Derek Telford Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lady Paton,Lord Bracadale |
| Neutral Citation | [2014] HCJAC 128 |
| Year | 2014 |
| Date | 23 October 2014 |
| Court | High Court of Justiciary |
| Docket Number | XC137/13 |
| Published date | 17 November 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY
| |
| Lord Justice Clerk Lady Paton Lord Bracadale
| [2014] HCJAC 128 XC137/13
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE
by
DEREK TELFORD Appellant;
against
HER MAJESTY’S ADVOCATE Respondent:
_____________ |
Appellant: Hughes, Rodger; Jim Friel & Co, Glasgow
Respondent: Brown QC AD; the Crown Agent
23 October 2014
Introduction
[1] On 8 February 2013, at the High Court at Glasgow, the appellant was convicted of the murder of James Kerr, on 11 April 2012, at 8/2, 240 Lincoln Avenue, Glasgow, by striking him repeatedly on the head and body with a knife or knives, a sword or swords and a hammer, cutting off his ear, robbing him of mobile phones, bags and other items. The deceased had been subjected to a particularly violent attack; a sword was found inserted through his chest cavity up into his skull. The appellant was also convicted, along with his co-accused and partner, Lorraine Callaghan, of attempting to defeat the ends of justice by, amongst other things, setting fire to the body of the deceased and to the flat where the murder had taken place. Ms Callaghan was acquitted of the murder.
[2] On 8 March 2013, the appellant was sentenced to life imprisonment with a punishment part of 25 years.
[3] The appellant appeals against his conviction on the grounds that the trial judge failed to give the jury adequate directions on the evidential value of statements said to have been made by Ms Callaghan to the appellant’s mother outwith his presence. He also appeals against the level of the punishment part.
Evidence
[4] The evidence was that the appellant co-habited with Ms Callaghan at a flat in Lincoln Avenue, adjacent to the multi-storey block where the murder was committed. They were both drug abusers. The deceased supplied valium from his flat. CCTV images showed the appellant and Ms Callaghan entering and leaving the block on two occasions in the late afternoon and early evening of the day of the murder. A neighbour identified the appellant and a woman as having been at the door of the deceased’s flat at about 5.00pm. The deceased had last been seen by his neighbours at about 7.00pm. The CCTV images also showed the appellant and Ms Callaghan entering the foyer of the block at about 9.00pm, when they were not seen to be carrying anything. Further images showed them entering the lift at about 11.30pm, when each was carrying a bag of one sort or another. It was shortly before midnight that the fire services were called to attend at the deceased’s flat. In the course of extinguishing the fire, they discovered his body. The appellant and the co-accused were detained some 11 days later.
[5] The evidence against the appellant came first in the form of incriminating statements to Lee Qua, a nephew of Ms Callaghan. Mr Lee had not previously met the appellant, but on the day after the offence Ms Callaghan had arrived unexpectedly at his flat with him. Mr Lee asked the appellant and Ms Callaghan why they had come to his flat. Ms Callaghan replied that something had happened, although she could not tell him what that had been. Some time later the appellant stated that he had killed someone at the flats. He said that he had cut the person’s throat, cut his ear off and just kept stabbing him. He had done this with a knife. He described sawing at the victim’s throat, almost cutting off the person’s head. He said that he had stabbed the deceased in the head and all over his body. The appellant described to Mr Lee how he and Ms Callaghan had stolen the deceased’s mobile phones, which Ms Callaghan had with her. He went on to say that they had started burning stuff, flinging stuff on the body and tried to burn down the flat. The fire alarm had sounded and the appellant and Ms Callaghan had left.
[6] The appellant and Ms Callaghan had returned to Mr Lee’s flat on the following Friday, when the appellant appeared agitated. He kept saying, “He could easily do it again”. Ms Callaghan kept telling the appellant to shut up. She “more or less pushed him out the door” and then left.
[7] In short, if Mr Lee’s evidence were accepted, there was a confession by the appellant in relation to the murder that contained special knowledge which, it transpired, was consistent with forensic and pathological evidence otherwise led in the course of the trial. Although it was not mentioned in the trial judge’s report, the appellant’s DNA was found in a blood spot on the deceased’s hand; one obvious inference from which was that the appellant had had contact with the deceased when the deceased had been bleeding.
[8] The evidence from the appellant’s mother was that she had met the appellant, and Ms Callaghan, unexpectedly, in a shop in Glasgow some time after the murder. They had gone up to her flat, where Ms Callaghan had spoken to her in a bedroom. She had said, “I’ve done something terrible.” She continued, “I’ve done a terrible thing, I’ve killed somebody.” She told the appellant’s mother that she had moved the body and cleaned up blood. When referred to her police statement, the appellant’s mother confirmed that, during the same conversation, Ms Callaghan had told her that “they had burned it”, referring to a suitcase taken from the flat. “Del had stabbed the guy and it was horrible”. At an early stage during the mother’s testimony, counsel for the appellant had requested the advocate depute to clarify specifically whether the appellant had been present during this conversation because, as the trial judge acknowledged at the time, this would have certain consequences. The appellant had not been in the room at the time.
[9] It is worthy of some note that the appellant had lodged an incrimination of a third party, whose DNA had been found in several places in the deceased’s flat. This person had admitted having previously been in the flat, although not on the day in question. Evidence at the trial from the police, who had examined CCTV images at both the locus of the murder and this person’s own flat, had effectively excluded his involvement in the murder.
[10] The appellant gave evidence in which he admitted being in the block on the day of the murder, but denied ever having been inside the flat itself. He knew the deceased as he used to buy drugs from him. He had visited the deceased’s flat on the day of the offence in order to buy valium, but the deceased had been unable to supply him with any. He had returned to his own flat. Later that day he had gone back to the block in order to buy drugs from someone else. He had bought heroin. He and Ms Callaghan had smoked it on the back steps of the block over a period of about 2½ hours. Ms Callaghan had gone upstairs to dispose of the burnt tin foil and wrappers. When she returned she was carrying a shopping bag and a black briefcase, which she claimed to have found in the bin room.
[11] Ms Callaghan also gave evidence. She had gone to the deceased’s flat with the appellant in order to discuss buying drugs. The deceased had had swords and knives on display in his flat. She had left the flat about an hour and a half later with, she thought, the appellant following. When she reached the lift, she noticed that the appellant was not with her. She walked back to the flat and heard “thumping and bumping in the hall”. The appellant eventually emerged after about 30 or 40 minutes carrying two bags. On the stairs the appellant had said to her, “I’ve done that c..t in and set his hoose on fire”. He said that he had stabbed the deceased in the heart. He had tried to “cut his heid aff” and had been “stabbing him in the chest to make sure he was dead”.
[12] Ms Callaghan had been judicially examined and had given an account broadly similar to her later evidence. Both Ms Callaghan and the appellant had given statements to the police during the course of interviews in which, again, they had provided information broadly similar to their testimony later in court.
Charge
[13] The trial judge directed the jury in the proper use of statements made by the co-accused...
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