Lord Carloway

Lord Clarke

Lord Menzies

[2012] HCJAC 74

Appeal No: XC410/11


delivered by LORD CARLOWAY

in the appeal by







Act: A Macleod; Drummond Miller (for Bob McDowall, Glasgow)

Alt: Brodie QC AD; the Crown Agent

30 May 2012

[1] On 27 April 2011, at the High Court in Glasgow, the appellant was found guilty, by the unanimous verdict of the jury, of the murder of Connor Mallon on 10 January 2010 at a flat in Cockenzie Street, by knocking him to the floor, repeatedly standing and stamping on his neck, repeatedly kicking him on the body, repeatedly striking him on the head and body with ornaments, broken glass, a glass tumbler and other sharp and blunt instruments. She was also convicted of attempting to defeat the ends of justice by washing blood from the deceased and changing her own clothing and footwear. The appellant was sentenced to life imprisonment with a punishment part of 14 years. Significantly, for the purposes of this appeal, her co‑accused, Rose Ann Heron, was acquitted by a majority verdict.

The death of the deceased
[2] The appellant and her co‑accused were friends. The deceased was the boyfriend of the co‑accused. All three had been drinking in the co‑accused's flat, which is where the deceased was killed. The forensic science evidence demonstrated that the deceased had been assaulted first when he had been standing in the hall. The assault had continued into a hall cupboard, where the deceased was struck by various items of crockery and a tumbler. By this time, he was either kneeling or lying on the floor. He had fractures to the ribs, which were indicative of stamping and kicking. He had fractures to the bones of the neck, which were suggestive of the deceased having been seized by the neck. Stellate injuries to the face pointed to the deceased having been stabbed with the stem of a wine glass. The deceased suffered a gaping cut to the eyebrow, which had caused a considerable loss of blood. He had ultimately been dragged into the bathroom and drenched with water. He had sustained a total of 38 injuries to his head and neck. One neighbour, Helen Kelly, had heard noises coming from the flat at about the time of the incident, which might have been someone shouting: "Donna, Donna, Donna".

[3] The appellant's fingerprints were found upon a bloodstained glass in the hall cupboard. After the attack, the appellant had changed her clothes and attempted to wash those that she had been wearing. Nevertheless, there was blood staining on her clothes and boots. She had placed a chair against the front door of the flat to prevent entry. There was contact blood staining on the co‑accused's clothes and on her slippers, which were wet, indicating that she had been present when the deceased had been taken through to the bathroom and splashed with water.

Statements by the accused
[4] Immediately after the incident, the co‑accused left the flat and sought the assistance of neighbours. One of these, Paul Inglis, said that she had called at his flat door and had stated to his wife: "There's been a murder. She's slit his throat and was dragging him all over the place". Mr Inglis had gone to his door and the co‑accused had repeatedly said: "Call the police. There's been a murder. She's slit his throat. She's dragged him all over the place".

[5] Police officers testified to being allowed into the close by the co‑accused, who had told them: "He's up there. She's murdered him". The police had taken the co‑accused into the neighbouring flat of Colin Wilson. There, Mr Wilson had said that the co‑accused had said: "My boy, my boy, she slit his throat". She had referred to the appellant arriving unexpectedly at the co‑accused's flat. In cross‑examination, the co‑accused had elicited from Mr Wilson that the co‑accused had explained that the incident had occurred near the hall cupboard.

[6] When the police encountered the appellant in the flat, she had said: "Is he dead? It's nothing to do with me. Rose Ann done it. I pulled him out trying to get his wounds shut. I don't know how he got them". The appellant had been calm, but the co‑accused hysterical. Ms Kelly said that, when the police were removing both accused from the scene, the co‑accused had been shouting: "Why did she do that" and "She's cut his throat".

[7] The appellant had received a common law caution from the police in the flat. She was taken to London Road police station, where she was placed in an interview room awaiting the arrival of detective officers. She had been chatting with uniformed officers about matters unrelated to the events in the flat. The uniformed officers had been under the misapprehension that the appellant was only a witness. They had been unaware of the caution given to her. During the course of what one of the officers said was "quite a conversation", the appellant had stated: "I admit I kicked him to the floor". Despite being then cautioned by the officers, she had continued: "I don't care. I never did it. Rose Ann was there...". She had then blamed her co‑accused for the assault, apart from the kick to the floor. This blame extended to the co‑accused stabbing the deceased with a wine glass.

[8] Meantime, the co‑accused had been taken to Shettleston police station and, in remarkably similar circumstances, had said that she had been aware that the appellant had been pulling items out of her cupboard. She had seen the appellant dragging the deceased across the floor. In cross‑examination from the co‑accused, the police stated that she had described the appellant's actions as: "cold and calculated".

[9] In due course, the Crown led evidence from Catherine Hainey, a prisoner at Cornton Vale, where the appellant had been remanded in custody on 12 January 2010. Ms Hainey maintained that the appellant had admitted to her that she had committed the murder. In particular, she had said: "I didn't just stab f**k out of him. I took the eye out of his heid". Although, the deceased's eye had not been removed from its orbit, the eyebrow wound may have given that impression.

The Preliminary Hearing

[10] The appellant had been indicted to a preliminary hearing on 12 November 2010. No preliminary pleas, issues, applications or objections were raised on her behalf in advance of that diet. The court was advised that the appellant was ready for trial. However, the co‑accused raised an objection to the evidence of the contents of a statement given by her at the police office ostensibly as a witness and of a subsequent interview of her by the police, which largely confirmed that witness statement. These were respectively noted and transcribed in Productions 48 and 34. The preliminary hearing was "continued" until 2 December 2010, without a trial diet being fixed. On that date, the Crown intimated that they would not be relying on any statements made by the co‑accused in the police station. The co‑accused therefore withdrew her objection and a trial diet was fixed for 4 April 2011. Nevertheless, the preliminary hearing was "continued" until 2 February, and then 7 March, 2011 in order to resolve a new dispute which had arisen in relation to the recovery of the appellant's medical records. On 7 March, the diet was again "continued", this time to allow further enquiry into new evidence intimated by the Crown in the form of a notice under section 67 of the Criminal Procedure (Scotland) Act 1995. The continued diet was fixed for 28 March, but continued to 29 March because of the appellant's failure to appear.

[11] At the diet of 29 March 2011, the appellant sought to make, for the first time, an application under section 259 of the 1995 Act to allow hearsay evidence to be led concerning the same witness statement by and three subsequent interviews of the co‑accused, upon all of which the Crown had earlier stated they did not intend to rely. It was contended for the appellant that the application was not late but, if it were, it ought to be treated as an excusable "procedural irregularity" in terms of section 300A of the Act.

[12] Production 48 purports to be a witness statement noted in manuscript by the police at the police station. It bears to be signed by the co-accused. It contains a detailed statement of events leading up to the incident in the flat. It records that the co‑accused recalled there being some kind of humorous exchange between the appellant and the deceased. This was the last thing that she could remember before being out in the hall and seeing the appellant breaking various ornaments. She had shouted at the appellant. The next thing that the co‑accused could remember was the deceased lying on the hall floor with a cut across his throat. She did not know where the appellant had gone. The co‑accused had left the flat and sought help from her neighbours. On being asked by them what had happened, she had said that she did not know. She maintained that she had given the same account to the police. In particular, she had not known how the deceased had come to be injured and killed. In summary, in relation to the critical events, she had said: "There is nothing at all that I can tell you about this. I can't remember anything else about it". The remaining productions were transcriptions of the three recorded interviews with the co‑accused. The Crown repeated that they did not seek to rely upon either the witness statement or the interviews because they accepted that the co‑accused had, even at the time of the witness statement, been regarded as a suspect and had been questioned without having been given the opportunity of accessing a lawyer as subsequently required by Cadder v HM Advocate 2011SC (UKSC) 13.

[13] The judge explains in his report that he did not consider that the application under section 259 had been timeous. Section 259(5) and (5A) provide that the application had to be made "not less than 7 days before the preliminary hearing" or "such later time, before the trial diet, as the judge may on cause shown allow". He considered, under reference to HM Advocate v Forrester 2007 SCCR 216, that "the preliminary hearing" meant the first such hearing. Given the history of the case and the absence of any satisfactory explanation, he did not consider that cause had been shown for allowing the application late. He declined to excuse the irregularity under section 300A. In so doing, he noted the objections to the admission of the statement from both the co-accused and the Crown. He concluded that he had been left with certain "bare facts" as follows:

"1. The appellant had received the benefit of legal representation from the point of first appearance on petition onwards and had the benefit of senior and junior counsel acting on her behalf prior to November 2010.

2. The attention of all parties had been drawn to the issue of the co‑accused's police statements at the preliminary hearing in November 2010.

3. The Minute which was tendered on the appellant's behalf was tendered on the eve of the trial diet and more than 41/2 months later than required by the statutory procedure".

[14] In considering section 300A, the judge observed that it did describe, as a "procedural irregularity", "a failure to comply with a statutory provision of the sort which was before [him]". He expressed concern about how a provision regarding excusing such an irregularity on the basis of the "interests of justice", could be operated alongside one requiring "cause shown" to be made out relative to a time limit. He approached the matter as one requiring the exercise of his discretion and reasoned that:

" applying the interests of justice test it seemed... relevant to consider the impact of the application on the co-accused and on the trial diet. It also seemed... to be relevant to consider the purpose which counsel identified for the evidence which he wished to elicit".

The appellant had accepted that, since the appellant had not been present when the statements outside the flat had been made, the trial judge would have been bound to direct the jury that they could not constitute evidence against the appellant. The contention was that the jury ought to hear what the co‑accused had later said, even although that co‑accused did not plan to give evidence and thus put her own credibility in issue. On balance, the judge did not consider that he ought to allow the application.

The Trial
[15] At the trial, the appellant again attempted to introduce evidence of the co‑accused's witness statement and the later interviews. It was maintained that the appellant was entitled to lead this evidence as what was said would amount to "prior inconsistent statements" (section 260) relative to what the co‑accused had said outside the flat. The trial judge considered that he was bound by the earlier decision of the judge at the preliminary hearing but, in any event, he agreed with that judge's interpretation of the statutory provisions. He rejected the notion that the witness statement and the first interview (as distinct from the later two interviews) ought to be excluded as not being "Cadder compliant", given the status of the co‑accused at the time. He determined that, the application under section 259 having failed, evidence of the witness statement and the first interview (but not the two later ones) could still be admissible at common law if they contained an admission of guilt by the co‑accused. Such admissions constituted an exception to the rule against hearsay (Perrie v HM Advocate 1991 JC 27, LJ-C (Ross) at 31 and McLay v HM Advocate 1994 JC 159, Lord Sutherland at 176). However, he concluded that the statements did not contain such admissions. He therefore sustained the objections from the Crown and the co‑accused.

[16] The appellant objected at the trial to the admission of evidence of what she herself had said initially at the police station in the presence of the uniformed officers. She maintained that this evidence had been unfairly obtained. However, the trial judge repelled the objection on the bases that: (i) the objection ought to have been taken in advance of trial in terms of section 79(1) and (2) of the 1995 Act; and (ii), in any event, there had been no unfairness in the procedure at the police station.

[17] In due course, the trial judge directed the jury (charge p 20) that they had to treat each accused separately. In relation to statements he stated (p 35) in emphatic terms the following:

"...a statement or comment made by one accused when the other accused was not present was not evidence against the absent accused, the reason being that the person who is being accused in her absence does not have the opportunity of responding and saying 'that's not true' and... reacting. So that's the reason behind the rule. So it's not evidence against the absent accused. Such statements or comments can only be used by you in your assessment... of the case against the accused who made the statement. So there may be something within the statement that was made by the one accused, which assists you in assessing the case against that accused, although you cannot use it in assessing the case against the other accused".

Similar directions had already been given during the course of the evidence relative to statements given by each accused and they were repeated when the judge came to consider that evidence in more detail (p 37).

[18] There are four grounds of appeal. First, it is contended that the judge at the preliminary hearing erred in holding that the appellant's application under section 259 was late at all, given that it had been lodged more than seven days prior to a preliminary hearing. Section 307(1) defined "preliminary hearing" as including a diet of a "further" preliminary hearing. On a plain reading of the statute (Gardner v Lees 1996 SCCR 168, Lord McCluskey at 178), this definition encompassed any continued preliminary hearing (see O'Connell v HM Advocate 1996 SCCR 614).

[19] Secondly, the judge had erred in holding that a late application was not a "procedural irregularity" in terms of section 300A. It was maintained that this was the reason given at the time for refusing to entertain the application, and not that the interests of justice dictated that it be refused as set out in the judge's report. The judge had erred in holding that, because an oversight could not be explained, it did not constitute a procedural irregularity. It had been in the interests of justice to allow the application because: (i) it had been essential to allow the evidence to be adduced as part of the appellant's defence that it had been the co‑accused who had committed the murder; and (ii) the evidence cast doubt upon the co‑accused's assertion outside the flat that it had been the appellant who had been so responsible. It was unrealistic to expect a jury to use the co-accused's statements outside the flat in support of the case against the co‑accused but not in that against the appellant. Sometimes, a direction to a jury provided insufficient protection from prejudice (Platt v HM Advocate 2000 JC 468). Any evidence exculpating the co‑accused would necessarily have incriminated the appellant. The jury would, but for the evidence of her later statement and interviews, be left with the erroneous impression that the co‑accused had consistently blamed the appellant.

[20] Thirdly, the trial judge had erred in holding that the witness statement and interview were inadmissible, given that the co‑accused had elicited some of the evidence of statements outside the flat in cross‑examination. This was said to allow the appellant to lead evidence of later inconsistent statements. The fact that the Crown had agreed with the co‑accused not to lead the content of the later statements, as not being Cadder compliant, did not prevent the appellant from so doing (R v Myers [1998] AC 124, [1996] Cr App Rep 335). The later statements had been "mixed" and therefore admissible. The co‑accused had been able to rely on the statements made outside the flat in her address to the jury and, it was again submitted, the jury would have been left with the impression that her accounts had all been consistent. If the jury rejected concert, they may not have been satisfied about which of the accused had committed the murder (Docherty v HM Advocate 1945 JC 89). If the witness statement and interview had been admitted, there would have been a stronger basis upon which to convict the co‑accused as the principal actor. The jury would then have had to consider concert in relation to the appellant.

[21] Fourthly, the trial judge had erred in admitting evidence of what the appellant had said at the police station. This evidence had been unfairly obtained. The trial judge had erred in holding that an objection to this evidence ought to have been made prior to the preliminary hearing as it had not been known at that early stage that the officer talking to the appellant had thought that she was merely a witness. It had also not been apparent, as was said by the officer in evidence, that he had engaged in "quite a conversation" with the appellant before she had made the remarks attributed to her. The appellant had been cautioned at the scene and the officer should not have been engaging in any conversation with the appellant.


[22] The Advocate Depute submitted that the judge at the preliminary hearing had been correct in his construction of the statutory provisions and in his conclusion that "preliminary hearing" meant the first such hearing. Originally, the requirement had been to make the application "before the trial diet" but this had been amended, in respect of the High Court only, by the Criminal Procedure (Amendment) (Scotland) 2004. Section 66 created preliminary hearings. Section 72 specified the matters which were to be addressed at the preliminary hearing. Such preliminary pleas, issues and applications were to be dealt with at the hearing, although the court could appoint them to be heard at a "further" diet or the trial diet. The various provisions in sections 66, 72 and 307 ought to be construed as meaning that all diets were to be regarded as being part of the one preliminary hearing. The wording of the statutory provision in O'Connell v HM Advocate (supra) had been different and referred to the need to lodge a special defence "at or before the first diet". The power of the court to appoint a "further" hearing was for a specific purpose and one of which notice had already been given (see the scheme as described in HM Advocate v Forrester (supra)). The judge had not rejected the application under section 300A simply on the basis that there had been no procedural irregularity but had addressed its merits. He had decided, as a matter for his discretion, that there had been no "mistake, oversight or other excusable reason" and that it was not in the interests of justice to allow the application late.

[23] The statements which the appellant had wished to adduce were hearsay. The trial judge had been correct to refuse to admit evidence of them on the basis that that matter had already been determined at the preliminary hearing. He could not have allowed evidence of the two interviews made after the co-accused had been detained as they were not Cadder compliant, whether that evidence had been sought to be adduced by the Crown or the appellant (Brand v HM Advocate [2011] HCJAC 74). The earlier witness statement and interview remained hearsay and did not fall into any exceptional category. They did not incriminate the co‑accused. Even if they were incriminatory of the co‑accused, they did not serve, in practical terms, to exculpate the appellant.

[24] The trial judge had been entitled to regard the objection to the appellant's own statements to the uniformed officers as a preliminary issue which ought to have been taken in advance of the preliminary hearing. In any event, there had been no unfairness. The appellant had been cautioned at the locus. There had been no questioning of the appellant designed to elicit any incriminatory remarks. There had been no "interrogation" in European Convention terms. The statements made had been voluntary and spontaneous. The appellant had been cautioned again but had persisted with her admissions.

[25] The preliminary hearing, as a step in the High Court process, was inserted into section 66(6)(b) of the Criminal Procedure (Scotland) Act 1995 by section 1 of the Criminal Procedure (Amendment) (Scotland) Act 2004 in implement of the "Bonomy Report" ("Improving Practice: 2002 Review of the Practices and Procedure of the High Court of Justiciary"). The provisions relative to the procedure at preliminary hearings, the raising of objections to evidence and the definition of "preliminary hearing" in, respectively, sections 72, 79 and 307(1) of the 1995 Act were also introduced by the 2004 Act (ss 1, 13 and Schedule para 57). The changes were designed to reduce the then scourge of trial diets being adjourned because of a lack of readiness on the part of the parties, notably the defence, and to prevent the disruption of jury trials by lengthy legal debates on issues which could readily have been resolved in advance of the empanelling of a jury.

[26] The structure of the procedure is intended, inter alia, to encourage the disposal of preliminary issues, which include objections to the admissibility of evidence (s 79(2)(b)), in advance of the trial diet. Thus, section 79(1) provides that:

"Except by leave of the court on cause shown, no... preliminary issue shall be made, raised or submitted... by any party unless his intention to do so has been stated in a notice under... section 72(6)(i)".

Section 72(6)(i), in turn, stipulates that at the preliminary hearing the court "shall", unless it considers it inappropriate to do so, dispose of any preliminary issues "of which a party has given notice not less than 7 clear days before the preliminary hearing". Even where there is no notice, the court is placed under a positive obligation (section 72(6)(c)) to ask whether either party nevertheless wishes to raise an objection to the admissibility of evidence. In that event, the court must decide whether to grant leave, in terms of section 79(1)(supra), for the objection to be raised late. It must then deal with the objection at the preliminary hearing, unless it considers it inappropriate to do so. Once all of the preliminary matters are dealt with, the court must appoint a trial diet (section 72A). No objection to evidence can be raised at a trial diet unless the court considers that it could not reasonably have been raised in advance (section 79A(4)) and on cause shown (section 79(1)).

[27] It can be seen that, as a generality, the structure of the statutory provisions is that all preliminary issues must be dealt with at the preliminary hearing, and thus in advance of the appointment of a trial diet, "unless it considers it inappropriate to do so at the preliminary hearing" (section 72(6)(b) and (c)(ii)). In that latter event, but only in that event, the court is able (section 72(9)) to:

"(a) appoint a further diet, to be held before the trial diet appointed under section 72A of this Act, for the purpose of disposing of the issue, application, notice, objection or matter, or

(b) appoint the issue, application, notice, objection or other matter to be disposed of at the trial diet".

[28] Despite the prevalence of "continuations" of preliminary hearings, it remains the position that the preliminary hearing is intended to be the "end‑point of preparation rather than the starting point" (HM Advocate v Forrester 2007 SCCR 216, Lord Bracadale at 220). Be that as it may, the structure is clear enough in its statement that any preliminary issue must be notified 7 days in advance of the preliminary hearing so that it can be dealt with at that hearing or, where appropriate, at a further diet appointed expressly for that purpose (see Practice Note (No 1 of 2005) paras 8(f), 25, 26 and 31). The provisions which permit a further diet of preliminary hearing presuppose that prior notice of the issue has already been given, since it is only if a preliminary issue is already raised that there can be a further diet fixed to deal specifically with it. In this connection, the definition of preliminary hearing (Section 307(1)), as including any further preliminary hearing, is in place not to postpone the notice provisions but to permit the court, at the further diet, to exercise the same powers to dispose of the issue as it had at the initial diet.

[29] Section 259 provides that the content of a statement made by a person, other than when giving oral evidence, is admissible as evidence of that content if the maker will not give evidence for certain defined reasons. These circumstances include those where a person refuses to give evidence. Section 261(2) allows evidence of the statement of a co‑accused to be admitted at the instance of another accused "by virtue of section 259" on the basis that a co-accused, who has given a statement but has not testified, is treated as a person refusing to give evidence. However, such a statement is not admissible unless notice is given in accordance with section 259.

[30] Section 259 states that the party seeking to lead the evidence requires to give notice. That notice must (section 5A) be made within :

"(a) in the case of proceedings in the High Court -

(i) not less than 7 days before the preliminary hearing; or

(ii) such later time, before the trial diet, as the judge may on cause shown allow".

It is tolerably clear from this provision that the intention is to encourage any such applications to be raised in the same manner as other preliminary issues. In this connection, the term preliminary hearing should, in the absence of a sound reason to the contrary, be construed in the same way as it is for similar purposes elsewhere in the Act. That being so, the court agrees with the judge at the preliminary hearing that this provision means that the application must be made 7 days before the preliminary hearing to which the accused is initially indicted. If that is not done, the application cannot later be deemed timeous just because it chanced that a further diet of preliminary hearing was fixed for an unconnected specified purpose and the application was made seven days in advance of that further diet.

[31] The court does not consider that it can gain any significant assistance from O'Connell v HM Advocate 1996 SCCR 614, where the statutory provisions were different. The court there was considering a provision which permitted (and still permits) a special defence to be lodged "at or before the first diet" in the sheriff court (section 78(3), emphasis added). The, now repealed, section 71(8) allowed the court to "adjourn a first diet". Section 307(1) provided (and provides) that "'diet includes any continuation of a diet". The Crown having conceded the point, the court held that an adjourned first diet was still "the first diet" and therefore the defence could be lodged at (and before) that diet. The provisions with which this court is concerned, first, contain no general power to adjourn a preliminary hearing. The court can only fix a further hearing and that only for certain stated purposes. Secondly, the permission is not to lodge an application at (or before) a particular diet but only before it.

[32] This application was not made timeously. Accordingly, the appellant required to persuade the judge that there was "cause shown" to allow it to be made late in terms of section 259(5A)(ii). The alternative advanced was that, in terms of section 300A, the court could excuse the failure to lodge the application timeously on the basis that it constituted a "procedural irregularity" being an:

"300A(5) ...irregularity... arising...

(b) from failure of ...

(ii) ...the accused

to do something within a particular period or otherwise comply with a time limit...

(d) from failure of the accused to - ...

(iii) serve properly a notice or other thing"

The provision is said specifically not to apply "in relation to any requirement as to proof including, in particular, any matter relating to - (a) admissibility of evidence". It was not suggested by the Crown that this precluded the application of this section in the present circumstances if the court considered that there was such an irregularity which arose as a result of:

"(4)(a) ...(i) mistake or oversight

(ii) other excusable reason; and

(b) the court is satisfied in the circumstances of the case that it would be in the interests of justice to excuse the irregularity".

[33] The court notes the judge's concern about how to approach these two separate statutory provisions, which set out different tests for allowing what may be an identical application to be made late. That concern is readily understood, but ultimately the court at first instance will be making, in either case, a decision on where the interests of justice lie in the particular case. Thus, in section 259(5A)(ii), no matter how careless, or even deliberate, the action has been, which resulted in the failure to lodge the application, "cause" may be "shown" if it is demonstrated that it is in the interests of justice to allow the application to be made. That is so even if one consideration will be the public interest in ensuring that, in general and in the particular case, the criminal process is not disrupted unnecessarily. In that connection, the absence of a satisfactory explanation for failing to lodge an application timeously may be an important factor. Equally, although section 300A does not normally permit rectification of a deliberate act, it may excuse a mistake, oversight or other "excusable reason" if it is in the interests of justice to do so. In both situations, the judge is exercising his discretion in determining where the interests of justice lie and an appellate court will not disturb that exercise of discretion unless it can be shown to be, of itself, productive of a miscarriage of justice.

[34] The court is unable to hold that the decisions of the judge at the preliminary hearing did result in a miscarriage of justice. In determining whether cause was shown to allow the late application, he was entitled to take into account the fact that, despite the holding of several further diets of preliminary hearing over a period of some months, it was less than a week before the trial diet that the application was actually made. As such, were it to have been granted, no doubt, as was submitted to the judge, there was the prospect of the trial diet being lost as a result of parties having to reconsider their positions at a very late stage. It appears that the appellant's failure to lodge an application timeously may constitute a "procedural irregularity", but in determining whether to allow it to be considered late, the judge was entitled to take into account the same procedural history in determining whether the irregularity was "excusable". In that regard, the reference to mistakes and oversights must be read in the context of these being understood to be "excusable".

[35] Perhaps of more importance, however, is that, in deciding where the interests of justice lay, the judge was entitled to take into account, as he did, the substance of the evidence which the appellant sought to lead and to test its probative value, if any. It is accepted that what the co‑accused had said to the neighbours outside the flat and to the police at the scene was admissible hearsay by virtue of it being a statement against her own interest. It did not simply confirm her presence at the scene but contained special knowledge about what had happened. Statements made by the appellant of a not dissimilar nature were also admitted.

[36] The judge had in mind that the trial judge would direct the jury, as he duly did, that these statements could only be used to prove the case against their maker and not that against a co‑accused. There is no reason to suppose that the jury would not have been able to follow the trial judge's directions in this area, given their clear and repeated nature. In that state of affairs, what the appellant was seeking to do was to lead evidence of a statement contradicting evidence which was not probative in the case against her. As such, in the case against the appellant, the later statements could have no value at all. Matters would, of course, have been different if the co‑accused had given evidence against the appellant. In that event, any prior inconsistent statement could have been adduced in order to undermine her testimony, but that is not the position here. In these circumstances, the judge was entitled to take into account the lateness of the application, the unsatisfactory nature of any explanation for that lateness and the lack of probative value in the later statements in determining that cause had not been shown to justify their admission under section 259 and that it was not in the interests of justice to admit them in evidence.

[37] It it not disputed that the trial judge was correct in his view that the decision of the judge at the preliminary hearing on the application under section 259 was binding. He accepted the Crown's contention that the co‑accused's later interviews were not Cadder compliant and therefore, correctly, he did not admit them in evidence (Brand v HM Advocate [2011] HCJAC 74). However, he rejected the Crown's identical position regarding the witness statement and the first interview. Accordingly, he went on to consider whether the contents of that statement and interview were admissible as exceptions to the rule against hearsay at common law. If they amounted to statements against interest then they would be admissible for the same reasons as advanced by the trial judge under reference to Perrie v HM Advocate 1991 JC 27 and McLay v HM Advocate 1994 JC 159. The trial judge considered the content of the statement and interview and concluded that they did not contain admissions of guilt such as to fall into the exception. In the particular circumstances of this case, where there were two persons and the deceased in the flat at the relevant time, the judge was correct in holding that the co‑accused's witness statement and interview did not contain any material against her interest. Rather, the content was wholly exculpatory (cf McIntosh v HM Advocate 2003 SCCR 137; Jamieson v HM Advocate [2011] HCJAC 58).

[38] In any event, for the reasons already given, the court considers that the probative value of the content of the statement and interview would have been so low, if it existed at all, in the case against the appellant, that it cannot be said that the exclusion of this evidence has resulted in a miscarriage of justice. The evidence incriminating the appellant, including that from her own admissions, was compelling. Even if the content of the witness statement and interview of the co‑accused had been admitted, all that they would have amounted to was an account by the co‑accused that she could not remember what had happened at the material time. That would have been contrasted with the testimony of neighbours and the police that this was not what she had said at the scene. It is almost inconceivable that the jury would have regarded that account of sudden and inexplicable loss of memory as undermining or superseding the positive remarks describing the events made immediately after the incident. For completeness, the court also comments that it does not consider that the absence of evidence of what the co‑accused had said in the police station would have left the jury with an impression that the co‑accused had subsequently given consistent accounts in the absence of evidence to that effect. Once more therefore, the court is unable to accept the submission that the rejection of this evidence could have resulted in a miscarriage of justice.


[39] The statutory provisions relative to the taking of objections in advance of a trial diet are clear. An objection will not be entertained at such a diet unless the judge determines that it could not reasonably have been raised in advance. The appellant was aware of the circumstances of her making the admissions at the police station when she had been previously cautioned, presumably as a suspect, at the flat. If she had considered that the circumstances had been unfair, it was open to her to take an objection as a preliminary issue. The court is unable to find fault in the trial judge's determination that, accordingly, the objection came too late.

[40] In any event, the court is unable to detect any unfairness in the procedure adopted at the police station. The appellant had been cautioned at the scene that she did not require to say anything but that anything she did say would be noted and might be given in evidence. She was then taken to the police station where she awaited the presence of detectives, who would wish to interview her. She was not questioned about the incident. The officers accompanying her were under the misapprehension that she was only a witness. However, even if they had been aware that she had been cautioned, there is no prohibition on police officers engaging in conversation with a suspect unrelated to the offence under investigation. If a suspect spontaneously and voluntarily makes an admission during general conversation, that admission is unlikely, without more, to be regarded as unfairly obtained. In this case, the appellant was cautioned again but repeated her admission in relation to kicking the deceased, even although she then proceeded to blame the co‑accused for the murder. The court does not consider that there has been any unfairness on the part of the police or that the admission of this evidence has undermined the appellant's right to a fair trial. Furthermore, even if the admission about kicking the deceased had been excluded as unfairly obtained, the court does not consider that there would have been any realistic prospect of the jury returning a different verdict standing the strength of the remaining evidence against her. The appellant's statements to the police certainly contained an admission of involvement, so far as kicking the deceased to the floor was concerned, but they also involved an account which essentially blamed the co‑accused. The appellant was able to use this as material bolstering her incrimination, in so far as that affected the case against her, and to show that she had been consistent in her account from an early stage.

[41] This appeal is accordingly refused.