Appellant: Mitchell; John Pryde & Co

Respondent: A Stewart, QC AD; the Crown Agent

28 March 2013

[1] In this case evidence was led by the Crown of only parts of the appellant's interview by the police. These parts included a denial by the appellant that he had committed the offence in question. They also included a statement by the appellant that he had been at home during the whole of the night on which the offence had been committed, although evidence was subsequently led to the effect that, shortly after the commission of the offence (which involved striking the complainer on the head with a glass and repeatedly striking him on the body with a knife), the appellant attended at Edinburgh Royal Infirmary complaining of a cut hand which, he told the medical staff, had been caused while washing a glass in the sink. When, in the course of his police interview, he had been confronted with this prospective evidence the appellant replied, "No comment". The appellant did not himself give evidence.

[2] In the event, the trial judge directed the jury that in assessing the evidence about the appellant's attendance at the Royal Infirmary they could, by way of exception to the rule against hearsay, have regard to the evidence of what the appellant said to the medical staff and of what he had said about that to the police. She did not, however, make any reference to any other part of the police interview and, in particular, to the denial of guilt.

[3] It was conceded by the Crown that the evidence of everything said to the police should be regarded as a "mixed statement" and, in light of that concession, we accept the submission made by Ms Mitchell, for the appellant, that the trial judge's failure to refer to the denial of guilt as being also an exception to the rule against hearsay constituted a misdirection.

[4] The question remains, however, whether in the circumstances that misdirection resulted in a miscarriage of justice. That question we answer in the negative. In that regard, it was a matter of agreement that, in a short closing speech to the jury, the solicitor advocate appearing for the appellant focused his remarks almost entirely in an attack on the credibility of the main Crown witnesses and, in particular, made no reference whatever to the denial contained in the police interview now founded upon. We can well understand why that would be so bearing in mind that the appellant's assertion to the police that he had been at home on the night in question had been entirely discredited by the unchallenged evidence anent his attendance at hospital. At all events, we are quite satisfied that, at least by the time the trial reached its completion, the misdirection in question had no determinative significance and that this appeal must accordingly be refused.

DL