David Peter Gallagher V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith,Lord Justice Clerk,Lord Justice General,Lord Eassie,Lord Osborne |
| Judgment Date | 17 December 2010 |
| Neutral Citation | [2010] HCJAC 130 |
| Published date | 17 December 2010 |
| Docket Number | XC237/09 |
| Court | High Court of Justiciary |
| Date | 17 December 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Justice Clerk Lord Osborne Lord Eassie Lord Nimmo Smith | [2010] HCJAC 130 Appeal No: XC237/09 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in Appeal by DAVID PETER GALLAGHER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Lamb, Q.C., Gilbride; Paterson Bell, Edinburgh
Respondent: Cherry, Q.C., A.D.; Crown Agent
17 December 2010
The issue
[1] The issue which falls for decision in this appeal is the meaning of the expression used in section 266(4)(c) of the Criminal Procedure (Scotland) Act 1995 - viz, "the accused has given evidence against any other person charged in the same proceedings".
The procedural history
[2] The appellant was convicted after trial of the murder of Jason McMenamin. He was tried along with his brother, Francis Patrick Gallagher ("the co-accused"), who was charged with the same offence. The co-accused was acquitted by the jury. Prior to the trial the appellant lodged a special defence of alibi, his position being that, although he had been in his brother's company earlier on the day in question, he had left him and was elsewhere at the time of the murder. The co-accused, on the other hand, lodged prior to the trial a notice of incrimination against the appellant asserting that the latter had alone attacked the victim. At the trial the appellant maintained his special defence and the co-accused maintained his incrimination of the appellant.
[3] The appellant was the first accused. During the Crown case his counsel was careful to avoid asking any of the Crown witnesses questions, the answers to which might suggest that the co-accused had committed the crime charged. After the Crown case was closed, the appellant himself gave evidence in his own defence. That evidence was consistent with his alibi, namely, that at the time of the murder he was elsewhere; it was diametrically inconsistent with the co-accused's contention that he (the appellant) had been present at the locus of the crime and had assaulted the victim. In the course of cross-examination of the appellant counsel for the co-accused indicated to the court that he wished to raise a legal matter outwith the presence of the jury. The jury retired. A debate then ensued as to whether it would be proper in the circumstances for counsel for the co-accused to put to the appellant his previous convictions. In opposing that course of action counsel for the appellant argued that a successful defence of alibi for the appellant would not automatically mean conviction for the co-accused; the appellant had not intentionally damaged or harmed the defence of the co-accused or supported the Crown case. Counsel for the co-accused argued that the evidence of the appellant undermined the defence of the co-accused and that in these circumstances he was entitled to put the appellant's previous convictions to him.
[4] So far as appears from the minutes, no ruling was given by the court at that stage but, proceedings having resumed before the jury and counsel for the co-accused having put to the appellant that he was "a serious man of violence", an objection to that line of evidence was taken by counsel for the appellant. That objection was repelled. Thereafter counsel for the co-accused put the appellant's record to him.
[5] We were informed that, in substance, the whole record was put to him, no discrimination being made between offences importing dishonesty and other offences (including offences importing violence). The appellant had a long list of previous convictions, stretching from 1988 to 2004. These included a conviction for theft by housebreaking and three convictions for attempting to pervert the course of justice. They also included convictions for serious violence: a conviction in 1990 in the High Court for assault and robbery, for which he was sentenced to two years' detention, and a conviction in the High Court in 1998 for assault to severe injury and permanent disfigurement, for which he was sentenced to five years' imprisonment. He was also convicted in 1997 of a contravention of section 1 of the Prevention of Crime Act 1953 (possession of an offensive weapon) and in 2003 of a contravention of section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (to the like effect); in respect of each of these convictions he was sentenced to three months' imprisonment. Additionally, he had been convicted on numerous occasions (one of them in solemn proceedings) of drugs offences and on a number of occasions of breach of the peace. The burden of the cross-examination appears to have been directed to demonstrating that the appellant was a man of violence, which he ultimately - in face of his record - accepted. It was suggested to him by the cross-examiner that this went some way to explaining his behaviour in assaulting the victim, a suggestion which the appellant denied.
[6] Having been convicted the appellant, with leave, appealed to this court. The second ground of appeal was that the trial judge "erred in the exercise of his discretion in allowing counsel for the co-accused to disclose the previous convictions of the appellant". This ground was initially heard by a bench of three judges who remitted it to a larger bench. Part of the remit envisaged appears to have been a possible challenge to the ruling in McCourtney v HM Advocate 1977 JC 68 that, where section 141(f)(iii) of the Criminal Procedure (Scotland) Act 1975 (the pre-cursor of section 266(4)(c) of the 1995 Act) applied, a trial judge had no discretion to refuse to the co-accused the right to examine the accused as to his criminal record. At the opening of this appeal Mr Lamb, for the appellant, made it plain that he was not to advance any argument in relation to the availability of a discretion. This was in part because Parliament had, in passing the Criminal Justice Act 1995, revisited section 141 of the 1975 Act. It had by section 24(1)(b) of the former Act inserted into the latter a new subsection (1A) which had made the prosecutor's right under paragraph (f)(ii) subject to the discretion of the court. No equivalent provision had been made in respect of sub-paragraph (iii). The implication was that Parliament was content with the ruling in McCourtney.
Submissions for the appellant
[7] Mr Lamb's challenge was to the interpretation of what was then section 1(f)(iii) of the Criminal Evidence Act 1898 favoured by the House of Lords in the English appeal in Murdoch v Taylor [1965] AC 574. The leading speech was delivered by Lord Donovan who had accepted, subject to modification, the interpretation of the subparagraph favoured by the Court of Appeal in Reg. v Stannard [1965] 2 QB 1. That, as so modified, was that "evidence against [a co-accused]" meant "evidence which supports the prosecution's case in a material respect or which undermines the defence of the co-accused" (per Lord Donovan at page 592).
[8] Mr Lamb submitted that that "test" was too widely stated. The proper scope of "evidence against [a co-accused]" was evidence upon which the Crown could found in seeking a conviction of the co-accused. It was inconceivable that Parliament had intended to put an accused in the impossible position of either not testifying in support of his defence of alibi or being exposed during such testimony to his whole criminal record being disclosed at the instance of his co-accused. Murdoch v Taylor had subsequently been applied in England, including in Reg. v Varley [1982] 75 Crim App R 242, where Kilner Brown J in giving the judgment of the court had referred at page 246 to six established principles which were relevant. The fourth of these was as follows:
"If consideration has to be given to the undermining of the other's defence care must be taken to see that the evidence clearly undermines the defence. Inconvenience to or inconsistency with the other's defence is not of itself sufficient."
While in the present case the appellant's testimony was no doubt inconsistent with the co-accused's defence, it did not undermine it. Reference was also made to Reg. v Davis [1975] 1 WLR 345, R v Bruce (1975) 61 Crim App R 123, Reg. v Crawford [1997] 1 WLR 1329 and R v Kirkpatrick [1998] Crim LR 63. In Reg. v Adair [1990] Crim LR 571 at page 572 Ward J had spoken of an accused who would have "dropped [his co-accused] completely in it". In Scotland the Murdoch formulation had been referred to, but no definitive ruling had been given. In McCourtney the court had been prepared to adopt that formulation while being careful not to express any opinion on its correctness (pages 72-3). In Burton v HM Advocate 1979 SLT (Notes) 59 the court had apparently adopted the Murdoch test without hearing full argument on it. Doubts about it had been expressed by Lord Hunter and by Lord Dunpark in Sandlan v HM Advocate 1983 JC 22. Reference was also made to Barnes v HM Advocate 2001 JC 61 and Leggate v HM Advocate 1988 JC 127.
Submissions for the Crown
[9] The Advocate depute submitted that the proper approach to the legislation was to interpret the words used in their context, purposively. The words used should be given their ordinary and literal meaning, which here was their ordinary and natural meaning. The interpretation favoured in Murdoch v Taylor was consistent with that approach. It was not accepted that evidence "which undermines the defence of the co-accused" was a...
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