Callaghan v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Turnbull,Lord Pentland |
| Judgment Date | 19 January 2021 |
| Neutral Citation | [2021] HCJAC 4 |
| Court | High Court of Justiciary |
| Docket Number | No 15 |
[2021] HCJAC 4
Lord Justice General (Carloway), Lord Turnbull and Lord Pentland
Elsherkisi v HM Advocate [2011] HCJAC 100; 2011 SCCR 735; 2012 SCL 181; 2011 GWD 37-758
Kerwin v HM Advocate HCJAC, 30 March 2016, unreported
Lauder v HM Advocate [2016] HCJAC 30; 2016 SCL 459; 2016 GWD 19-337
McGrory v HM Advocate [2011] HCJAC 126; 2013 SCCR 113; 2013 GWD 10-216
Milroy (1839) Bell's Notes 291
Muirhead v HM Advocate 1999 SLT 1231; 1999 SCCR 11
Telford v HM Advocate [2014] HCJAC 128; 2015 SCL 136; 2014 GWD 38-697
Tobin v HM Advocate 1934 JC 60; 1934 SLT 325
Dickson, WG, A Treatise on the Law of Evidence in Scotland (3rd Grierson ed, T & T Clark, Edinburgh, 1887), vol I, para 363
Judicial Institute for Scotland, Jury Manual (Judicial Institute for Scotland, Edinburgh, 9 June 2020), p 34/118 (Online: https://www.judiciary.scot/docs/librariesprovider3/judiciarydocuments/judicial-institute-publications/export_jury_manual_2020-06-12_1429.pdf?sfvrsn=8c9918e4_2 (08 February 2021))
Justiciary — Procedure — Charge to jury — Misdirection — Confession by co-accused — Whether trial judge ought to have directed jury confession by co-accused did not constitute evidence against appellant — Whether misdirection
David Callaghan was indicted at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on an indictment libelling a charge of murder. He pled not guilty and a trial took place before Lord Woolman and a jury in the High Court of Justiciary at Glasgow. On 4 December 2019, he was convicted and, thereafter, sentenced to life imprisonment. He appealed against conviction to their Lordships in the High Court of Justiciary.
The appellant was charged with murder along with a co-accused. At trial, evidence was led that the co-accused had confessed to his participation in the attack against the deceased, but that another individual had stabbed the deceased first. The co-accused did not say who that individual was, but eyewitnesses identified the appellant at the scene with a weapon. The trial judge directed the jury that identification was a live issue and explained that the jury required to consider the evidence against each accused separately and to return separate verdicts. The appellant was convicted and appealed against that conviction.
The appellant argued that the trial judge ought to have directed the jury that the confession was only relevant to the co-accused and that, had the jury been so directed, a different result may have followed. It was contented that the misdirection was material and gave rise to a miscarriage of justice.
Held that: (1) while a statement made by one accused outwith the presence of another accused was admissible as a generality in a trial which proceeded against both accused as a statement against the interests of its maker, its incriminatory effect required to be restricted to the case against its maker and was inadmissible as evidence against that other accused, and in circumstances where the statement contained material which was incriminatory of another accused, a trial judge ought to direct the jury to disregard that element in so far as it was so incriminatory (paras 22, 23); (2) the statement by the co-accused had not been incriminatory of the appellant but had consisted of an account of the attack on the deceased by two men, which had not been in dispute; whether or not the confession lent some credence to the identification of the appellant and may have influenced the jury in regarding the eyewitnesses as credible and reliable more generally, the statement contained no material which could have been used to prove the appellant's involvement (para 24); (3) no direction to disregard the statement of the co-accused when considering the case against the appellant was either required or desirable (para 25); and appeal refused.
The appeal called before the High Court of Justiciary, comprising the Lord Justice General (Carloway), Lord Turnbull and Lord Pentland, for a hearing, on 19 January 2021.
Eo die, the opinion of the Court was delivered by the Lord Justice General (Carloway)—
Opinion of the Court—
[1] On 4 December 2019, at the High Court in Glasgow, the appellant was convicted, along with a co-accused, of the murder of Owen Hassan on 7 December 2018 by striking him on the head and body with machetes or similar instruments outside the Old Stag Inn, Greenview Street, Pollokshaws, Glasgow. He was sentenced to life...
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