Lord Johnston

Lord Wheatley

Lord Reed

[2008] HCJAC16

Appeal No: XC516/06


delivered by LORD JOHNSTON



under section 110 of the Criminal procedure (Scotland) Act 1995








Act: Kerrigan, QC; Alex Brown & Co

Alt: Wolffe, A.D., QC; Crown Agent

7 March 2008

[1] In June 2006 the appellant appeared with a co-accused in the High Court in Edinburgh in respect of the following charge:

"On 17 or 18 January 2006 at 88 Creag Dhubh Terrace, Inverness you ... and Thomas James Allan did assault Brian Cooper residing there and did repeatedly punch and kick him on the head and body, repeatedly stamp on his head and body, stand on his head, repeatedly strike him on the body with a metal instrument, place a pillow over his head and compress same restrict his breathing, struggle with him and did murder him".

[2] On 15 June 2006 the appellant was duly convicted of the entire libel. The co-accused was acquitted, of murder, but was convicted for assault, in terms of part of the libel.

[3] Upon the evidence the background to the matter was the death of the deceased in the course of a prolonged drinking session at the relevant address involving the appellant, the co-accused Allan and the deceased. Whatever the cause a quarrel broke out which led to the deceased being assaulted in the various ways libelled and being killed by being smothered with a pillow. The medical evidence was such that the force used to achieve that result with the pillow must have been considerable and was the undoubted cause of death, i.e. smothering.

[4] The appellant maintained two grounds of appeal before this court which were entirely separate, one of which related to the admission in evidence during the evidence of the co-accused of the contents of a statement he had previously made to the police not in the presence of the appellant. The substance of the material, which need not be rehearsed in detail, was to the effect that the co-accused had maintained to some extent a consistent story from the outset of the investigation, and certainly had never made any admission to using the pillow. Police witnesses, to which the statement had been made, were called by the Crown but quite properly none of the three counsel involved embarked on examination of the relevant statement with them at that time in the trial.

[5] What happened was that during the course of the examination-in-chief by his counsel of the co-accused, the former sought to elicit evidence from the witness, i.e. the co-accused, that he had made such a statement, that it related generally to the issues before the court and in particular was effectively self-serving, seeking to exculpate himself and inevitably, therefore, by implication expressly incriminating the appellant.

[6] This was the basis upon which Mr Kerrigan, QC, counsel for the appellant sought to have the trial deserted when the trial judge ruled that this evidential exercise was both competent and relevant at the material time in the trial. The trial judge refused this motion without giving any particular reasons.

[7] The relevant part of the transcript is from pages 186-198, but detailed reference is not necessary.

[8] The ground of appeal to which this matter relates was simply that once the co-accused was in the witness box giving evidence, it was competent to elicit that he had made prior statements to the police relating to the matter and hence no objection was taken by Mr Kerrigan when this exercise was embarked upon. However, he commenced his objections when it became clear that there was direct evidence coming from the co-accused implicating his client. He maintained that this was prejudicial to her position and had accordingly rendered the exercise unfair and the trial should therefore be stopped.

[9] The Crown's position was simple. The introduction by counsel of the relevant statement was self-serving in the interests of the accused Allan and was competent on the basis that he was seeking to set up his own credibility by showing he had maintained a consistent story of innocence when it came to the murder or killing. While it was not competent to use the self-serving statement on its own as evidence, it was competent, it was submitted, for it to be used purely for the purposes of credibility in respect of the maker of that statement on the basis of having maintained a consistent story.

[10] It has to be noted that Mr Kerrigan was not in a position to challenge the basic competency of the exercise and, at the end of the day as we have said his complaint was merely one of prejudice. He was also unable to criticise the charge of the trial judge in any aspect of this matter who clearly directed the jury that they could only use the contents of the statement as given in evidence for the purposes of asserting or supporting the credibility of the co-accused. It was not evidence against the appellant.

[11] In our view this was an entirely proper approach in the circumstances which developed. It would not have been appropriate or even competent for counsel for the co-accused to have investigated the making of statements to the police officers who were giving evidence for the Crown, at the time they were so doing. In advance of any evidence from the co-accused, which might in any event not have been forthcoming, such an attempt would have been immediately stopped or at least should have been if the matter was developed. However, once the co-accused is giving evidence, and has maintained a position of innocence, which he did with regard to any question of being involved in the killing, there is nothing incompetent for his counsel to elicit the making of prior statements which supported his credibility, even if as an inevitable result, because there were only three people involved in this matter including the deceased, in what was a concert charge the implications would be detrimental to the interests of the appellant. Such was unavoidable.

[12] It follows in our view that Mr Kerrigan's approach to this matter was wholly misconceived. The matter was properly handled by counsel for the co-accused and by the trial judge. This ground of appeal fails.

[13] The second ground of appeal proceeds on a wholly separate issue and related to a failure it was alleged on the part of the trial judge to deal with the issue of culpable homicide when charging the jury.

[14] In this respect however, it is to be said at once that although Mr Kerrigan suggested that culpable homicide had been mentioned to the jury, it had never been put to them specifically as an issue in respect of it being an alternative verdict to that of murder, if they were satisfied that his client had committed the relevant act of smothering. Mr Kerrigan's submission appeared to be that instead of starting from the point of view of directing the jury with issues of murder, the trial judge should have started with the issue of assault which would have left open, it was submitted, the issue of culpable homicide if there was insufficient murderous intent capable of being inferred from the evidence.

[15] In the circumstances of this case we consider this approach is wholly misconceived, both on a general and particular basis.

[16] As far as the general basis is concerned it is the opinion of this court that the obligation on the trial judge to charge the jury is fenced by the way the case is presented to the jury by both or all parties. It is not for the trial judge to speculate upon or embark upon areas of possible verdict which have not been canvassed in the evidence or form part of a submission to the jury (see the dissenting opinion of Lord Sutherland in HMA v Hobbins 1996 SCCR 637 and Johnston v HMA 1997 SCCR 568, following McPhelim v HMA 1960 J.C. 17). In these circumstances we consider the trial judge was quite correct not to venture into the field of culpable homicide at all, given the way the case was presented by all parties and given particularly that this was a case of concert, as charged in what was undoubtedly upon the medical evidence a murderous attack.

[17] Secondly, in the particular aspect, there is no evidence whatsoever to suggest, assuming the jury was satisfied that the killer was the appellant, that the level of intent was less than that of murder. Putting the matter simply, there was no room for culpable homicide as a verdict open to the jury the way the case developed.

[18] In these circumstances this ground of appeal also fails.

[19] In these circumstances, and for these reasons, this appeal fails and will be dismissed.