APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Wheatley Lord Clarke Lord Hardie	[2009] HCJAC 31 Appeal No: XC652/07 OPINION OF THE COURT delivered by LORD HARDIE in NOTE OF APPEAL AGAINST CONVICTION by BARRY HAGGERTY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Keenan, Solicitor Advocate; Capital Defence Lawyers

Alt: Ogg, QC, AD; Crown Agent

25 March 2009

Background

[1] On 23 July 2007, following a trial at Glasgow High Court, the jury unanimously found the appellant and a co-accused guilty of the following charge:-

"On 1 January 2006 at 113 Craigview, Sauchie, you Barry Haggerty and Ian Wayne McIntyre did assault Robert John Naughton, c/o Central Scotland Police, Stirling and did repeatedly punch and kick him on the head and body, strike him on the face with a knife or similar instrument and repeatedly strike him on the body with a knife or similar instrument, all to his severe injury, permanent disfigurement and to the danger of his life and did attempt to murder him;

you Barry Haggerty did commit this offence while on bail, having been granted bail on 2 August 2005 at Alloa Sheriff Court."

The appellant was sentenced to imprisonment for seven years and six months, of which six months was imposed in respect of the bail aggravation.

[2] The appellant appealed against conviction, and although the Note of Appeal specified four grounds, the appeal before us was confined to the second of these which was in the following terms:

"The trial judge misdirected the jury in failing properly to explain to them the evidential value of and the use they could make of the statement made to the police by the complainer shortly after the incident. This was particularly significant in that the complainer did not, in evidence, adopt all of the statement as being a true account of what had happened."

Submissions on behalf of the appellant

[3] Mr Keenan, on behalf of the appellant, confirmed that the appeal was confined to the directions given by the trial judge in relation to the statement made by the complainer to the police. In the course of cross-examination of the complainer, the solicitor representing the appellant at the trial put before the complainer the statement that he had given to the police to highlight discrepancies between that statement and the evidence that the complainer had given at the trial. In evidence the complainer had alleged that the appellant was wielding a knife and had stabbed the complainer, whereas in his police statement the complainer referred to the co-accused as being responsible for the stabbing. The complainer did not adopt his police statement as part of his evidence and sought to explain the discrepancy between that statement and his evidence by stating that he was very drunk at the time of giving the statement to the police. The cross-examiner was using the statement in terms of section 263(4) of the Criminal Procedure (Scotland) Act 1995 and members of the jury were provided with copies of the statement on the instructions of the trial judge. In the course of his address to the jury the appellant's solicitor advised them that the trial judge would give them directions as to the purpose that the prior statement could serve. In his charge to the jury the trial judge gave the following direction:

"So, what do you make of the evidence? Well first of all, Ladies and Gentlemen, there is the complainer .... he described in court being attacked by both accused and that both used a knife to wound him. The defence say that his account in court is riddled with discrepancies, particularly when contrasted with the first account given.... by him to the police only four hours or so after the event. Now you have a copy of that and no doubt you will be having regard to what was said at that time. First of all, in that statement he involves a female also but he now claims to have no recollection of her being there, although it does appear from the other evidence that there may well have been the female, Charlene, there. That apart, he claims to have been assaulted by both accused, although he principally blames McIntyre for the stabbing, he says that he can't be sure who cut his face, this is the police, the statement from the police I am talking about, and I am quoting from that now, 'but I know that both Ian and Barry had a go at stabbing me, but I managed to fend off the stabs by Barry,' so that is what he said to the policeman who took his statement at the hospital at 4 o'clock that morning, whereas in court, 18 months later, you'll remember, he said in evidence it was Haggerty that slashed his face and that he (Naughton) saw it happening. He explains away this discrepancy by saying that he was very drunk at the time he gave his statement to the police, although you may feel that other evidence in the case was to the contrary. He may of course have been shocked because the statement he gave to the police was only three hours or so, four hours, after the matter happened, but he was described as being lucid both, as I recall by medical personnel and the policeman, so those are matters for you to take into account."

Mr Keenan submitted under reference to that passage that the trial judge gave no proper directions to the jury as to how they should treat the prior statement. In particular he did not advise the jury that the statement was not part of the evidence against the appellant and could only be used for assessing the credibility and reliability of the complainer. Morever the reference by the trial judge to the jury having a copy of the prior statement and to their having regard to what was said by the complainer at that stage was misleading. It implied that the jury could consider what the complainer said at the time but did not make it clear to the jury that the context in which they could do that was to compare it with his evidence. The difficulty with the direction was that it failed to give the jury any guidance as to the correct and proper approach to be taken as regards a prior inconsistent statement.

[4] Mr Keenan accepted that if there was a misdirection by the trial judge the appellant could only succeed in his appeal against conviction if there had been a miscarriage of justice as a result of that misdirection. In that regard he submitted that the prior statement was less incriminating of the appellant but nevertheless contained the passage quoted by the sheriff to the effect that the appellant and the co-accused had both attempted to stab the complainer but the complainer managed to fend off the stabs by the appellant. In addition in his statement the complainer told the police that when he was being stabbed he could hear a male voice shouting "stab him" and "fuck him". On the basis of these passages the jury would have been entitled to convict the appellant on an art and part basis. In view of the misdirections by the trial judge it was submitted that if the jury rejected the complainer's evidence because of the inconsistencies between it and his prior statement there was a danger that the jury would simply turn to the prior statement and treat it as evidence against the appellant. There was a clear danger that this may have occurred because the trial judge directed the jury that they could have regard to the statement, whatever that may mean. The trial judge did not elaborate upon that direction. In the circumstances Mr Keenan submitted that the misdirection had resulted in a miscarriage of justice.

Submissions on behalf of the Crown

[5] In opposing the appeal against conviction the advocate depute conceded that there was a clear misdirection by the trial judge in the passage complained of. The trial judge had failed to give appropriate directions as to the probative value of prior inconsistent statements. On the basis of the direction given the advocate depute accepted that the jury might have been mislead. However the advocate depute submitted that there was no miscarriage of justice resulting from the misdirection. If the jury considered the statement as evidence against the appellant, it was more favourable than the complainer's evidence in court. More significantly, however, it was clear that the jury must have accepted the core of the complainer's evidence that the appellant and his co-accused were acting in concert. Both in his evidence and in the prior statement to the police the complainer stated that the appellant and the co-accused arrived together at the house where the complainer was. Both of them were involved in the attack upon him and both of them left together. The jury had convicted the appellant and his co-accused unanimously and must have accepted the Crown's submission that this was a concerted attack by both of them upon the complainer. If the jury had rejected concert and had only convicted one of the accused, then this direction would have resulted in a miscarriage of justice. However, in the circumstances of this case there was no substance in the appeal.

Decision

[6] We agree with the submission on behalf of the appellant, and accepted by the advocate depute, that there was a clear misdirection in this case. The use of prior inconsistent statements is now a regular feature of criminal trials and it is essential that the presiding judge gives a clear direction to the jury concerning the limited purpose for which they may use such prior statements. In his report, the trial judge referred to the passage in his charge quoted above and thereafter stated:

"I specifically mentioned the various discrepancies between the account then given and the complainer's evidence in court. In my opinion, the matter was fairly put for the consideration of the jury."

Those observations fail to address the complaint in the grounds of appeal that the trial judge had failed properly to explain to the jury the evidential value of and the limited use they could make of the prior statement. The failure to give a proper direction is all the more surprising in this case when the solicitor representing the appellant stated in his address to the jury that this was a matter upon which the trial judge would give them directions, thereby highlighting the issue for the trial judge to consider.

[7] Although we are satisfied that there has been a clear misdirection in this case, we must also consider whether that has resulted in a miscarriage of justice. We have reached the conclusion that the misdirection did not have that result. The Crown case was based upon a concerted attack upon the complainer by the appellant and his co-accused. The unanimous verdict of the jury in identical terms against the appellant and his co-accused indicates that the jury accepted that this was a concerted attack. Moreover when one considers the essentials of the complainer's statement to the police and his evidence both were to the same effect, namely, that the appellant and his co-accused arrived together at the house where the complainer was; that thereafter the complainer was assaulted in the manner described in the charge at a time when both the appellant and the co-accused were involved with him; and that after the assault the appellant and the co-accused left the premises together. The discrepancy between his evidence and the prior statement given by him to the police related to the identity of which of the two accused stabbed him. As the jury clearly accepted that this was a concerted attack by both accused upon the complainer, that discrepancy was of no significance when considering the question of the culpability of the appellant.

[8] For the foregoing reasons we shall refuse this appeal.