Johnston v HM Advocate [Appeal Court, High Court of Justiciary]
| Jurisdiction | Scotland |
| Judgment Date | 07 April 2011 |
| Neutral Citation | [2011] HCJAC 32 |
| Date | 07 April 2011 |
| Docket Number | No 9 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Reed, Lord Mackay of Drumadoon, Lord Emslie
Justiciary - Evidence - Admissibility - Hearsay - Statement by accused outwith presence of co-accused - Common enterprise exception - Statement by accused made several days after murder but suggesting there had been a common criminal purpose before the murder - Whether admissible as evidence against co-accused
Justiciary - Procedure - Charge to jury - Evidence - Common enterprise exception to hearsay rule - Statement by accused outwith presence of co-accused made several days after murder but suggesting there had been a common criminal purpose before the murder - Whether admissible as evidence against co-accused - Whether misdirection - Whether miscarriage of justice
The appellant and his co-accused were found guilty of murder. At the trial there was evidence that the appellant had summoned the deceased from a bar, that the appellant was angry at the time and that he had a knife in his waistband. There was evidence that both accused had been at the locus during the assault on the deceased. The forensic evidence suggested that the deceased had been the victim of a concerted attack, with one person holding him while another stabbed him repeatedly. The appellant's jacket had blood which matched that of the deceased on the inside of the sleeve. There was evidence from which the jury could conclude that at least two knives were used in the assault, one of which was found near where the appellant left the scene with the other being found at a hotel where both accused met after the assault. At the hotel the appellant asked a witness to give him a false alibi, and indicated to the witness that he had stabbed the deceased in the abdomen. The witness saw the appellant cleaning blood off his shoe. The witness also heard an exchange between both accused consistent with their being implicated together in the crime. Both accused spent the night at the co-accused's flat. The appellant subsequently sent a letter to the co-accused's solicitor admitting his guilt. Six days after the murder the co-accused told another witness, Mrs Hannay, that he had been involved in the murder. The co-accused told Mrs Hannay that he had been standing at the end of the lane in case anyone came past and that the deceased was being assaulted by the appellant but that the co-accused did not realise anything else until he heard metal falling on the ground. The co-accused also told Mrs Hannay that the appellant had telephoned the co-accused before the murder and asked for a knife. The trial judge directed the jury in relation to statements made by one accused outwith the presence of another accused not being evidence against the person who was not present, but that if they were satisfied that both accused were acting in concert, then anything spoken by either of them in connection with their common criminal purpose was admissible in evidence against both, and the trial judge referred to Mrs Hannay's evidence about the telephone call asking for a knife. The appellant appealed, inter alia, on the ground that the trial judge had misdirected the jury in relation to Mrs Hannay's evidence concerning the co-accused's statement to her about the telephone call.
Held that: (1) the common enterprise exception to the hearsay rule is confined to evidence of things said in furtherance of the common purpose, and cannot therefore apply to statements, claims or allegations made after the common purpose has been achieved or has failed, and Mrs Hannay's evidence about the statements made by the co-accused several days after the murder was not admissible as evidence in the case against the appellant and the trial judge had misdirected the jury (para 42); (2) if the jury accepted not only that Mrs Hannay's account of what she had been told was correct but also that the co-accused had been telling her the truth about the telephone call, that evidence may have been thought to add to the case of concert, but there was a wealth of other evidence of a more compelling and immediate character to support the conclusion that the deceased had been stabbed to death in a concerted attack in which the appellant had participated, and there were also reasons why a jury might have rejected this particular item of evidence, or at least hesitated to accept it, and considering the evidence as a whole, the case against the appellant was overwhelming and there was no real possibility that the verdict would have been any different if the jury had not been misdirected (paras 45, 46); and appeal refused.
William Johnston was charged along with a co-accused on an indictment the libel of which set forth, inter alia, a charge of murder. He pled not guilty and the cause came to trial before Lord Hardie and a jury in the High Court of Justiciary at Forfar. On 28 March 2002, he was found guilty of murder and sentenced to life imprisonment. He appealed against conviction to their Lordships in the High Court of Justiciary.
Cases referred to:
Advocate (HM) v Docherty 1980 SLT (Notes) 33
Dickson v HM AdvocateUNK [2005] HCJAC 39; 2005 SCCR 344
Hamill v HM AdvocateSCUNK 1999 JC 190; 1999 SLT 963; 1999 SCCR 384
R v Blake and TyeENRENRUNK (1844) 6 QB 126; 115 ER 49; 13 LJMC 131; 8 Jur 666
Textbooks etc. referred to:
Dickson, WG, A Treatise on the Law of Evidence in Scotland (3rd Grierson ed, T&T Clark, Edinburgh, 1887), vol 1, para 363
Phipson, SL, Evidence (17th Malek et al ed, Sweet and Maxwell, London, 2010), paras 31-49
The cause called before the High Court of Justiciary, comprising Lord Reed, Lord Mackay of Drumadoon and Lord Emslie, for a hearing.
At advising, on 7 April 2011, the opinion of the Court was delivered by Lord Reed-
Opinion of the Court-
[1] On 28 March 2002 the appellant was found guilty by a unanimous verdict of the jury on the following charge:
'(4) On 16 March 2001 at Exchange Lane, Aberdeen you DAVID SMITH WATT KENNEDY and WILLIAM JOHNSTON did assault George William Simpson, repeatedly punch and kick him on the head and body, repeatedly stamp on his head and repeatedly strike him on the body with knives or similar instruments, rifle his pockets and rob him of a tobacco tin and a mobile telephone and you did murder him.'
[2] On 14 March 2002, at the close of the Crown case, the Advocate-depute withdrew charges 1, 2, 3 and 5 (a charge of assault, two charges of possessing controlled drugs, and a charge of perverting the course of justice), leaving only the murder charge. The appellant's co-accused was also found guilty on charge 4. In 2003 the appellant appealed against his conviction. The appeal has taken an exceptionally long time to be heard, for reasons which it is unnecessary for present purposes to consider, and for which those who represented the appellant at the hearing of the appeal bear no responsibility. The appellant's co-accused was refused leave to appeal against his conviction.
[3] At the trial there was evidence to the following effect about the events of 16 March 2001.
[4] The body of the deceased, George (or 'Dod') Simpson was found in Exchange Lane, Aberdeen at or about 00.35 hrs on 17 March 2001. The deceased was covered in blood. His pockets had been turned inside out. Later analysis of the deceased's clothing disclosed damage to two pockets consistent with someone trying to get something out those pockets.
[5] The deceased had sustained multiple stab wounds: (1) a stab wound to the right side of the chest which penetrated the lung and the aorta; (2) two stab wounds to the right side of the upper abdomen which penetrated the liver and gall bladder; (3) a stab wound on the right forearm towards the elbow; (4) a relatively superficial small sharp force injury on the back; and (5) a trivial incised wound on the surface of the left hand. The wounds to the abdomen were above the trouser belt and seemed to go upwards. The deceased had also sustained serious blunt force injuries principally involving the head. There was a constellation of features (petechial haemorrhages, a fabric pattern and small marks over the right jaw) which raised the possibility of partial or attempted strangulation as part of a sustained assault on the deceased. There were no defensive injuries. The deceased had died as a result of the stab wounds to his chest and abdomen. The pattern of the stab wounds suggested that they had been inflicted while the deceased was unable to move, either because he was unconscious or because he was being held. The signs of strangulation were consistent with the deceased being held by an arm across his throat, or by his own clothing being pulled backwards.
[6] The deceased was a well-built man, and a former boxer. He had ingested a moderate amount of alcohol. Although traces of drugs were found, no drug was active in his blood system at the time. That evening, the deceased had a considerable amount of money on him, possibly £200 or more.
[7] Exchange Lane is an unlit lane which runs between Hadden Street at the north and Trinity Lane in the south. In the vicinity are a number of bars, including Rabbie's Bar in Hadden Street, the Snuggery and the St Andrews in Market Street, and the Metro Hotel, also in Market Street.
[8] CCTV footage included the following sequences. At or...
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