APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Mackay of Drumadoon Lord Emslie	[2011] HCJAC 32 Appeal No: XC512/03 OPINION OF THE COURT delivered by LORD REED in APPEAL by WILLIAM JOHNSTON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: McConnachie, Q.C., Murray; Gillespie Macandrew

Respondent: Wolffe, Q.C., AD; Crown Agent

7 April 2011

Introduction

[1] On 28 March 2002 the appellant was found guilty by a unanimous verdict of the jury on the following charge:

"(4) On 16 March 2001 at Exchange Lane, Aberdeen you DAVID SMITH WATT KENNEDY and WILLIAM JOHNSTON did assault George William Simpson, repeatedly punch and kick him on the head and body, repeatedly stamp on his head and repeatedly strike him on the body with knives or similar instruments, rifle his pockets and rob him of a tobacco tin and a mobile telephone and you did murder him."

[2] On 14 March 2002, at the close of the Crown case, the Advocate Depute withdrew charges 1, 2, 3 and 5 (a charge of assault, two charges of possessing controlled drugs, and a charge of perverting the course of justice), leaving only the murder charge. The appellant's co-accused was also found guilty on charge 4. In 2003 the appellant appealed against his conviction. The appeal has taken an exceptionally long time to be heard, for reasons which it is unnecessary for present purposes to consider, and for which those who represented the appellant at the hearing of the appeal bear no responsibility. The appellant's co-accused was refused leave to appeal against his conviction.

The evidence

[3] At the trial there was evidence to the following effect about the events of 16 March 2001.

Discovery of the body

[4] The body of the deceased, George (or "Dod") Simpson was found in Exchange Lane, Aberdeen at or about 00.35 on 17 March 2001. The deceased was covered in blood. His pockets had been turned inside out. Later analysis of the deceased's clothing disclosed damage to two pockets consistent with someone trying to get something out those pockets.

Deceased's injuries

[5] The deceased had sustained multiple stab wounds: (1) a stab wound to the right side of the chest which penetrated the lung and the aorta; (2) two stab wounds to the right side of the upper abdomen which penetrated the liver and gall bladder; (3) a stab wound on the right forearm towards the elbow; (4) a relatively superficial small sharp force injury on the back; and (5) a trivial incised wound on the surface of the left hand. The wounds to the abdomen were above the trouser belt and seemed to go upwards. The deceased had also sustained serious blunt force injuries principally involving the head. There was a constellation of features (petechial haemorrhages, a fabric pattern and small marks over the right jaw) which raised the possibility of partial or attempted strangulation as part of a sustained assault on the deceased. There were no defensive injuries. The deceased had died as a result of the stab wounds to his chest and abdomen. The pattern of the stab wounds suggested that they had been inflicted while the deceased was unable to move, either because he was unconscious or because he was being held. The signs of strangulation were consistent with the deceased being held by an arm across his throat, or by his own clothing being pulled backwards.

[6] The deceased was a well built man, and a former boxer. He had ingested a moderate amount of alcohol. Although traces of drugs were found, no drug was active in his blood system at the time. That evening, the deceased had a considerable amount of money on him, possibly £200 or more.

The locus

[7] Exchange Lane is an unlit lane which runs between Hadden Street at the north and Trinity Lane in the south. In the vicinity are a number of bars, including Rabbie's Bar in Hadden Street, the Snuggery and the St Andrews in Market Street, and the Metro Hotel, also in Market Street.

CCTV evidence

[8] CCTV footage included the following sequences. At or about 22.55, two figures were seen on Hadden Street. One was wearing a long dark jacket (consistent with that which the co-accused Kennedy was seen wearing that evening) and the other a beige or brown jacket with a light collar (consistent with that worn by the appellant). At or about 23.02, the figure wearing the long dark coat was seen coming out of Exchange Lane into Trinity Lane. The figure had dark hair which appeared to be pulled back into a pony tail (consistent with the co-accused Kennedy's appearance). The figure was seen to go into Ship Row, and appeared to put something in his pocket. There was CCTV evidence that this person followed a route up Ship Row, on to Union Street, down Adelphi Lane and on to Market Street. At or about 23.05, the male with the light jacket was seen coming out of Exchange Lane at the Hadden Street end, and walking east on Hadden Street.

[9] The appellant gave evidence to the effect that the two figures seen in the CCTV footage emerging from either end of Exchange Lane were himself and the co-accused Kennedy. He also gave evidence to the effect that he was present in Exchange Lane when, according to him, the deceased was attacked by the co-accused with a knife.

Forensic evidence

[10] Small bloodstains (later analysed for DNA and shown to match the deceased's blood) were found between the body of the deceased and the Hadden Street entrance to Exchange Lane, which could have been the result of a person with footwear wet with blood having walked from the area of the deceased's body towards Hadden Street.

[11] The blade of a knife, Label 43, without its handle, was found hidden under a pile of cobblestones between the body and the Hadden Street entrance to the lane. Blood smearing on the blade was analysed and shown to be of the deceased's DNA type. The knife also had textile fragments consistent with the deceased's clothing.

[12] Another knife, Label 61, was found on a landing at the Metro Hotel. There was light blood smearing on the blade and hilt of this knife. Both sides of the blade were contact stained with blood. This was subjected to DNA analysis and also shown to be of the deceased's type.

[13] The stab wounds to the deceased could have been caused by the same instrument, or by two or more similar instruments. Label 43 could have been responsible for all or any of the stab wounds sustained by the deceased. Label 61 could also have been responsible for all or any of the stab wounds sustained by the deceased. Both knives could have caused the cuts to the deceased's clothing. The blunt force injuries sustained by the deceased could have been caused by kicking and stamping. A trainer-shod foot could have caused such injuries.

[14] Label 94 was a knife handle. It was found in a wheelie bin in Adelphi Lane. Wound round it was pink Elastoplast tape. It fitted the blade, Label 43. There was evidence that the tape wound round the handle had been cut from a roll of Elastoplast which was found at 26 Elphinstone Court, the home of the co-accused Kennedy. Another knife with a similar binding round the handle (Label 103) was found at 26 Elphinstone Court. The deceased's mobile phone was also found in Adelphi Lane.

[15] Label 29 was the appellant's jacket. It was a brown corduroy jacket with a fake fur collar and sheer green lining. There were blood smears on the edge and inside of the right cuff and hem and on the lower right sleeve lining. This was subjected to DNA analysis and interpreted as DNA with the same profile as a sample of the deceased's blood, with a small amount of DNA with the same profile as that of the appellant. The smears indicated that the jacket had come into contact with an item or surface wet with blood. The location of the smears on the inside of the sleeve could be explained by the cuff coming into contact with blood from the deceased, either on an object or the hand of the assailant, or perhaps on the body or face of the deceased. It would be consistent with an item covered in blood, such as a knife handle, being pulled up into the sleeve.

Background

[16] The deceased was a drug dealer. The appellant gave evidence that he too was a drug dealer. Although the appellant stated that he and the deceased were friends, there was some evidence that the appellant did not like the deceased.

The appellant's movements prior to the assault: general

[17] On 16 March, the appellant and his girlfriend, Brenda Lawrence, had arranged to meet the deceased to get some drugs from him. They met him at the door of Rabbie's Bar. The appellant bought speed and cannabis from the deceased. This was about 6.30 or 7pm. The appellant and Lawrence went to the Snuggery in Market Street, and later to the St Andrews, also in Market Street, In the course of the evening, the appellant ingested alcohol, amphetamines and cocaine.

Events at Rabbie's Bar before the assault

[18] At some time between 10 and 11pm, the appellant appeared at Rabbie's Bar looking for the deceased. The appellant was wearing the jacket, Label 29. The doorman, Thomas Cranton, came out of the toilet and found the appellant halfway into the bar. Cranton told the appellant that he was barred and asked him to leave. According to Cranton, the appellant was "pissed off". The appellant stated that he wanted to speak to someone. He tried to push his way past the doorman, to whom he said "Tommy, you don't get paid enough for this". The appellant put his right hand inside the left side of his jacket. According to Carol MacDonald, the appellant was "quite angry" as he shouted for the deceased to come out. As the appellant left the bar, Carol MacDonald saw the handle of a knife (which she described as brown and white) down the back of the appellant's trousers. She became fearful for the deceased's safety, and called out a warning to him as he followed the appellant out into the street.

Eye witness evidence

[19] At about 11pm David Findlay walked past the Hadden Street end of Exchange Lane. He had the impression that there were figures - more than two - moving about, perhaps having a fight, in the lane. At or about the same time, Ian Gibson and his wife were passing the Trinity Lane end of Exchange Lane. Mr Gibson heard shouting coming from the lane. They were male voices. It was quite aggressive. He noticed someone kicking something or somebody. He saw just one person, a male, kicking but he thought there was someone else standing in the shadows. He described the man kicking as wearing a "light green ski jacket", which was down to the wearer's hips. Although the appellant's jacket was not a light green ski jacket, it was hip length and had a green lining. The description given by Mr Gibson was not consistent with the long dark coat which Kennedy was described as wearing.

Evidence in relation to Kennedy

[20] Between 11.30 and 11.45pm (i.e. following the assault) Anne Marie Gill met Kennedy coming into Rabbie's Bar. According to Gill, Kennedy told her to sit down. He told her there had been a "carry on". He told her that she would hear about it later. He told her to say that she had been with him all night. While Kennedy was in Rabbie's Bar, Kelly Duncan, the deceased's girlfriend, told Kennedy that she was worried about the deceased. On her evidence, Kennedy said to her "You're wasting your time looking for him" or "You're wasting your time with him."

[21] According to Gill, at or about midnight she and the co-accused Kennedy walked together from Rabbie's Bar to the Metro Hotel. Kennedy told her that "him and his mate had a carry on and they done Dod Simpson". As they passed Exchange Lane, Kennedy said it happened down the lane. He stated that somebody might find him and phone an ambulance and that he would be okay, he would not be found until the morning. Later, when they saw the ambulance and the police, she said to Kennedy, "He must be deid", to which Kennedy replied "Aye, pan breid".

Brenda Lawrence's evidence

[22] According to Brenda Lawrence, at about midnight she and the appellant left the St Andrews and went to the Metro Hotel. As they went into the Metro Hotel, the appellant, on her account, said to her, "What a doing Davie has just given Dod". Inside the Metro, Brenda Lawrence heard the co-accused Kennedy say to the appellant "Did you get that sorted?" The appellant told Brenda Lawrence that Kennedy had broken a knife in the lane and had asked him to go and look for it. Later, according to Lawrence, the appellant said something about the mess he (apparently a reference to Kennedy) made of the deceased's head because he had steel toe capped boots. According to Lawrence, "... he obviously said to me it was nothing to do with him it was Davie ...". The appellant told her that "he went and got Dod from Rabbie's Bar ... and then he went to the lane".

John Loftus' evidence

[23] According to John Loftus, at about 12.15, in the Metro Hotel, the appellant asked Loftus to say, if anybody asked him, that Loftus had met the appellant between 9 and 9.30 in the St Andrews bar. The appellant told Loftus that he had "done in Dod Simpson". Loftus asked him what it was about. The appellant said "What do you think?" and put his closed fist against Loftus' stomach as if he was holding something, and pulled his hand upwards across Loftus's shirt. Loftus took this to be a stabbing motion.

[24] Later, in the toilet at the Metro Hotel, Loftus saw the appellant take off his training shoe and wash it with a grey hand towel. When he was wetting the hand towel it looked as though blood was coming off the shoe. When Loftus asked the appellant what he was doing, the appellant said "Just washing the blood off". The co-accused Kennedy came into the toilet and, according to Loftus, the appellant said "I've just been telling Jake to say, if anybody asked, that he met us between 9 and 9.30 in the St Andrews bar." Kennedy told the appellant that he could not really expect Loftus to get involved. The appellant later said to Loftus, "If there's anyone you want done just let me know because I'll probably get a lifer for this one anyway".

Kelly Duncan's evidence

[25] Kelly Duncan, the deceased's girlfriend, approached the appellant at the Metro Hotel and asked where the deceased was. The appellant stated that he had asked the deceased for an "O" of speed and the deceased did not have it. The appellant was agitated and unwilling to speak to her.

The accused leave the Metro Hotel

[26] At about 2am, the appellant, the co-accused Kennedy and the witness Brenda Lawrence left the Metro together and went to Kennedy's flat, where they all spent the night.

Elsie Hannay's evidence

[27] On 18 March, the co-accused Kennedy phoned the witness Elsie Hannay and asked if he could stay with her. He stayed with her until 23 March. On 22 March, Kennedy told Mrs Hannay that he had been involved in the murder. He told her that he had been standing at the end of the lane in case anyone came past. He said that "Dod" was getting a hiding from the appellant and that he did not realise anything else until he heard metal falling on the ground. The witness gave a police statement in which she was recorded as saying "Davie said that when Willie telephoned him on Friday he asked Dave for a knife. But Dave never said if he gave Willie a knife or not". She ultimately accepted that she had said this and that it was the truth.

The appellant's letter indicating his desire to plead guilty

[28] In May 2001 the appellant wrote a letter to the co-accused's solicitors, stating:

"I William Johnston ... wish to plead guilty as charged to the murder and robbing of one George William Simpson in the said Exchange Lane, Aberdeen ... and that my co-accused charged the same had nothing whatsoever to do with it and wasn't there even, his name is one David Smith Watt Kennedy."

The Grounds of Appeal

[29] The appeal, as presented, focused upon four matters: first, the directions given to the jury by the trial judge in relation to the standard of proof; secondly, the absence of a direction in relation to "mixed" statements; thirdly, the directions given in relation to evidence relating to the appellant's possession of knives; and fourthly, the directions given in relation to Mrs Hannay's evidence concerning Kennedy's statement to her on 22 March about the telephone call. We shall consider these in turn.

Ground of Appeal 1: reasonable doubt

[30] In directing the jury as to the standard of proof, the trial judge began by giving standard directions:

"... the standard of proof required of the Crown is proof beyond reasonable doubt. If, having heard the whole of the evidence, and considered it, you are left with a reasonable doubt as to whether the Crown has proved the guilt of either or both accused, then you must acquit that or those accused.

I want to emphasise, Ladies and Gentlemen, that the test is one of reasonable doubt. It does not mean some far-fetched or fanciful doubt. It means the kind of real doubt that would cause you to hesitate or pause in taking an important decision in the conduct of your own lives. It is a doubt based on reason rather than one based on sympathy, prejudice, or emotion or impulse."

The trial judge then continued:

"Now, I can assure you this won't happen, Ladies and Gentlemen, but if you, in the course of your deliberations, have a doubt, in order to decide whether it is a reasonable doubt you might want to say: 'well, can I formulate a reason for that? What is the reason for the doubt?' And if you were asked - I emphasise you will not be asked - if you were asked to enunciate the reason for your doubt, you could actually express that, and say 'Well, the reason that I had doubt was ...', and then you would formulate that. As I say, it is not any doubt. It is a reasonable doubt, a doubt based on reason, not on sympathy, prejudice, emotion or impulse."

Leave to appeal was granted in respect of a ground of appeal which maintained that the latter directions imposed too high a standard, in so far as they might have given the jury the impression that any doubt they might have should be capable of being articulated. Counsel however acknowledged that that argument had been rejected, in respect of directions in broadly similar terms, in Dickson v HM Advocate 2005 SCCR 344. Counsel did not suggest that a larger bench should be convened in order to re-consider the decision in that case. In the circumstances, counsel conceded that, on the authority of Dickson, this ground of appeal could not succeed.

Ground of Appeal 2: "mixed" statements

[31] As we have explained the Crown led evidence from Brenda Lawrence that as she and the appellant went into the Metro Hotel, the appellant said to her, "What a doing Davie has just given Dod". Counsel submitted that this statement was inculpatory, in so far as an inference could be drawn from it that the appellant had been present at the time of the murder. It was also exculpatory, in so far as it attributed responsibility for the attack on the deceased to the co-accused Kennedy. The jury should therefore have been directed that the defence were entitled to rely on the exculpatory part of the statement as evidence of the truth of its contents. No such direction had been given: on the contrary, the jury had been directed that evidence of a statement made by one accused outwith the presence of the other was "only evidence against the person who made it".

[32] The whole of the evidence in question thus formed part of the evidence in the case relative to the appellant, but did not form part of the evidence in the case relative to the co-accused. That was the point being made by the trial judge in the direction to which counsel referred. In our view, there was therefore no need in the present case for the jury to be given any additional direction about the significance of mixed statements. Where the trial judge had said nothing to indicate that only a restricted use might be made of any evidence in the case, there was no need to spell out to the jury that the evidence in question was to be treated as evidence in causa in the same way as the other evidence in the case. Indeed, the trial judge gave the jury directions that if anything said by any witness, whether called by the Crown or by the defence, gave the jury a reasonable doubt, they must acquit; and the evidence of Miss Lawrence about statements made to her by the appellant fell within the scope of that direction. Furthermore, as we have explained, the appellant himself gave evidence that he was present in Exchange Lane when, according to him, the deceased was attacked by the co-accused with a knife. The trial judge reminded the jury of that evidence, and directed them to acquit the appellant if they had a reasonable doubt as to his participation in a concerted attack with the co-accused, or, in the absence of concert, as to his personal responsibility for the attack on the deceased.

[33] In these circumstances there appears to us to be no merit in this ground of appeal.

Ground of Appeal 3: The appellant's possession of knives

[34] In the course of the Crown case, the witness Carol MacDonald gave evidence about an occasion at about the beginning of February 2001 (i.e. about six weeks prior to the murder) when she had been in Rabbie's Bar. She said that the appellant had threatened to stab her and had held something at her throat, which she thought was a knife. This incident was the subject of charge 1 on the indictment, which, as we have explained, was withdrawn at the close of the Crown case. She also gave evidence, as we have mentioned, that the appellant had been in Rabbie's Bar on the night of the murder and that she had seen the handle of a knife (which she described as brown and white) down the back of his trousers. She also gave evidence that she had seen a knife, with elastoplast wrapped around the handle, in the appellant's house on an occasion some months before the murder. She said that the elastoplast had been of a darker colour than the elastoplast wrapped around the broken knife handle, Label 94, and that she did not recognise the other knife with elastoplast round the handle (Label 103), which had been found in the co-accused's house. In the course of cross-examination on behalf of the co-accused, she also gave evidence about an occasion at the Snuggery bar in February 2001 when there had been an argument between herself and Brenda Lawrence. The appellant, who was with Miss Lawrence, had pressed something against the witness's back and told her that "this is going into you if you don't eff off". She had thought that it was a knife, but she had not seen it and could not say whether it was in fact a knife. She also gave evidence that she had seen a knife similar to Label 61 in the appellant's house. As we have explained, Label 61 was the blood-smeared knife found on a landing at the Metro Hotel.

[35] It was submitted that this evidence was irrelevant and prejudicial to the appellant, and that the jury should therefore have been directed to disregard it. Since the jury had not been so directed, there had been a misdirection.

[36] We are unable to accept that submission. The evidence of Carol MacDonald as to the appellant's possession of a knife on the night of the murder was plainly relevant. So too was her evidence that she had seen knives similar to Labels 61 and 43/94 (the two knives with blood on them matching the deceased's DNA) in the appellant's house. So far as the incidents at Rabbie's Bar and the Snuggery in February 2001 are concerned, by the time that evidence was given the appellant had elicited evidence from Brenda Lawrence that he had never carried knives when he was in her company. It is also necessary to bear in mind that the appellant was incriminating the co-accused and had been incriminated by him.

[37] In the event, the direction which the trial judge gave in relation to this evidence was straightforward. He began by reminding the jury briefly of the evidence in question:

"You will recall that there was evidence from Carol MacDonald about what was formerly, I think, charge 1, the incident - an earlier incident in the Rabbie's Bar, and also evidence from her and Ernest Bain about an earlier incident in the Snuggery bar a few months before the incident with which you are now concerned. There was also evidence from Carol MacDonald that she saw knives on two occasions at the first accused's - at the second accused's house in Victoria Road."

The trial judge then directed the jury:

"Ladies and Gentlemen, I must direct you that these pieces of evidence are not relevant to your consideration of the guilt of either of the accused of the crime charged, unless you considered that the knives on either or any of these occasions matched the description of the knife or knives which were used to kill Mr Simpson. That is the only relevance of that evidence, and if you concluded that they did not, then you would simply put that evidence out of your consideration."

[38] In our opinion that direction was unobjectionable, and, if anything, was favourable to the appellant. Plainly, if the knives to which the evidence related matched the description of the knives which were used to kill the deceased, then the evidence was relevant; and, if the jury did not consider that that requirement was satisfied, they were directed to put the evidence aside. The trial judge might have given more elaborate directions, but to have done so would have risked giving undue prominence to evidence which was of limited significance in the context of the other evidence at the trial; and if more elaborate directions had been given, they would not in any event have been more favourable to the appellant.

Ground of Appeal 4: Mrs Hannay's evidence

[39] As we have mentioned, Mrs Hannay gave evidence about a conversation which she had had with the co-accused Kennedy on an occasion several days after the murder. The trial judge interrupted her evidence to give the following direction to the jury:

"Well, ladies and gentlemen, you will remember what I said about statements made by one accused outwith the presence of another accused not being evidence against the person who was not present, but it may be used in concert cases if it assists you to determine whether there was a common criminal purpose."

Mrs Hannay then gave the evidence about the conversation which we have summarised, including evidence that the co-accused Kennedy had told her that the appellant had telephoned him the previous Friday (which was the day of the murder) and asked him for a knife.

[40] When the trial judge told the jury, in that connection, that they would remember what he had previously said, he was referring to a direction which he had given them during the evidence of Brenda Lawrence. On that occasion, after directing the jury that a statement made by one accused was not generally admissible as evidence against another accused who was not present at the time, he continued:

"If, however, it is ultimately established that the two accused were acting in concert - and I'll tell you a little bit more about that, acting together with a common criminal purpose, anything said by either of them in connection with a common purpose is admissible in evidence so that the general position is that the statement is not evidence against the first accused but it may change if there is a question of concert if what is said goes towards establishing a common criminal purpose."

[41] The trial judge returned to this matter in the directions which he gave to the jury at the conclusion of the trial. On that occasion, after reminding the jury of the general rule that a statement made by one accused when the other accused was not present is only evidence against the accused who made it, he continued:

"There is, however, a speciality in the present case, where the Crown is relying on the doctrine of concert - and this only refers to the statements to witnesses who are not police officers. If you are satisfied beyond reasonable doubt that the two accused acted in concert, then anything spoken by either of them in connection with their common criminal purpose is admissible in evidence against both.

In the present case I want to emphasise that as far as the various statements are concerned, this would only appear to apply to the evidence of Elsie Hannay in relation to the alleged conversation when the first accused was supposed to have said something about the second accused telephoning him and asking him to bring a knife on Friday - telephoning him on the Friday and asking him to bring a knife.

If there was such a conversation, you may wish to consider whether it assists you in determining what was the common criminal purpose, bearing in mind what we've talked about, that you have been satisfied that there was concert. Does - if such a comment was made, does that assist you in reaching a view as to what the common criminal purpose was, and as to whether the common criminal purpose involved the use of knives or a knife.

If, of course, concert is not established, the alleged statement to Elsie Hannay must be disregarded when you consider the case against the second accused. In that event it could only be used as evidence against the first accused, who allegedly made it. "

The trial judge also referred to this matter at a later stage in his charge to the jury, when he summarised the evidence bearing on the question "whether this was a concerted attack". One item which he mentioned in that connection was Mrs Hannay's evidence as to the co-accused's account of being telephoned by the appellant. The trial judge also referred to this evidence on a further occasion, when he summarised the evidence bearing on the question whether, if there was a concerted attack on the deceased, it was one in which the use of knives was contemplated.

[42] The common enterprise exception to the hearsay rule is well established in Scots law. Dickson on the Law of Evidence in Scotland (1887 edition) states at paragraph 363:

"Even in cases of conspiracy any statement by one prisoner, which is either a narrative of measures already taken, or a confession of the crime charged, cannot be used against a co-conspirator. On the other hand, all words uttered or documents issued by one conspirator in furtherance of the common design, and those which accompany acts of that description, and so form part of the res gestae, may be used against all the other prisoners, provided there be prima facie proof that they engaged in the plot."

It is apparent from the authorities cited by Dickson, all of which are English, that the principle derives from English law; and, although the passage from Dickson has been cited in a number of Scottish cases, such as HM Advocate v Docherty 1980 SLT (Notes) 33 and Hamill v HM Advocate 1999 SCCR 384, the rationale and scope of the common enterprise exception do not appear to have received as detailed consideration in Scotland as in a number of other jurisdictions. It is however clear in Scotland, as elsewhere, that this exception to the hearsay rule is confined to evidence of things said in furtherance of the common purpose, and cannot therefore apply to statements, claims or allegations made after the common purpose has been achieved or has failed. That appears clearly from the passage in Dickson which we have cited and from the case of R v Blake & Tye (1844) 6 QB 126 at pages 137-140 (115 ER 49 at pages 54-55), cited by Dickson, as well as from the more modern authorities discussed in Phipson on Evidence, 17^th edition, at paragraph 31-49. It follows that Mrs Hannay's evidence about the statements made by the co-accused several days after the murder was not admissible as evidence in the case against the appellant, and that the trial judge misdirected the jury in that regard.

Was there a miscarriage of justice?

[43] The question then arises whether the misdirection in relation to this part of Mrs Hannay's evidence resulted in a miscarriage of justice: whether, that is to say, there is any real possibility that, if the jury had not been so misdirected, they might not have returned the verdict which they did. The answer to that question depends primarily upon the significance of the evidence in question, in the context of the other evidence which was properly before the jury.

[44] We have summarised the other evidence relevant to the appellant. To recap, the appellant summoned the deceased from Rabbie's Bar. A number of witnesses spoke to the appellant's angry demeanour at that time. One witness spoke to seeing a knife in the appellant's waistband. The appellant and the co-accused were placed at the locus during the assault, not only by CCTV footage but also on the appellant's own evidence. The forensic evidence suggested that the deceased had been the victim of a concerted attack, with one person holding him while another stabbed him repeatedly. An eye witness spoke to seeing a man wearing a hip-length coat which appeared green kicking what may be taken to be the deceased's body lying in the lane. The description of the coat was inconsistent with that of the co-accused but had features consistent with the appellant's coat. The appellant's jacket had blood which matched that of the deceased on the inside of the sleeve. There was evidence from which the jury could conclude that at least the two knives, Label 43/94 and Label 61, were used in the assault. The appellant and the co-accused each made their separate ways to the Metro Hotel after the assault. En route, it would appear that the co-accused disposed of the deceased's mobile phone and the broken knife handle, Label 94. Bloodstains, and the broken knife blade Label 43, were found towards the Hadden Street end of the lane from which the appellant left the scene. The blood on the inside of the appellant's sleeve was consistent with his having secreted an object with the deceased's blood on it up his sleeve. Label 61 was found at the Metro Hotel. At the Metro Hotel, the appellant asked John Loftus to give him a false alibi. The appellant told Loftus that he had "done Dod Simpson". Loftus asked him what it was about. The appellant said "What do you think?" and put his closed fist against Loftus' stomach as if he was holding something, and pulled his hand upwards across Loftus' shirt. Loftus took this to be a stabbing motion. The description was consistent with the stab wounds to the deceased's abdomen. Mr Loftus subsequently saw the appellant cleaning his trainer, apparently of blood. There was an exchange between the two accused in the presence of Loftus consistent with their being implicated together in the crime. The appellant and the co-accused later went together to the co-accused's flat, where the appellant and his girlfriend spent the night. The appellant subsequently sent a letter to the co-accused's solicitor, admitting his guilt.

[45] In the context of that body of evidence, Mrs Hannay's evidence about the telephone conversation appears to us to have been relatively insignificant. If the jury accepted not only that Mrs Hannay's account of what she had been told was correct, but also that the co-accused had been telling her the truth about the telephone call, that evidence may have been thought to add to the case of concert: in particular, it could be taken as implying that there had been a prior intention, or at least readiness, to use knives as weapons. There was however a wealth of other evidence, of a more compelling and immediate character, to support the conclusion that the deceased had been stabbed to death in a concerted attack in which the appellant had participated. There were also reasons why a jury might have rejected this particular item of evidence, or at least hesitated to accept it. First, there was evidence suggesting that the co-accused had attempted to minimise his own responsibility for the murder and to cast the blame solely upon the appellant. The Crown's position was that the co-accused's account to Mrs Hannay of being present at the time of the murder, but not involved in it, was an example of this behaviour. Secondly, there was a substantial body of evidence, as we have explained, suggesting that the appellant habitually kept several knives in his house. In the light of that evidence, counsel for the appellant submitted to the jury that it was utterly absurd to suggest that the appellant should be phoning the co-accused for a knife: he had a canteen of knives of his own. This evidence, it was submitted, was another example of the co-accused trying to manufacture evidence against the appellant.

[46] Considering the evidence as a whole, it appears to us that the case against the appellant was overwhelming. That must also have been the jury's assessment: they returned unanimous verdicts of guilty against both accused only an hour or so after retiring. We are satisfied that there is no real possibility that the verdict against the appellant would have been any different if the jury had not been misdirected in relation to the evidence of Mrs Hannay.

[47] For the foregoing reasons we shall refuse the appeal.