvore Road. DC Duffy, who was aware that only three people had been seen on CCTV chasing the deceased and Shaw, asked the appellant if he was sure that four people had got out of the car. The appellant confirmed that there were four of them. The appellant said that he chased Shaw, and "the wee prick threw a can at me". Shaw was on all fours, and the appellant could have "torn his fucking head off". He ran to where the deceased was. He did not stab him, but hit him with a brick and kicked him a couple of times. PC Duffy said that he may have asked a question to clarify matters but he did not remember. The appellant referred to a scar on his face and said: "Oxfam did this to me". Oxfam was a nickname for the deceased. He said that it had happened two years ago, before he went on holiday. Someone had taken out the stitches for him. The appellant emphasised that it had not been intended that the deceased should be killed. He was to be assaulted, and that was all. The appellant said he did not have a knife, and did not stab the deceased. The deceased had been stabbed by others in the Garthamlock area, including someone called Bowman. By this time the appellant was crying and was obviously anxious to speak to someone. The appellant asked whether what he was saying would be read out (in court). PC Duffy said that he replied that he did not know, but the appellant could make a voluntary statement on tape if he wished. The appellant did not wish to follow that course. PC Duffy stated that he did not consider the voluntary statement procedure earlier. He told the appellant that neither he nor his colleague would take such a statement. The appellant said to them that he would think about it. DC Duffy said that he did not encourage the appellant to speak. Having cautioned him at the outset, he allowed him to say what he wished.

[7] In cross-examination DC Duffy stated that his colleague was taking notes. He accepted that no attempt had been made to read out these notes to the appellant, and he was not asked to sign them. He said that he did not ask any questions of the appellant other than for clarification. He denied that it was a "question and answer session". He agreed that he and his colleague required to have a detailed knowledge of the case in order to speak to the family of the deceased at least once a day. He denied that either he or his colleague said to the appellant: " There's no point in denying it. CCTV shows it was you". He was, however, aware that CCTV evidence was available, and that there was a suggestion that the appellant was shown on the film. He was also aware that photographs had been shown to witnesses. The appellant asked the witness why he had been picked out. The witness accepted that he may have said that he had been identified, but denied he would have said anything about photographs of the appellant. The witness agreed that he asked the appellant to show him the scar, so that he could note details on the form. He denied having asked him where or when he got it. He did not consider it was appropriate to tape-record the incident. He denied that he was trying to encourage the appellant to speak. He confirmed that when he returned the appellant to his cell he informed him that he could make a voluntary statement at any time he wished.

[8] DC Shanks gave evidence that the appellant was undoubtedly concerned that he was being isolated and that his mother was being left alone. DC Duffy reminded the appellant that he was under caution. The appellant then began to talk about the inquiry. He admitted that he had acted with others, but said that events had overtaken matters. Death had not been the intended outcome. The witness made notes on a piece of paper, and thereafter transferred them to his notebook. Nothing was said to encourage the appellant to speak, although DC Duffy asked him who else was there. When the appellant did not wish to name them, DC Duffy asked why that was the case if the appellant was naming Walker and McAllister. In cross-examination the witness denied that it was a question and answer session, although he accepted that there were questions to clarify comments made by the appellant. He denied the suggestion that he was not writing in the room. He did not consider it was appropriate to tape-record the discussion. It did not fall within the guidelines for tape-recording statements. It was not in the category of a formal voluntary statement which would be taken by officers unconnected with the inquiry and tape-recorded. The witness also said that the appellant was anxious to emphasise that he did not stab the deceased, and that he had played a minor role in the incident. The witness denied a suggestion that the purpose of his involvement was to get a better result than had been achieved during the interview prior to the stage at which the appellant was cautioned and charged. The purpose of the meeting in the room was to obtain details of the appellant's antecedents and his description.

[9] The appellant gave evidence that prior to being cautioned and charged he had a meeting with his solicitor for about an hour. He was warned to be wary of the police taking him aside to have a friendly chat in an effort to get evidence. He claimed that DC Duffy had told him that he had been picked out on CCTV and in photographs, and that DC Duffy was trying to get him to confess. He denied any involvement in the incident. PC Duffy commented on the scar on his face. He told the police officers that he had been struck with a bottle two years before, and that a friend had removed the stitch. He did not know who had assaulted him and told the officers that. They seemed to be interested in particular persons whom they described as drug dealers. He denied there was any paper in the interview room. He thought that one of the police officers was playing a game on his mobile phone. Nothing was written down when he was in the room. He did not say anything about the incident. When he was returned to his cell he was told that he should think about his position and that he could make it easier on himself. The following day DC Duffy said in the presence of himself and his mother that the deceased had caused the scar. In cross-examination he agreed that he had been told in the course of the interview which followed on his detention that there was CCTV evidence and that he had been identified as being present. He said that DC Duffy and DC Shanks tried to encourage him to make admissions, but he did not do so.

[10] Mrs Linda Dickson, the mother of the appellant gave evidence that she was present when he was detained. When she took clothes to the police office the following day DC Duffy told her that the deceased had "put a bottle in her son's face"

[11] The trial judge reports that he accepted the evidence of the two police officers and rejected that of the appellant, including his evidence that DC Duffy told him that he had been identified and was trying to get him to confess but that he had not made any incriminatory statement. The trial judge concluded that any questions asked by the police officers of the appellant were for clarification. He also concluded that if the appellant had made the statement to the police officers it had not been unfairly obtained. He did not consider it was necessary for them to stop the appellant from speaking and to invoke the procedure for taking a voluntary statement. In the circumstances he decided that the evidence relating to the appellant's statement to the two detective constables was admissible, and repelled the objection. When the trial resumed, evidence to the same general effect was given by these witnesses.

[12] The primary submission made by Mr Kerrigan on behalf of the appellant was that, following the cautioning of the appellant, the detective constables should have explained the procedure for the taking and recording of a voluntary statement by independent police officers. He emphasised that it would be unusual for police officers who were family liaison officers to be involved with a person who had been cautioned and charged. The detective constables knew that the appellant had already been detained and interviewed. No use was made of the tape recording facilities in the room. The only proper course was the making of arrangements for the taking of a formal voluntary statement. What happened could not have been otherwise than unfair. It was not a case of a person blurting out incriminatory remarks. The appellant was informed that he could make such a voluntary statement, but this was only towards the end of the discussion in the room. It appeared that the detective constables did not consider that what was said by the appellant would be admissible in court. Mr Kerrigan suggested that some indication of this view was conveyed to the appellant. (We should add at this point that there is no trace of this in the reports provided by the trial judge. Mr Kerrigan placed some reliance for this purpose on the evidence given by DC Duffy before the jury. However, the only passage to which he referred was on page 19 of the transcript. It is recorded on that page that DC Duffy gave evidence that the appellant asked him "if what he was telling me could be read out in court". In reply the witness told him that he did not know. The text of what he said immediately thereafter is incomplete, but it appears that the witness said that he thought that if he wanted it to be read out in court he would have to give a formal voluntary statement. This passage does not suggest that the appellant was led into making incriminatory remarks in reliance on any assurance or understanding that what he said would not be admissible in court).

[13] The secondary submission made by Mr Kerrigan was that in any event the detective constables should have tape recorded what was said by the appellant. Mr Kerrigan relied on the nature of what took place, which, he said, resembled an interview. The trial judge had misdirected himself in concluding that questions were asked of the appellant merely for the purposes of elucidation. In reality this was a further statement taken from the appellant after he had been cautioned and charged with murder.

[14] The Advocate depute submitted that the matter of fairness was essentially one for the trial judge. What the appellant said to the detective constables was in substance a voluntary statement, although it was not taken in the best way. Evidence should not be regarded as unfairly obtained merely because formal procedures had not been followed. Most of the appellant's remarks did not incriminate him. It was clear that his main purpose was to exclude himself from any involvement with the knife attack on the deceased. Any questions which were asked by the DC Duffy did not cause the appellant to incriminate himself.

[15] In dealing with this ground of appeal the first matter which we require to consider is the significance of the fact that the procedure for a formal voluntary statement was not followed. In Tonge v H.M. Advocate 1982 S.C.C.R. 313 Lord Cameron stated in his opinion at page 350:

"The regular and proper practice when an accused or suspect indicates or intimates that he wishes to make a voluntary statement is that the statement should be taken by officers, unconnected with the particular investigation, and authenticated by the signatures of the officers concerned and the maker of the statement himself".

In Cordiner v H.M. Advocate 1991 S.C.C.R. 652 the Lord Justice Clerk (Ross) stated at page 665 with reference to this passage in the opinion of the Lord Cameron:

"In my opinion all that Lord Cameron is referring to in connection with the taking of statement is the practice of police officers. He is not be taken as stating that if that practice is not followed, a statement taken from an accused person will be inadmissible. In my opinion if a statement has not been taken by police officers unconnected with the investigation, that may be a circumstance bearing upon the question of whether the statement is to be regarded by the jury as a voluntary statement fairly obtained. The test is one of fairness and that is for the jury to determine".

That statement has, of course, to be read subject to the decision of the court in Thompson v Crowe 2000 J.C.173 that the question of admissibility is for determination by the trial judge. However, the statement is otherwise correct. Applied to the present case it means that the fact that the detective constables did not refer the appellant to the procedure for a formal voluntary statement immediately after he was cautioned does not mean, contrary to Mr Kerrigan's primary submission, that what the appellant said thereafter cannot have been fairly obtained.

[16] The next matter which we have to consider is the extent to which this court can properly interfere with the determination by the trial judge as to the matter of fairness. In L.B. v H.M. Advocate 2003 J.C.94 the court stated at page 102:

"The role of this Court in an appeal against the trial judge's decision was restated in CWA v Advocate [2003 S.C.C.R.154], where the Lord Justice Clerk, delivering the opinion of the Court said, in para 16,

'Where objection is taken to the fairness of a police interview and there is a trial within a trial, the question of fairness is pre-eminently a question of fact for the trial judge. We can interfere with his decision on that matter only if he has erred in law or if his decision is manifestly unreasonable. In this case, the trial judge had the advantage of hearing the tape recording of the interview and of seeing and hearing the police officers in the witness box. In our opinion, we could not even consider the soundness of the trial judge's decision since we have been referred only to the transcript of the interview'

In our opinion, those observations properly describe the Appeal Court's approach, whether the unfairness is said to derive from the methods used or from the circumstances of the person interviewed".

[17] We bear in mind that it is well recognised that, where an accused person has been cautioned and charged, what he says in response to interrogation or invitation by police officers will not be admissible (Aiton v H.M. Advocate 1987 S.C.C.R 252 at page 258). In the present case the trial judge was entitled to accept the evidence of the detective constables, and on that basis to conclude that the appellant wanted to make a statement to them, and in particular to minimise the extent of his involvement in the fatal incident. It was incidental that he thereby admitted a degree of involvement which was of critical importance to the Crown case. The questions asked by DC Duffy appear to have been intended to clarify the position. In any event they did not result in the appellant further incriminating himself. In these circumstances we are not persuaded that is any basis on which we would be entitled to interfere with the decision of the trial judge as to the admissibility of evidence in regard to what was said by the appellant.

[18] The second ground of appeal is concerned with the trial judge's directions to the jury in regard to the standard of proof. At page 13 of the transcript, after stating that the standard was proof beyond reasonable doubt, he said:

"Now, I emphasise, ladies and gentlemen, the test is one of reasonable doubt. It does not mean some far-fetched or fanciful doubt. It does not mean proof to a mathematical certainty because you will appreciate in life nothing can be proved to a mathematical certainty apart from mathematics. It is the sort of real doubt, a reasonable doubt is the sort of real doubt that would cause you to hesitate or pause before taking an important decision in your own lives. So before taking an important decision you would weigh up the advantages and disadvantages and you would assess the advice you were given, you would speak to people, you would form a view as to whether they were to be relied upon. If at the end of all that you hesitated and paused and said well, I'm not convinced, then that would be the sort of doubt that might be described as a reasonable doubt. Ladies and gentlemen, basically it is a doubt based on reason rather than a doubt based on sympathy, prejudice, emotion or impulse. You might want to test it this way, ladies and gentlemen, and just to reassure you that this will not happen but if after your deliberations you came back into the court and I took you one by one and said now, what was doubt that you had, what was the reason for your doubt and you should be able to articulate, you should be able to explain what the reason is for your doubt. As I say, that will not happen because nobody is allowed to ask juries, quite properly not allowed to ask juries, about their deliberations and neither I nor counsel nor anyone else is able to ask you about what happens in the jury room".

[19] Mr Kerrigan submitted that, in using the test of the imaginary conversation with the jurors, the trial judge had set far too high a test for a reasonable doubt. The danger was that the members of the jury might think that a reasonable doubt had to be backed up with a good explanation.

[20] We are not persuaded that there is any substance in this complaint. We would repeat the advice given by the Lord Justice Clerk (Thomson) in McKenzie v H.M. Advocate 1959 J C 32 at page 37 that it is desirable to adhere so far as possible to the traditional formula and to avoid experiments in re-formulation. However, in the present case we regard the trial judge's reference to the imaginary conversation as no more than illustrating his direction that a reasonable doubt was a doubt based upon reason, which in itself is a sound direction (Shewan v H.M. Advocate 1989 S.C.C.R.364 at page 366).

[21] In the third, and remaining, ground of appeal it is maintained that the trial judge erred in failing to give a balanced account of the evidence given by a Crown witness, Sharon McDade, and in regard to her identification of the appellant.

[22] She gave evidence, to which the trial judge referred at pages 33-35 of the transcript of his charge, that on the night of the incident she was alerted to the fact that one of the persons who was pursuing the deceased had a brick. She was sufficiently concerned that she drove out of her way to see whether any assistance from the authorities might be required. Later, from one of a number of sheets of photographs which were shown to her by the police, she picked out the appellant as the person with the brick. She said in evidence that she had picked him out because she recognised him by his face. Thereafter she attended an identification parade on 10 September 2001 when she picked out the appellant as the person whom she had seen with a brick, stating that she was 70 per cent sure of her identification. When she was asked in court whether any of the perpetrators were present, she said she was not sure at all of his face now and failed to identify anyone. When asked if there was anyone similar, she replied "possibly the boy sitting there", referring to the appellant.

[23] The trial judge directed the jury that in approaching identification evidence "a reasonable amount of care" was required, warning them that there had been cases of mistaken identity. Thereafter he directed them that there were a number of considerations which they might wish to bear in mind, including the means which the witness had for observing the person later identified by him or her.

[24] The complaint which is made in the ground of appeal is that the trial judge did not remind the jury that she had described the person whom she saw at the scene as 5 ft. in height, whereas the appellant was 5'11" in height. According to the ground of appeal, she accepted in evidence that someone of that height was "most definitely" different from the person whom she recollected. She also stated in cross-examination that it was very possible that she might have picked out someone who was not present on the night of the incident. It is also maintained that the trial judge failed to direct the jury about how they should treat her evidence when she was asked to identify the perpetrator in court. The jury were not told what significance to place on dock identification, or whether it could have any bearing on the evidence of earlier identification by the witness.

[25] We do not consider that the trial judge's charge was vitiated by the fact that he did not remind the jury of her evidence in regard to the height of the person whom she had observed at the scene. A trial judge is not under a duty to repeat all the criticisms by the defence of the evidence founded on by the Crown. The point about the height of the perpetrator was brought out in cross-examination of the witness. Having directed the jury (at page 35 of the transcript) that they required to consider the opportunity which a witness had had to observe the perpetrator, and that they should assess her identification evidence in the light of that, he pointed out that various criticisms of evidence had been advanced by Mr Kerrigan, and directed them that the required to consider those criticisms in their evaluation of her evidence. He also reminded them that if they rejected her evidence of identification of the appellant, there was insufficient evidence and nor to entitle them to convict him. In our opinion it was not necessary for the trial judge to give the jury explicit directions in regard to dock identification, either in general or in relation to the other evidence in the case.

[26] In the circumstances the appeal against conviction is refused