Hugh Mullen V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Emslie,Lord Brodie,Lord Justice Clerk |
| Judgment Date | 07 June 2011 |
| Neutral Citation | [2011] HCJAC 55 |
| Docket Number | XC518/10 |
| Date | 07 June 2011 |
| Court | High Court of Justiciary |
| Published date | 07 June 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Emslie Lord Brodie | [2011] HCJAC 55 Appeal No: XC518/10 OPINION OF THE LORD JUSTICE CLERK in the Appeal by HUGH MULLEN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: McConnachie, QC; Capital Defence Edinburgh
Respondent: Ferguson, QC AD; Crown Agent
7 June 2011
Introduction
[1] On 18 May 2010 at the High Court in Dundee the appellant was convicted by a unanimous verdict of the following charge:
"on 13 March 2009 at Myrtle Park, Blairgowrie you HUGH SNEDDON MULLEN and RICHARD SNEDDON MULLEN did assault Daniel Campbell Beattie or Crowe ... and strike him repeatedly on his head and body with golf clubs or similar implements, to his severe injury, permanent disfigurement and you did attempt to murder him and you HUGH SNEDDON MULLEN did rob him of a ring"
The appeal is based on the decision of the Supreme Court in Cadder v HM Adv (2010 SLT 1125).
The evidence
[2] The complainer's evidence was that the appellant and his brother, the co-accused, assaulted him at the locus in the manner libelled. His ring was taken from him as he lay unconscious.
[3] A neighbour, Fiona Anderson, saw the incident. She identified the appellant as one of two men who repeatedly struck the victim with golf clubs or similar implements. Kenneth Kidd, another neighbour who saw the incident, identified a distinctive striped jumper as having been worn by the co-accused. Miss Anderson and Mr Kidd said that they saw the two assailants leave the scene by a footpath in the general direction of Jessie Street.
[4] The witness William Whytock was at the Jessie Street end of the footpath. He said that two men passed him carrying what he thought were sticks. A short time later, when a police car arrived, he saw the men go back in the direction from which they had come. The witness Samuel Adams was nearby in Harriet Row. He said that he saw a man, whom he identified as the appellant, running away from a police car. He then saw the appellant and the co-accused jumping over a wall and heading towards Emma Street. Police officers thereafter found the appellant and the co-accused together in Emma Street. The co-accused was wearing the distinctive top which the witness Kenneth Kidd had identified. Another officer found two golf clubs in bushes at or near the corner of Jessie Street and Harriet Row, close to the footpath from the park.
[5] The appellant was detained at around 11.50pm and taken to Divisional Police Headquarters in Perth. At 4.20am he was arrested. He was cautioned, made no reply and was returned to his cell.
[6] DC James Thomson and DS Graeme Binnie were present at the cell. At that point, according to DC Thomson, the appellant said "I only want to speak to one of you." DS Binnie left the cell. The appellant then said to DC Thomson:
"I was there to get Tommy Hill. I was outside shouting and Daniel came out. I only hit him on the legs. I saw his cheek all bashed in. I held him and said Daniel, Daniel. I don't want to drop my brother in it."
[7] DC Thomson and DS Binnie later interviewed the appellant under caution. They put to him that in the cell he had said to DC Thomson the words that I have quoted. The appellant denied that. He denied that he had been involved in the assault in any way.
[8] The complainer's ring was found in the toilet in the appellant's cell.
[9] At the trial the appellant's defence was that he had been present during the assault but had not taken part in it. He did not give evidence. In his speech to the jury the advocate depute outlined the evidence that I have summarised, other than the evidence of the admission to DC Thomson in the cell. He said that, taking all of that evidence together, the jury would be entitled to convict both accused, He then said:
"On top of that, you also have the evidence of DC Thomson of the admission by [the appellant] that he did strike the complainer. Even if you reject that piece of evidence there is enough, in my submission, in the rest of the evidence for guilt to be brought home to both accused."
He said no more about the alleged admission.
The appeal
[10] The ground of appeal is that the evidence of the admission allegedly made by the appellant in his cell was led by the Crown...
To continue reading
Request your trial
-
Michael Martin Hodgson V. Her Majesty's Advocate
...derived from interrogation. The same emphasis can be seen in paragraph 13 of the opinion of Lord Justice Clerk in Mullen v HM Advocate [2011] HCJAC55, 2011 SCCR 438, and paragraph 80 of the judgment of Lord Brown in Ambrose v Harris [2011] UKSC 43, 2011 SCCR 651. [11] Having reviewed again ......
-
Joseph Michael Birnie V. Her Majesty's Advocate
...questioning and interrogation: cf paragraph [3] of Gilmour v HM Advocate, 12 January 2012, XC 750/11; Mullen v HM Advocate, 2011 SCCR 438, 2011 SLT 913. The precipitating factor here was not the police questioning during the prior interview, nor any pressure or inducement, but rather the in......
-
The Right to Legal Assistance During Detention
...e.g. Ahmad v HM Advocate [2011] HCJAC 16, 2011 SCCR 148; Mitchell v HM Advocate [2011] HCJAC 35). However, see also Mullen v HM Advocate [2011] HCJAC 55 (on admissions made prior to the start of formal questioning) and Jude v HM Advocate [2011] HCJAC 46 (on waiver). At the time of writing, ......