Appellant: G Jackson QC, M Mackenzie; Gilfedder McInnes

Respondent: A Mackay AD; Crown Agent

17 August 2010

[1] The appellant was convicted on 20 February 2009 by a majority of the jury at the High Court in Glasgow of the following charge:

"On 4 June 2007 at Dobbies Garden Centre, Eastfield Road, Cumbernauld you DAVID ALEXANDER HUGHES did assault Andrew Best, formerly residing at 4 Westerlands Drive, Stirling and did repeatedly strike him on the head and body with a knife or similar instrument and kick him on the body, whereby he was so severely injured that he died later at Monklands District General Hospital, Airdrie and you did murder him"

The appellant had also faced charges of attempting to defeat the ends of justice and attempting to pervert the course of justice. Those charges were withdrawn by the Advocate depute at the close of the Crown case.

[2] The issue for the jury, at the trial, was whether or not, the appellant was responsible for the murderous attack on the deceased, Andrew Best, it being accepted that he was in the presence of the deceased at the time of the attack or whether the attack was committed by another person namely a former co-accused John Maguire, who had previously pled guilty to the culpable homicide of the deceased.

[3] The grounds of appeal all focus on evidence given by Mrs Ann Silva, the aunt of the appellant, and the direction which the trial judge gave in relation thereto. The grounds of appeal are in the following terms:

"There has been a miscarriage of justice in that the trial judge erred in directing the jury in the following regard:-

1. He directed the jury as to the law regarding a witness adopting a statement made by that witness as being true and that adopted statements becoming the evidence of the witness.

2. He, in particular, did that in relation to the evidence of Ann Silva.

3. There was evidence that Mrs Silva, who was the aunt of Mr Hughes, had made a statement to the police which contained a statement that Mr Hughes had said certain things to her which could reasonably be considered as an admission.

4. The trial judge allowed the jury to consider that Mrs Silva in her evidence in the trial had adopted that statement as being truthful. Reference was made to the charge at pages 38 to 42.

5. It was not open to the jury to conclude that Mrs Silva had adopted this statement as being true. When her evidence is read clearly and properly it would not be open for any reasonable person to reach any other conclusion other than that she had clearly and specifically denied that any such statement was true. To reach any other conclusion it is necessary to take things in her evidence totally out of context and in a completely unfair and reasonable (sic) manner. The reality is that Mrs Silva could never be said to have adopted such statements....

6. This amounts to a miscarriage of justice because the evidence of Mrs Silva was extremely important as clearly any 'admission' made to a relative would have a significant evidential value"

[4] Senior counsel for the appellant, in opening his submissions, accepted that, quite apart from the evidence of the witness Ann Silva, there was a sufficiency of evidence to support a conviction of the appellant of the murder. The alleged misdirection of the judge in relation to how the jury could look at the evidence of Ann Silva was, however, of such materiality that a miscarriage of justice had occurred. It should be noted that no objection was taken, at the trial, to any of the questions or the line of questioning put to this witness which was productive of the evidence complained about, nor was any submission made about the admissibility of that evidence at the trial. The examination in chief of the witness focused, to a very large extent, on a statement she had given to the police in July 2007 about events on the day of the murder. The appellant was living with the witness at that time at her home. When initially interviewed by the police the witness told the police that the appellant was at home with her at about 22.00 hours on 4 June 2007. She accepted, however, in a subsequent interview that that had been a lie and that she had said this because she thought the police were investigating a minor road traffic offence, when they first interviewed her, and that she had been trying to protect her nephew.

[5] The witness was interviewed subsequently by the police on 31 July 2007. That interview was tape recorded. The transcript of the interview is Crown label 26. When the Advocate depute sought to play the tape recording of this interview at the trial, and to have the jurors provided with copies of the transcript, the trial judge asked senior counsel for the appellant if he had any objection to such a proposal. Senior counsel, after an adjournment to enable him to consider the position, indicated to the court that he had no objection. The jurors were, thereafter, provided with copies of the transcript and the tape recording of the interview was played in court. In the interview the witness is recorded as saying among other things that the appellant had telephoned her on the evening of 4 June 2007 and had asked her to bring his clothes to his brother's home. She had explained to him that his clothes were still wet after she had washed them. She, nevertheless, put the wet clothes into a bag and made her way to the appellant's brother's house. She is recorded as saying that when she arrived there the appellant took the bag from her and said "A terrible thing has happened". During the telephone conversation that he had had with her regarding the bringing of his clothes he had also said "A terrible thing happened. I'll explain to you when I see you." The appellant told the witness when she arrived at the house of his brother that he thought a man had died. They had been arguing. He went on to say "I didnae mean tae dae it Auntie Ann, honest I didnae mean tae dae it." Mrs Silva went on to say, in her interview, that the appellant had said that he had gone to slash the guy and the guy had moved his head back and the appellant had caught his throat.

[6] The witness is then recorded as saying "And David said to me would I dae him a favour an' take Jim in the car but I never seen a car and, ah take him to the garage, an get the tyres changed." She continued "That was it. The next day, I cannae remember when I phoned Jim, if it was that night, I think it was that night, I'm sure it was that, I'm almost positive maybe it was that night. And I met Jim the next day and took him to the garage, left the car and went back the next day tae get it. That's all I know." She was later recorded in the interview as saying that the appellant's car was taken to a garage to have its tyres changed.

[7] The foregoing is a summary of the incriminating material heard in the taped interview and appearing in the transcript thereof. At the end of the interview the witness was charged with attempting to pervert the course of justice by causing the tyres of the appellant's vehicle to be changed knowing the vehicle had been used during the commission of a murder.

[8] In giving evidence in court, Mrs Silva said she had been threatened by the former co-accused John Maguire who had told her that her nephew had cut somebody and that he thought the man was dead and that she should not speak to the police.

[9] In examination in chief the witness, initially, denied that she had told the police that the appellant had admitted attacking the deceased. She then said she did not remember saying this but after the trial judge had drawn her attention to what she was heard to have said on tape she said "If that's what I said, that's what I said". She was asked if she had been trying to tell the truth when she gave the statement on 31 July and she responded "Yes". The Advocate depute reiterated that, as recorded in the interview, she had told the police that her nephew said he didn't mean it. She said she did not remember saying that. She was then asked "Do you accept that you were doing your best to tell the truth?". She replied "Yes". It was then put to her if it had been recorded then it must have been what she said and she agreed. She was again asked if it was the truth and she said "It must be. I don't remember". She admitted that she had heard the tape recording being played over in court. She was asked whether it contained a truthful account of matters which she gave to the police, to which she replied "Yes, to the best of my knowledge". She was then asked what that knowledge was based on and she replied "The truth".

[10] Mrs Silva was then asked once more about telling the police that the appellant said that he "did not mean it". She said she might have said that as it was written down and she had heard herself saying it on the tape but she then added that she did not know if it was true. She did not remember. She had recognised her voice on the tape and must have said what was recorded therein to the police. Asked, once more, if she had been telling the police the truth she replied "To the best of my knowledge, yes. I was very upset. I thought I was telling them the truth." Reference was once more made to the passages in the interview as recorded, concerning the appellant telling her "A terrible thing had happened" and that he would explain this when he saw her and that he did not mean to do it. Her position, in response, was that she now had no memory of the appellant saying these things. However when asked if, at the time she did say these things to the police, she was trying to tell the truth, she responded "Yes".

11] The witness was then asked "Although you do not remember now, you were trying your best to tell the truth?". To which she responded "Yes". Asked if the source of the information she gave to the police was the appellant and whether what she had said in interview she had heard him saying was what she had, in fact, heard him saying, her reply was that she did not remember. On being asked if this was because of the passage of time she replied "Yes". The witness' attention was then drawn to another passage of the taped interview when she was recorded as saying "An' David said to me would I do him a favour an' take Jim in the car an'eh take him to the garage and get the tyres changed. That was it". On this matter her position was that she did not know if she said that to the police but she accepted that it was the truth to the best of her knowledge. It was suggested to her that what that passage revealed was that the appellant had asked her for a favour, to take "Jim" to the garage and get the tyres changed and in relation to that she said that that must have been what she said. On being asked if she had been telling the truth in that respect her reply was "To the best of my knowledge". Mrs Silva was then asked to consider a passage in the taped interview where she was recorded as saying "The next day, I cannot remember when I phoned him, if it was that night. I think it was that night, I am sure it was that, I am almost positive maybe it was that night. An' I met Jim the next day an' took him to the garage, left the car and went back the next day tae get it. That's all I mind". On being asked if she took Jim Gorman to a garage to get the tyres changed and that it was picked up the following day she agreed that she had taken Jim Gorman to the garage and had picked up the vehicle the next day but did not know that the tyres were to be changed.

[12] The witness' attention was then drawn to the following extract which was recorded in the taped interview:

"Q. What did, what did David say about the vehicle?

A. He just said he wanted to, would I take Jim an' get the tyres changed on the car. I didnae even know what vehicle he was talking aboot. But I didnae even know that he had, I am just assuming that Jim had hired this car for him because he was gonnae ask Jim to hire a car for him.

Q. Right who's Jim?

A. Jim Gorman."

In her evidence the witness then said that she did not remember who had asked her to take Jim Gorman to change the tyres. She then said she did not know who it was who had asked her to do this. When asked why she had told the police that it was the appellant, she said she did so because the police had been "badgering" her. The judge at this point intervened and gave the witness a warning outwith the presence of the jury. On resuming her evidence she was again reminded that in her interview she was recorded as having told the police that the car must have been one that Jim had hired for "him" and was then asked for whom he had hired it. Her reply had been "David". Her position in evidence, however, was that it was Jim Gorman who had told her this. Asked about her telling the police during her interview that the appellant had wanted the tyres of the vehicle changed, her position was that she did not remember if that was the truth although she agreed, again, that she had, at the time of the interview, been doing her best to tell the truth.

[13] The following passage from her interview was put to her.

"I had phoned, I think I phoned Jim that night, I'm no sure, I think I did or was it the next morning. Oh God I don't know. I don't know when I got hold of Jim an' I says to him 'Something terribles happened' an' I couldnae even talk on the phone. So he said 'Well I'll meet you, I'm on ma way back up fae', I don't know, he was washing windaes some place, I don't know. He's got a wee business. An' I met him at the Balornock Road, the shops at Balornock Road an' I told him what had happened. But that was all I knew, what David had told me"

She agreed with the Advocate depute that she might have said all of that and, once again, said that she had been doing her best to tell the truth at the time. She is recorded in the interview as having told Jim Gorman that some guy had been murdered and she agreed that was true to the best of her knowledge. Then Mrs Silva's attention was drawn to this passage in the interview:

"Q. And what did you discuss with Jim about what was to happen with the car?

A. I told him David says that he wanted to get the tyres changed"

Asked by the Advocate depute if that was the truth she replied "Yes". On being asked if that was what the appellant told her she then said "Yes, I don't remember". The witness agreed that she told Jim Gorman that the appellant had wanted to get the tyres changed. She was asked why she told Mr Gorman that if the appellant had not said it to her. She replied that somebody had told her to get the tyres changed. She agreed that if she gave a name to Mr Gorman it was probably the person who had told her to arrange for the tyres to be changed. On being asked if she agreed that she had told Jim Gorman that the appellant had said this to her she said that she must have said that as it was on the tape. She repeated that when she was interviewed she was trying her best to tell the truth but did not now remember what the appellant had said. She agreed that she was involved in taking Jim Gorman to the garage and picking him up later. On being asked why, the witness said that she was asked to do a favour for somebody and she did it. She was asked who this person was and she said "David". The witness' attention was then drawn to a passage towards the end of the taped interview which is in the following terms:

"Q. ... you've changed your statement, I, I would say you have added more to your statement but you've certainly changed from your first statement to your other statement. What you are telling us here today is that the truth?

A. God honest truth."

In reply to the Advocate depute the witness said she was telling the truth when she said that. The Advocate depute then asked if what was recorded on the tape was a truthful account of what she had told the police. She replied "Yes". It was then put to the witness "So the account which is contained within this transcript is a truthful account?". The witness replied "Yes". Mrs Silva told the Advocate depute that she had previously told the police lies in order to protect the appellant and that she thought she was helping him.

[14] In cross-examination the witness totally reversed her position. She said that she had said what she had said to the police during the interview because of threats made to her by John Maguire and because the police had been badgering her off tape. When she spoke to the police on tape she was not telling the truth. She repeated her complaints about the police and their conduct towards her, off tape, and also said that it was John Maguire who had told her these things which she had attributed to the appellant. Her final position, in re-examination, was that the account that she had given to the police about her nephew giving her the incriminating information as spoken to by her during that interview, was not true.

[15] The trial judge, in his report to this court, at page 25 said in relation to this witness "She was a thoroughly unsatisfactory witness. At times she adopted as true what she said to the police and at other times said it was false. It seemed to me that it was a matter for the jury what to make of that and that is the nub of the appeal."

[16] Senior counsel for the appellant drew to our attention that in his speech to the jury the Advocate depute had not relied, to any material extent, on this witness' evidence. In particular no reliance had been placed on what the witness had said in those passages of her police interview, which we have summarised in paragraph [5] and which might have been relied on as amounting to incriminating admissions, made by the appellant to the witness. Instead the Advocate depute had sought to persuade the jury that the Crown case had been established on the basis of other evidence. Because of that senior counsel had expected that the trial judge would have directed the jury that they could not found on those parts of the witness' evidence and accordingly he had not sought to point out to the jury the difficulties that arose in relation to this witness' evidence. What senior counsel is recorded at page 66 of the transcript of his own speech to the jury as saying is this:

"let me talk to you about Mrs Silva for a minute. Her statement to the police might not be evidence at all, in a sense, I don't care, the judge can deal with that, because for my purposes she is a very important part of a pattern I want to demonstrate".

[17] That "pattern" was apparently a reference to evidence which might suggest that John Maguire was the person guilty of the murder. Be that as it may, senior counsel advised the court that he was taken by surprise when the trial judge, instead of giving directions to the jury, to disregard Mrs Silva's references to what she had said in her police statement which incriminated the appellant, on the basis that it could not be said that she had adopted the incriminating statements in that interview, instead gave directions that it was a matter for them to look at what she had said and to decide whether she had at least, at times, adopted the statements in her interview as the truth. The direction given by the trial judge on the matter is to be found at pages 24 to 26 of the transcript of his charge. It was in the following terms:

"Now you remember the statement of Ann Silva. She gave evidence and production 63 was given to you, the transcript of what she was said to have said to the police and the tape was played. Now how do you approach that? The broad thrust of her evidence might be to think that you might think that it was not David Hughes who told her the various things, who made the various admissions spoken to on the tape but it was in fact John Francis Maguire. I think her position was at various times that she was in the house having been told that a terrible thing had happened by her nephew. She went there, bringing the wet clothes and she spent most of the time talking to Maguire and later on Maguire threatened her, and so on, do you remember her evidence about that. The taped interview was played, I may be wrong about this but my recollection, but your recollection counts, but your recollection counts is that at least some point towards the end of her examination in chief by the advocate depute, she said that what she told the police was true, it was David Hughes who said these things. Whether I'm right about that or not she said in cross examination that what she told the police was false. So it's a matter for you, you may think that at one point she adopted what was said to the police and at another point she rejected it. As I've said you can pick and choose in the evidence of witnesses. Do you accept that what she said to the police was true did she adopt it or did she not? If she did adopt it, was she right to do that? Was she telling the truth when she rejected it and said that it wasn't true? That's a matter entirely for you to consider. You remember what she said about pressure from John Maguire, about the police badgering her, you remember Mr Jackson highlighting the question of the Ford Fiesta, whether she had made some reference and had been told about that earlier and what she said about whether she had missed anything or not, remember what Mr Jackson said about that, and of course you'll remember Detective Constable McDicken's response to the suggestion of badgering etc put by Mr Jackson. It's a matter entirely for you, as I say, Anne Silva, you might think encapsulated just about every aspect of hearsay because on the one hand she says, she did say that, as I recall it, on the other hand she says she didn't, on one hand she says it was true, on the other hand she says that it was false, so you'll have to pick and choose amongst that as best you can. It's only if your satisfied that she did genuinely adopt what she said to the police and if your satisfied that what she said to the police was true, that you can hold that's incriminating as far as Mr Hughes is concerned. If you can't do that then put it out of your mind, it's not part of the Crown case."

Senior counsel contended that that was a misdirection. It was, moreover, a misdirection of some materiality given the content of the interview and the fact that the witness was a relative of the appellant and obviously in a close relationship with him. Since the jury were directed by the trial judge that it was a matter for them whether or not they accepted that the incriminating statements had been adopted by her as the truth, it had to be assumed that they would have regard to those incriminating statements and that these would have a very material bearing on their verdict.

[18] The Advocate depute in reply submitted that the witness Mrs Silva was to all intents and purposes a hostile witness to the Crown. There were divergences in her evidence between points when she accepted that what she had said in the police interview was true and others when she said it was not. But there were sufficient occasions when, without question, she accepted that what she had said was true, to allow the matter to go to the jury. The starting point was what the witness had said towards the beginning of her examination in chief when she accepted that she had been interviewed by the police under tape recorded conditions that she had appreciated that it was a murder inquiry with which they were concerned and that on that occasion she had told the police the truth. The questions put to her by the Advocate depute, under reference to the tape recorded interview were, it was submitted, put having regard to what was said in Jamieson v Her Majesty's Advocate 1994 SCCR 610. The witness, in the present case, had on a number of occasions, in her examination in chief, accepted that the statements heard in the taped interview were made by her and that they were true. At page 45 of the transcript of her evidence she, as noted, said that she was telling the truth when she said these things to the police. In that situation she had adopted what she had said to the police as her evidence at the trial. While, she subsequently went on to say that what was recorded on the tape was not true it was for the jury to make what they could of her evidence taken as a whole. There had been no misdirection by the trial judge.

[19] The Advocate depute went on to submit that, in any event, even if there had been a misdirection by the trial judge, there had been no miscarriage of justice because there had been more than sufficient evidence, apart from that given by Mrs Silva, to entitle the jury to reach the conclusion that the appellant had been guilty of the murder. As has been observed, the trial Advocate depute in his submission to the jury had not relied heavily on the evidence of Mrs Silva in putting the Crown's case before the jury. The Crown had led evidence of the deceased having told police before he died that the appellant had killed him. The evidence also came from a statement allowed under section 259 of the Criminal Procedure (Scotland) Act 1995 from John Maguire that it had been the appellant who had murdered the deceased. In addition the Crown relied on circumstantial evidence pointing to the guilt of the accused. This included forensic evidence involving fingerprint impressions of the appellant in an area of the car in which the deceased was murdered which pointed to the accused having placed his left arm on that part of the vehicle while he was striking the deceased with a knife in his right hand. The appellant accepted in his evidence that he had fled the scene of the crime and his vehicle had skidded when he was doing so. That provided an explanation for his anxiety that the tyres in his car should be changed. There was evidence also that the appellant went straight to the home of an acquaintance after the crime and began to direct persons to assist him, as the Advocate depute put it "to clean up and to clear off". Lastly the appellant had taken steps to avoid the authorities. He went initially to Holland, then to London and, ultimately, returned to Kirriemuir. On being traced by the police he gave a false name, a false date of birth and a false address. There was a formidable body of evidence, independent of the evidence of Miss Silva which was now complained about, to establish the guilt of the appellant. The appeal should be refused.

[20] In reply senior counsel for the appellant pointed out that, in the circumstances, since he refused to give evidence, John Maguire could not be cross examined in relation to what was said in his statement. Nor obviously could the deceased be cross examined. Both Maguire and the deceased, it had emerged at the trial, had been persons who were the subject of surveillance by the police regarding drugs operations. Their reliability might be questioned. That highlighted the potential significance of Mrs Silva's evidence implicating the appellant to the extent that it could not be said that her evidence would not have been a material factor contributing to the jury's decision to convict.

Decision

[21] We are satisfied that, in all the circumstances of this case, there was no misdirection by the trial judge. There is no doubt that Mrs Silva was, as the trial judge put it, a highly unsatisfactory witness. It has to be assumed that the trial Advocate depute was aware, before leading her in examination in chief, that she might well be an uncooperative, if not hostile witness. That was, no doubt, why he, at a very early stage of his examination in chief, sought to refer her to her taped interview with the police. As has been noted, senior counsel for the appellant was asked by the trial judge as to whether he objected to the tape recording of the interview being played to the jury and transcripts of it being provided to the jury. After due consideration senior counsel informed the court that no objection was to be taken to these things being done. There is no doubt that the witness accepted that the tape recording was of an interview with her and that she had given the various answers set out in the transcript. Equally there is no doubt, having regard to the passages in that transcript referred to above, that in examination in chief the witness accepted, on a frequent basis, that throughout that interview with the police she had been attempting to tell the truth and, moreover, at times she told the court that that was particularly so in relation to the incriminating statements made by the appellant. But she went further, at times, and specifically, in our judgment, accepted that these statements were, indeed, the truth. In effect she was incorporating, by reference, what she had said during the interview about those incriminating statements as part of her evidence at the trial. She did move away from that position at times, even during examination in chief, but there were several occasions on which she accepted that what was said in the interview as a whole was a truthful account of matters, in particular that the incriminating statements were true. She did, of course, subsequently disassociate herself from that being her position when cross examined, and again in re-examination, when she maintained that what she had said in the interview was not the truth. Nevertheless we are satisfied that it can be said that during examination in chief, the witness admitted as being true what she had been recorded during the taped interview as having said about the appellant making incriminating statements. The trial judge, in his directions to the jury, pointed, fairly and squarely, to the inconsistencies and contradictions in the witness' evidence. In Jamieson (supra) the court held that where a witness said that she could not remember what she had said in a statement to the police, but that she accepted that she made the statement, and that whatever she had told the police was true, the content of her statement was admissible evidence. At pages 9 to 10 the Lord Justice General said that the witness' evidence:

"That she told the police the truth and that, if she said at the time she saw the appellant hitting Cammie it must be true, had the effect, as the trial judge said, of incorporating her statement to the police into her own evidence".

In the present case matters went a bit further because the witness, at times in her evidence, having heard what she had said in the taped interview accepted that what she had said was true. In our judgment that being so, the fact that at times she contradicted herself in that respect did not mean that the judge was obliged to direct the jury not to have any regard to her evidence and, in particular, the incriminating parts thereof, or that, at the very least, he should have refrained from positively directing them to have regard to it in the way he did. Witnesses often contradict themselves, sometimes dramatically, in evidence or give extremely inconsistent evidence. A standard direction to the jury is that they should consider the witness' evidence as a whole and decide which parts of it they accept and which they do not. Once Mrs Silva did what she did in the present case, that is tell the court that what she had said in her police interview was true then, in our judgment, this became part of her direct evidence which the jury was entitled to consider, set against, of course, the later contradictions and inconsistencies. The position of senior counsel appeared to be that any significant departure from an acceptance of the statement as being true meant that her initial acceptance of the truth of the matter could not be considered by the jury as amounting to her incorporating what was said in the recorded statement into her evidence. For the reasons already given we disagree.

[22] As noted, the evidence given by Mrs Silva was taken without objection. Notwithstanding the limited mention made of Mrs Silva's evidence by the Advocate depute during his address to the jury, it was, in our opinion, open to the jury to consider the evidence given by Mrs Silva about her interview under caution by the police and decide whether or not the witness had adopted, as part of her evidence, the answers she had given during the interview. If the jury reached the view that she had done so, it was then for them to consider the credibility and reliability of that evidence before determining what bearing, if any, it should have on their verdict. That, of course, required to be done having regard to the directions the jurors received from the trial judge as to how they should approach Mrs Silva's evidence. In our opinion, the directions the jury received from the trial judge, which referred specifically to Mrs Silva's evidence, cannot be faulted. We, accordingly, consider that there is no force in the grounds of appeal against conviction and that the appeal should be refused.

[23] We should, however, add that had we considered that there was merit in the appellant's criticism of the trial judge's direction in this case, we would, nevertheless, have reached the view that no miscarriage of justice had occurred. Senior counsel for the appellant very properly accepted that, even without Mrs Silva's evidence, there was a sufficiency of evidence against the appellant. As previously noted, his position was that the relationship between Mrs Silva and the appellant was such as to make her evidence likely to be very significant and compelling in the minds of the jury. We consider that this point was over-stated. The jury would, no doubt, have found Mrs Silva a difficult witness to assess and would have had to consider the witness' evidence with a very great deal of care and caution, having regard to its unsatisfactory nature, taken as a whole. In addition the remaining body of evidence relied upon by the Crown was, in our opinion, very compelling and substantial.