Appellant: Hughes, Rodger; Jim Friel & Co, Glasgow

Respondent: Brown QC AD; the Crown Agent

23 October 2014

Introduction

[1]        On 8 February 2013, at the High Court at Glasgow, the appellant was convicted of the murder of James Kerr, on 11 April 2012, at 8/2, 240 Lincoln Avenue, Glasgow, by striking him repeatedly on the head and body with a knife or knives, a sword or swords and a hammer, cutting off his ear, robbing him of mobile phones, bags and other items.  The deceased had been subjected to a particularly violent attack; a sword was found inserted through his chest cavity up into his skull.  The appellant was also convicted, along with his co-accused and partner, Lorraine Callaghan, of attempting to defeat the ends of justice by, amongst other things, setting fire to the body of the deceased and to the flat where the murder had taken place.  Ms Callaghan was acquitted of the murder.

[2]        On 8 March 2013, the appellant was sentenced to life imprisonment with a punishment part of 25 years. 

[3]        The appellant appeals against his conviction on the grounds that the trial judge failed to give the jury adequate directions on the evidential value of statements said to have been made by Ms Callaghan to the appellant’s mother outwith his presence.  He also appeals against the level of the punishment part.

Evidence

[4]        The evidence was that the appellant co-habited with Ms Callaghan at a flat in Lincoln Avenue, adjacent to the multi-storey block where the murder was committed.  They were both drug abusers.  The deceased supplied valium from his flat.  CCTV images showed the appellant and Ms Callaghan entering and leaving the block on two occasions in the late afternoon and early evening of the day of the murder.  A neighbour identified the appellant and a woman as having been at the door of the deceased’s flat at about 5.00pm.  The deceased had last been seen by his neighbours at about 7.00pm.  The CCTV images also showed the appellant and Ms Callaghan entering the foyer of the block at about 9.00pm, when they were not seen to be carrying anything.  Further images showed them entering the lift at about 11.30pm, when each was carrying a bag of one sort or another.  It was shortly before midnight that the fire services were called to attend at the deceased’s flat.  In the course of extinguishing the fire, they discovered his body.  The appellant and the co-accused were detained some 11 days later. 

[5]        The evidence against the appellant came first in the form of incriminating statements to Lee Qua, a nephew of Ms Callaghan.  Mr Lee had not previously met the appellant, but on the day after the offence Ms Callaghan had arrived unexpectedly at his flat with him.  Mr Lee asked the appellant and Ms Callaghan why they had come to his flat.  Ms Callaghan replied that something had happened, although she could not tell him what that had been.  Some time later the appellant stated that he had killed someone at the flats.  He said that he had cut the person’s throat, cut his ear off and just kept stabbing him.  He had done this with a knife.  He described sawing at the victim’s throat, almost cutting off the person’s head.  He said that he had stabbed the deceased in the head and all over his body.  The appellant described to Mr Lee how he and Ms Callaghan had stolen the deceased’s mobile phones, which Ms Callaghan had with her.  He went on to say that they had started burning stuff, flinging stuff on the body and tried to burn down the flat.  The fire alarm had sounded and the appellant and Ms Callaghan had left. 

[6]        The appellant and Ms Callaghan had returned to Mr Lee’s flat on the following Friday, when the appellant appeared agitated.  He kept saying, “He could easily do it again”.  Ms Callaghan kept telling the appellant to shut up.  She “more or less pushed him out the door” and then left. 

[7]        In short, if Mr Lee’s evidence were accepted, there was a confession by the appellant in relation to the murder that contained special knowledge which, it transpired, was consistent with forensic and pathological evidence otherwise led in the course of the trial.  Although it was not mentioned in the trial judge’s report, the appellant’s DNA was found in a blood spot on the deceased’s hand; one obvious inference from which was that the appellant had had contact with the deceased when the deceased had been bleeding. 

[8]        The evidence from the appellant’s mother was that she had met the appellant, and Ms Callaghan, unexpectedly, in a shop in Glasgow some time after the murder.  They had gone up to her flat, where Ms Callaghan had spoken to her in a bedroom.  She had said, “I’ve done something terrible.”  She continued, “I’ve done a terrible thing, I’ve killed somebody.”  She told the appellant’s mother that she had moved the body and cleaned up blood.  When referred to her police statement, the appellant’s mother confirmed that, during the same conversation, Ms Callaghan had told her that “they had burned it”, referring to a suitcase taken from the flat.  “Del had stabbed the guy and it was horrible”.  At an early stage during the mother’s testimony, counsel for the appellant had requested the advocate depute to clarify specifically whether the appellant had been present during this conversation because, as the trial judge acknowledged at the time, this would have certain consequences.  The appellant had not been in the room at the time.

[9]        It is worthy of some note that the appellant had lodged an incrimination of a third party, whose DNA had been found in several places in the deceased’s flat.  This person had admitted having previously been in the flat, although not on the day in question.  Evidence at the trial from the police, who had examined CCTV images at both the locus of the murder and this person’s own flat, had effectively excluded his involvement in the murder. 

[10]      The appellant gave evidence in which he admitted being in the block on the day of the murder, but denied ever having been inside the flat itself.  He knew the deceased as he used to buy drugs from him.  He had visited the deceased’s flat on the day of the offence in order to buy valium, but the deceased had been unable to supply him with any.  He had returned to his own flat.  Later that day he had gone back to the block in order to buy drugs from someone else.  He had bought heroin.  He and Ms Callaghan had smoked it on the back steps of the block over a period of about 2½ hours.  Ms Callaghan had gone upstairs to dispose of the burnt tin foil and wrappers.  When she returned she was carrying a shopping bag and a black briefcase, which she claimed to have found in the bin room. 

[11]      Ms Callaghan also gave evidence.  She had gone to the deceased’s flat with the appellant in order to discuss buying drugs.  The deceased had had swords and knives on display in his flat.  She had left the flat about an hour and a half later with, she thought, the appellant following.  When she reached the lift, she noticed that the appellant was not with her.  She walked back to the flat and heard “thumping and bumping in the hall”.  The appellant eventually emerged after about 30 or 40 minutes carrying two bags.  On the stairs the appellant had said to her, “I’ve done that c..t in and set his hoose on fire”.  He said that he had stabbed the deceased in the heart.  He had tried to “cut his heid aff” and had been “stabbing him in the chest to make sure he was dead”. 

[12]      Ms Callaghan had been judicially examined and had given an account broadly similar to her later evidence.  Both Ms Callaghan and the appellant had given statements to the police during the course of interviews in which, again, they had provided information broadly similar to their testimony later in court.

Charge

[13]      The trial judge directed the jury in the proper use of statements made by the co-accused outwith the presence of the appellant, but only in relation to the statements made by the co-accused in her judicial examination and in her police interview.  He said:

“What Lorraine Callaghan had said in her judicial examination and declaration, and in the police interviews … in relation to both accused, was obviously said outwith the co-accused’s presence.  It was said outwith the other person’s presence.  What Lorraine Callaghan said in the judicial examination and declaration can be used for the purpose that I have just defined for you [i.e. assessing the credibility and reliability of the co-accused]… I’ve just explained for you.  But it’s not evidence for or against [the appellant].  Similarly, anything each of the accused said about each other in their police interviews is not evidence against the co-accused.  It can be used for the purposes which I identified earlier on, but it’s not evidence for or against the co-accused. 

Now the reason for that rule is fairly straightforward.  It’s because the co-accused wasn’t present when the statement was made.  The co-accused, therefore, didn’t have the chance, the opportunity to admit, deny or comment on what was said.  It’s really just a question of fairness.  It wouldn’t be right to take that into account as part of the evidence for or against the co-accused.”

Submissions

[14]      In his case and argument, and in oral submission, the appellant contended that the trial judge’s directions had been inadequate to allow the jury to determine what use could be made of the statements made by the co-accused to the appellant’s mother   That evidence had been sufficiently distinct, from Ms Callaghan’s judicial declaration and her police interview, such that a separate direction had been required. 

[15]      The statements made by the co-accused to the appellant’s mother were statements against the appellant’s interests.  Where such statements are made by one co-accused outwith the presence of another, a trial judge is required to direct the jury as to the use to which they can be put (Muirhead v HM Advocate 1999 SLT 1231 at 1232; Taylor v HM Advocate 2011 SCL 628; and Black v HM Advocate 1974 JC 43).           

[16]      The appellant accepted that there had been sufficient evidence, without reference to the statement to the appellant’s mother, upon which the jury would have been entitled to convict.  The statements were not essential for conviction.  That was not relevant, however, to the question of whether there had been a miscarriage of justice (McNicol v HM Advocate 1993 SCCR 242; McGrory v HM Advocate 2013 SCCR 113; and cf Docherty v HM Advocate 2014 HCJAC 94).  The statements had been important evidence for the jury to consider, being made by the co-accused to the appellant’s mother.  In light of the relationship between the persons involved, the jury may have given the statements undue weight.  In the absence of a separate direction, the jury may have used the content of the statements incriminating the appellant as if it were evidence against him.  

[17]      The advocate depute responded that, although there had been a misdirection, it had not been a material one nor, in the context of the trial as a whole, could it be said that a miscarriage of justice had occurred (Docherty v HM Advocate [2014] HCJAC 94).  It was not contended that the judge’s directions in relation to the judicial examination and police interviews had been wide enough to encompass the value of the statements made to the appellant’s mother.  However, as distinct from the position in both Muirhead and Taylor, the Crown had not relied on these statements in the case against the appellant.  Rather, the compelling evidence, which existed against the appellant, came from the special knowledge confession, the DNA and the subsequent steps proved to have been taken to conceal the crime.

Decision

[18]      At the stage of their deliberations, after all the evidence had been heard, including that of Ms Callaghan, any issue of what Ms Callaghan had told the appellant’s mother in relation to the appellant, would have been of peripheral, if any, evidential value.  By that time Ms Callaghan had testified to what had happened; this involving the appellant going back to, or remaining in, the flat and emerging some time later and confessing to having murdered the deceased.  The evidence of what she had earlier said to the appellant’s mother may be seen as contradicting her evidence, at least in part, in so far as it suggested that she had been in the flat when the murder had been committed, but it did not add much more.  The jury had also by this time heard the evidence of a fairly detailed confession by the appellant to Mr Lee.

[19]      Although there was the incrimination of the third party, based upon the finding of his DNA in the deceased’s flat, that party had effectively been excluded from involvement by the CCTV images.  The reality therefore was, at trial, that it had been established that one or other, or both, of the accused had been responsible for the death of the deceased.  The issue for the jury was whether they had a reasonable doubt about the involvement of each in the death.  That essentially depended upon their own testimony about their particular involvement coupled, in the case of the appellant, with the evidence of the special knowledge confession to Mr Lee and the finding of his DNA on the blood spot on the deceased’s hand. 

[20]      The Crown, correctly as a matter of law, did not rely on the evidence of what Ms Callaghan had said to the appellant’s mother in the case against him.  That evidence was only of value as a confession by Ms Callaghan to her involvement in the murder.  The incrimination of the appellant in the course of any statement to the mother, which the jury must, in any event, have rejected at least in part, could only have had a minimal impact, if any, on their deliberations in respect of the appellant.

[21]      The court accepts that there was a misdirection in respect that, technically, having restricted his comments on statements outwith an accused’s presence to the judicial examination and police interviews, there ought to have been specific reference by the trial judge to the conversation with the appellant’s mother.  However, looking at the context of the trial, as the court must (Docherty v HM Advocate 2014 HCJAC 94 (LJG Gill) at para 33), it cannot be said either that the misdirection was a material one or that a miscarriage of justice has occurred as a result.  The appeal against conviction, therefore, is refused.

Sentence

[22]      The trial judge selected the punishment part in light of the appellant’s significant previous convictions.  These included: a sentence of 3 years for assault and robbery imposed at the High Court in December 2000; a further sentence of 3 years for assault and robbery imposed at Jedburgh Sheriff Court in 2003; and a sentence of 6 years imposed at the High Court for assault and robbery in March 2006.  The judge took into account the degree of violence used in the attack, including the fact that weapons were used and that the body had been set on fire, as part of the criminal activity.  He did not consider that premeditation had been entirely absent.    Whilst the forensic evidence had indicated that a number of the wounds had probably been inflicted on the deceased after death, the judge did not consider that the appellant would, or could, have been aware of this fact when he had been perpetrating the attack. 

[23]      Under reference to the guidelines in HM Advocate v Boyle 2010 JC 66 and to the specific examples of Cameron v HM Advocate 2011 SCL 633 and HM Advocate v Williamson 2011 SCL 49, it was submitted that the punishment part was nevertheless excessive.  There had been no or little premeditation.  Most of the deceased’s injuries had been inflicted after death.  The crime had not therefore warranted the imposition of a punishment part at the upper end of the “scale”.  The trial judge had placed too much weight on the nature of the injuries and the record.  There were mitigatory factors involved.  This was not a case involving firearms.  It was not one where the appellant had armed himself with a weapon in advance.  The deceased was not a child or a vulnerable adult, nor a person acting in the line of duty. 

[24]      In Boyle it was said that other than in “exceptional cases” the punishment part for a murder involving the use of a knife ought to be at least 16 years (LJG (Hamilton) delivering the Opinion of the Full Bench at para [16]).  The court has given due consideration to all the circumstances.  The appellant is now aged 33.  He has significant previous convictions for violence.  This was clearly a particularly brutal murder in the deceased’s own house, using weapons.  It was also aggravated by the steps taken to conceal the crime thereafter.  Accordingly, a very significant punishment part, well in excess of the 16 years referred to for knife crime in Boyle, was merited in order to meet the statutory requirements for retribution and deterrence (Prisoners and Criminal Proceedings (Scotland) Act 1993, s 2(2)).  Nevertheless, this was a murder involving a single victim, who did not fit into any special category of vulnerability.  In all the circumstances, the court does consider that the punishment part selected was excessive.  It will quash the period of 25 years and substitute one of 20 years.