David Alexander Hughes V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon,Lord Malcolm,Lord Clarke |
| Neutral Citation | [2010] HCJAC 84 |
| Year | 2010 |
| Published date | 17 August 2010 |
| Docket Number | XC272/09 |
| Court | High Court of Justiciary |
| Date | 17 August 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Clarke Lord Mackay of Drumadoon Lord Malcolm | [2010] HCJAC 84 Appeal No: XC272/09 OPINION OF THE COURT delivered by LORD CLARKE in NOTE OF APPEAL AGAINST CONVICTION by DAVID ALEXANDER HUGHES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: G Jackson QC, M Mackenzie; Gilfedder McInnes
Respondent: A Mackay AD; Crown Agent
17 August 2010
[1] The appellant was convicted on 20 February 2009 by a majority of the jury at the High Court in Glasgow of the following charge:
"On 4 June 2007 at Dobbies Garden Centre, Eastfield Road, Cumbernauld you DAVID ALEXANDER HUGHES did assault Andrew Best, formerly residing at 4 Westerlands Drive, Stirling and did repeatedly strike him on the head and body with a knife or similar instrument and kick him on the body, whereby he was so severely injured that he died later at Monklands District General Hospital, Airdrie and you did murder him"
The appellant had also faced charges of attempting to defeat the ends of justice and attempting to pervert the course of justice. Those charges were withdrawn by the Advocate depute at the close of the Crown case.
[2] The issue for the jury, at the trial, was whether or not, the appellant was responsible for the murderous attack on the deceased, Andrew Best, it being accepted that he was in the presence of the deceased at the time of the attack or whether the attack was committed by another person namely a former co-accused John Maguire, who had previously pled guilty to the culpable homicide of the deceased.
[3] The grounds of appeal all focus on evidence given by Mrs Ann Silva, the aunt of the appellant, and the direction which the trial judge gave in relation thereto. The grounds of appeal are in the following terms:
"There has been a miscarriage of justice in that the trial judge erred in directing the jury in the following regard:-
1. He directed the jury as to the law regarding a witness adopting a statement made by that witness as being true and that adopted statements becoming the evidence of the witness.
2. He, in particular, did that in relation to the evidence of Ann Silva.
3. There was evidence that Mrs Silva, who was the aunt of Mr Hughes, had made a statement to the police which contained a statement that Mr Hughes had said certain things to her which could reasonably be considered as an admission.
4. The trial judge allowed the jury to consider that Mrs Silva in her evidence in the trial had adopted that statement as being truthful. Reference was made to the charge at pages 38 to 42.
5. It was not open to the jury to conclude that Mrs Silva had adopted this statement as being true. When her evidence is read clearly and properly it would not be open for any reasonable person to reach any other conclusion other than that she had clearly and specifically denied that any such statement was true. To reach any other conclusion it is necessary to take things in her evidence totally out of context and in a completely unfair and reasonable (sic) manner. The reality is that Mrs Silva could never be said to have adopted such statements....
6. This amounts to a miscarriage of justice because the evidence of Mrs Silva was extremely important as clearly any 'admission' made to a relative would have a significant evidential value"
[4] Senior counsel for the appellant, in opening his submissions, accepted that, quite apart from the evidence of the witness Ann Silva, there was a sufficiency of evidence to support a conviction of the appellant of the murder. The alleged misdirection of the judge in relation to how the jury could look at the evidence of Ann Silva was, however, of such materiality that a miscarriage of justice had occurred. It should be noted that no objection was taken, at the trial, to any of the questions or the line of questioning put to this witness which was productive of the evidence complained about, nor was any submission made about the admissibility of that evidence at the trial. The examination in chief of the witness focused, to a very large extent, on a statement she had given to the police in July 2007 about events on the day of the murder. The appellant was living with the witness at that time at her home. When initially interviewed by the police the witness told the police that the appellant was at home with her at about 22.00 hours on 4 June 2007. She accepted, however, in a subsequent interview that that had been a lie and that she had said this because she thought the police were investigating a minor road traffic offence, when they first interviewed her, and that she had been trying to protect her nephew.
[5] The witness was interviewed subsequently by the police on 31 July 2007. That interview was tape recorded. The transcript of the interview is Crown label 26. When the Advocate depute sought to play the tape recording of this interview at the trial, and to have the jurors provided with copies of the transcript, the trial judge asked senior counsel for the appellant if he had any objection to such a proposal. Senior counsel, after an adjournment to enable him to consider the position, indicated to the court that he had no objection. The jurors were, thereafter, provided with copies of the transcript and the tape recording of the interview was played in court. In the interview the witness is recorded as saying among other things that the appellant had telephoned her on the evening of 4 June 2007 and had asked her to bring his clothes to his brother's home. She had explained to him that his clothes were still wet after she had washed them. She, nevertheless, put the wet clothes into a bag and made her way to the appellant's brother's house. She is recorded as saying that when she arrived there the appellant took the bag from her and said "A terrible thing has happened". During the telephone conversation that he had had with her regarding the bringing of his clothes he had also said "A terrible thing happened. I'll explain to you when I see you." The appellant told the witness when she arrived at the house of his brother that he thought a man had died. They had been arguing. He went on to say "I didnae mean tae dae it Auntie Ann, honest I didnae mean tae dae it." Mrs Silva went on to say, in her interview, that the appellant had said that he had gone to slash the guy and the guy had moved his head back and the appellant had caught his throat.
[6] The witness is then recorded as saying "And David said to me would I dae him a favour an' take Jim in the car but I never seen a car and, ah take him to the garage, an get the tyres changed." She continued "That was it. The next day, I cannae remember when I phoned Jim, if it was that night, I think it was that night, I'm sure it was that, I'm almost positive maybe it was that night. And I met Jim the next day and took him to the garage, left the car and went back the next day tae get it. That's all I know." She was later recorded in the interview as saying that the appellant's car was taken to a garage to have its tyres changed.
[7] The foregoing is a summary of the incriminating material heard in the taped interview and appearing in the transcript thereof. At the end of the interview the witness was charged with attempting to pervert the course of justice by causing the tyres of the appellant's vehicle to be changed knowing the vehicle had been used during the commission of a murder.
[8] In giving evidence in court, Mrs Silva said she had been threatened by the former co-accused John Maguire who had told her that her nephew had cut somebody and that he thought the man was dead and that she should not speak to the police.
[9] In examination in chief the witness, initially, denied that she had told the police that the appellant had admitted attacking the deceased. She then said she did not remember saying this but after the trial judge had drawn her attention to what she was heard to have said on tape she said "If that's what I said, that's what I said". She was asked if she had been trying to tell the truth when she gave the statement on 31 July and she responded "Yes". The Advocate depute reiterated that, as recorded in the interview, she had told the police that her nephew said he didn't mean it. She said she did not remember saying that. She was then asked "Do you accept that you were doing your best to tell the truth?". She replied "Yes". It was then put to her if it had been recorded then it must have been what she said and she agreed. She was again asked if it was the truth and she said "It must be. I don't remember". She admitted that she had heard the tape recording being played over in court. She was asked whether it contained a truthful account of matters which she gave to the police, to which she replied "Yes, to the best of my knowledge". She was then asked what that knowledge was based on and she replied "The truth".
[10] Mrs Silva was then asked once more about telling the police that the appellant said that he "did not mean it". She said she might have said that as it was written down and she had heard herself saying it on the tape but she then added that she did not know if it was true. She did not remember. She had recognised her voice on the tape and must have said what was recorded therein to the police. Asked, once more, if she had been telling the police the truth she replied "To the best of my knowledge, yes. I was very upset. I thought I was telling them the truth." Reference was once more made to the passages in the interview as recorded, concerning the appellant telling her "A terrible thing had happened" and that he would explain this when he saw her and that he did not mean to do it. Her position, in response, was that she now had no memory of the appellant saying these things. However when asked if, at the time she did say these things to the police, she was trying to tell the truth, she responded "Yes".
11] The witness was then asked ...
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