Barry Hughes V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Eassie,Lord Wheatley |
| Judgment Date | 13 April 2010 |
| Neutral Citation | [2010] HCJAC 33 |
| Court | High Court of Justiciary |
| Published date | 14 April 2010 |
| Docket Number | XJ1438/08 |
| Date | 13 April 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Eassie Lord Wheatley Lord Philip | [2010] HCJAC 33 Appeal No: XJ1438/08 OPINION OF THE COURT delivered by LORD WHEATLEY in STATED CASE by BARRY HUGHES Appellant; against PROCURATOR FISCAL, GLASGOW Respondent: _______ |
Appellant: McBride, QC; Barony Law Practice
Respondent: McSporran, AD; Crown Agent
13 April 2010
[1] The appellant was charged on a summary complaint at the instance of the respondent which reads:
"On 14 July 2007 at One Up Nightclub, Royal Exchange Square, Glasgow, being a public place, you BARRY HUGHES did have with you an article to which Section 49 of the aftermentioned Act applies, namely a knife
CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 49(1)."
[2] The trial took place on 15 July, 16 July and 13 August 2008. The respondent was represented by Mr E Targowski, QC. After hearing the evidence and submissions, the presiding sheriff found the appellant guilty as charged.
[3] The evidence for the Crown appears to have been straightforward. Two police officers on routine uniform foot patrol in Royal Exchange Square, Glasgow entered the premises of the One Up Nightclub after they learned of a disturbance there. They observed the appellant and another man, Ryan Forrester, going towards the rear of the premises, and wanted to speak to them because they thought the two men might have been involved in the disturbance. They saw the appellant and Mr Forrester enter the male toilets. The police officers followed them into the toilets and saw the appellant and Forrester in a cubicle. They asked them to come out, pushing the closed (but unlocked) door of the toilet open as they did so. Mr Forrester was closer to the officers and the appellant was behind him. Following the request to leave the cubicle, both officers saw the appellant drop a knife from his left hand onto the floor of the cubicle. The knife was a black-handled lock back knife, 20cms in length; the blade was 9cms and the handle was 11cms. When the knife was retrieved the blade was in the closed position. The knife was sharp, double-edged and pointed, and its locking mechanism was in working order.
[4] The appellant gave evidence on his own behalf and strenuously denied that he had ever been in possession of the knife. He lodged a Notice of Incrimination of Ryan Forrester. He maintained that he had gone into the toilet following an earlier disturbance in the adjoining Karaoke Bar (which appears to be part of the One Up Nightclub), and as he was about to shut the door he noticed Mr Forrester behind him. Mr Forrester put his hand into his inside pocket and pulled out a knife. The appellant said that he grabbed Mr Forrester by the wrist and the knife fell to the floor. He maintained that the police officers did not see him in possession of the knife. In addition, he said that the police officers could not have seen him with the knife because Mr Forrester, who is of a large build, was between him and the officers. Mr Forrester also gave evidence and confirmed the appellant's account, maintaining that he alone had been in possession of the knife. In the event, the presiding sheriff rejected the evidence of the appellant and Mr Forrester as incredible, and accepted the evidence of the police officers which he found to be straightforward and convincing. The appellant had no good reason or lawful authority for having the knife with him in a public place. The sheriff therefore convicted the appellant.
[5] In applying for this stated case the appellant tabled several grounds of appeal, three of which passed the sift. These three grounds were broadly concerned with defective representation by the appellant's counsel. The first of these grounds (2c) concerned counsel's failure to lead evidence from a duly cited defence witness, Andrew Hamilton, who in a statement available to the defence said that prior to the entry of the police officers, Ryan Forrester had been involved in an altercation with a third party in the Karaoke Bar within the premises, in the course of which he had seen Mr Forrester put something shiny, which could have been a knife, back into his pocket. At that time the appellant was some distance away. This evidence, it is said in the ground of appeal, was highly relevant as it would have supported the appellant's contention that it was the incriminee who dropped the knife on the toilet floor a short time later. The appellant, in an affidavit now lodged in the appeal, claims that in discussions with senior counsel and his solicitors before the trial, he was provided with statements from a number of defence witnesses including Andrew Hamilton, whom he did not know, and he had understood that these witnesses would be called to give evidence in his defence. He believed that Andrew Hamilton was a crucial witness. He further maintained that during the trial he asked when Andrew Hamilton was to be called and was told either by his counsel or his solicitor that this would happen later. In the affidavit, the appellant makes a number of other complaints about the presentation of his case at the trial, but these relate to the other two grounds of appeal. In his response to these claims in respect of the first ground of appeal, trial counsel has tendered a statement in which he explains his decision not to call Andrew Hamilton as a witness. He took the view that the witness's evidence would not help the...
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