APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Wheatley Lord Clarke Lord Hardie	[2009] HCJAC 32 Appeal No: XC640/07 OPINION OF THE COURT delivered by LORD HARDIE in NOTE OF APPEAL AGAINST CONVICTION by IAN WAYNE McINTYRE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Ms Ogg, Solicitor Advocate; McClure Collins

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".

The appellant was sentenced to six years imprisonment.

[2] The appellant appealed against conviction, the note of appeal containing the following grounds:

"(i) That evidence of a police interview between the police and the appellant was led by the Crown during the course of the evidence of police witness Ian Denham. The Crown placed before the Court a transcript of that interview, Crown production 15, and led parts of that interview in evidence. Counsel for the co-accused in the course of cross-examination of the witness sought to found on parts of the interview of the appellant already led in evidence by the Crown and parts not yet led. The co-accused had incriminated the appellant. Objection was taken to questioning by counsel for the co-accused regarding the police interview on the basis that an accused could not found on the statements of a co-accused unless notice had been given in terms of sections 259 and 261 of the Criminal Procedure (Scotland) Act 1995 and the statutory provisions were satisfied. No notice had been given by the co-accused. The learned trial judge repelled the objection on the basis that the statement had been led in part by the Crown and so was available to all parties. Counsel then went on to cross-examine the police witness regarding parts of the appellant's statement. During the course of cross-examination of the appellant, counsel for the co-accused founded on parts of the police interview and also in his speech to the jury.

(ii) The learned trial judge directed the jury at page 16 of his charge that statements to the police by the accused were admissible as evidence both for and against an individual accused, but where they were made outwith the presence of another accused, they cannot be evidence against the other accused.

(iii) That the learned trial judge erred in allowing counsel for the co-accused, Barry Haggerty, to cross-examine and found on the police interview of the appellant and in not thereafter directing the jury that what was said by the appellant in the course of his police interview was not evidence for his co-accused and to disregard any remarks by counsel for the co-accused which contradicted that. The statement of a co-accused cannot be used to incriminate or exculpate an accused unless a statutory exception in sections 259 and 261 applies and the requisite notice is given. By allowing the cross-examination and founding on the statement additional parts of the transcript were introduced and the appellant was subjected to additional attacks on his credibility and reliability and his defence undermined. The directions given by the trial judge did not clarify to the jury that the statements could not be used by counsel for the co-accused in support of the co-accused's case that the appellant was the assailant".

Submissions on behalf of the appellant
[3] Ms Ogg explained that the issue in the appeal was concerned generally with the manner in which the trial judge had dealt with evidence relating to a police interview of the appellant. Each accused had lodged a notice in terms of section 78 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") intimating that each of them might lead evidence calculated to exculpate him by incriminating his co-accused. In addition the appellant had lodged notices in terms of sections 259 and 261 of the 1995 Act intimating that if the co-accused did not give evidence the appellant might seek to rely upon the co-accused's police interview. The co-accused had not lodged equivalent notices in respect of the appellant's police interview. Detective Constable Denham (Crown witness no 9) gave evidence about the police interview of the appellant. In evidence in chief the advocate depute referred to certain passages of that interview including passages that incriminated the co-accused. It was permissible for the Crown to lead evidence of a statement by one accused even if it incriminated a co-accused (Munro v HMA 1999 JC257). However the Crown did not lead all of the contents of the edited transcript of the appellant's interview but the solicitor for the co-accused in cross-examination sought to adduce from the witness additional passages from the transcript of the appellant's interview. Ms Ogg, who had represented the appellant at the trial, objected to the line of cross-examination on the basis that it was illegitimate for the co-accused's solicitor to do so and moreover no notice in terms of sections 259 and 261 had been served upon the appellant by the co-accused. Under reference to the transcript of evidence Ms Ogg highlighted passages in the cross-examination of the appellant by the solicitor acting for the co-accused. The first passage disclosed that in his police interview the appellant had not given as his reasons for going to the house where the complainer was attacked that he was pursuing the co-accused because the co-accused was armed with a weapon. He had given another reason which was not disclosed to the jury (to get drugs). In the second passage the cross examiner elicited two conflicting statements made by the appellant to the police about his girlfriend. At page 5 of his interview the appellant said:

"My girlfriend was standing talking to him (the complainer) and I didnae realise the extent of his injuries until I came doon the stairs".

At page 13 of his interview the appellant said that after the incident he had gone down the road to his girlfriend who was lying sleeping on the couch. A third passage related to the possession by the co-accused of a knife. The appellant had been asked by the police officer conducting the interview whether the appellant had seen the co-accused with a knife at all that night to which the appellant replied:-

"I did not see Barry (the co-accused) with a knife, no".

Ms Ogg submitted that these passages were critical of the appellant and supportive of the co-accused's position. They were intended to undermine the credibility of the appellant and establish by process of elimination that, if the co-accused did not have a knife, the knife must have been in the possession of the appellant. There was no basis for the solicitor for the co-accused to ask these questions. He was not entitled to engage in that exercise. Ms Ogg submitted that there were limited circumstances in which the solicitor could have engaged in that exercise but not at that stage of the proceedings (Mathieson v HMA 1996 SCCR388). Contrary to the decision in Mathieson the trial judge had admitted evidence which had supported the account of the co-accused and undermined the appellant's account.

[4] Ms Ogg further submitted that even if the appellant had served a notice in terms of section 259 of the 1995 Act his solicitor could not have embarked upon this line of cross-examination during the Crown case. Moreover his right to use section 259 and 261 could only arise after the conclusion of the Crown case if the appellant elected not to give evidence. In his report the trial judge dealt with the objection in the following way:

"When it came to cross examination, the solicitor advocate for the first accused started to have the witness (DC Denham) refer to passages in the transcript which had not been led by the Crown. At this point, the solicitor advocate for the second accused (the appellant) objected to his doing this on the basis that notice of intention to do so had not been given in terms of section 261(4) of the Criminal Procedure (Scotland) Act 1995. ...In support of her objection, the solicitor advocate for the appellant maintained that, if the solicitor advocate for the first accused was to go further than the Crown had gone in bringing out the material in the transcript, notice should have been given under the sub-section referred to. In reply the solicitor advocate for the first accused claimed that this was not so and could not be so. How could he know in advance which parts of the transcript the Crown proposed to lead to enable him to give notice that other parts might be led on behalf of his client? It was not a question of his having introduced the evidence of the statement. This had been done by the Crown. He was entitled to cross-examine in his client's favour as long (as I understand it) as matters which had not been agreed would not be alluded to, were not. In addition, he reminded the court that a general notice of intention to incriminate the co-accused had been given on behalf of the client.

I agreed with submissions made by counsel for the first accused and repelled the objection taken by the solicitor advocate for the appellant. This was under the reservation however, that any specific objection to other prejudicial matters being brought out could be taken as seemed appropriate".

It was to be observed that the trial judge made no reference in the context of his decision to sections 259, 261 or 263 of the 1995 Act. In so far as the learned trial judge reserved the right of the appellant's solicitor to object to "other prejudicial matters" Ms Ogg submitted that, in the context of the statutory exceptions to the rule that hearsay evidence is inadmissible, an accused person seeking to rely upon the statutory provisions must comply with them, otherwise the rule against hearsay applies (McPhee v HMA 2001 SCCR674).

[5] The appellant gave evidence on his own behalf and was cross-examined on behalf of the co-accused. In the course of cross-examination he was again referred to the transcript of his police interview. It was submitted that a question arose whether the solicitor for the co-accused should have been entitled to put the terms of his police interview to the appellant as a previous inconsistent statement (section 263 of the 1995 Act). That section was inconsistent with the rule in Mathieson v HMA particularly as the purpose of the cross-examination of the appellant had been to bolster the case for the co-accused and also to attack the credibility of the appellant. In its discussion paper (number 77) on Criminal Evidence (September 1988) the Scottish Law Commission ("the Commission") had invited views about the possibility of changing the law relating to the admissibility of prior statements of co-accused in the context of the case against an accused. At paragraph 4.31 the Commission canvassed the possibility of admitting such a statement as evidence of fact for or against the interest of any co-accused where the accused gave evidence. Although such a solution appeared attractive in theory the Commission observed that there were some practical considerations that would require to be taken into account. At paragraph 4.32 the Commission observed:-

"Overall, the certainty of the present law, which at least provides a clear general rule that a prior statement of an accused is not admissible as evidence for or against a co-accused, may be preferable to rules which could produce the practical uncertainties outlined above".

In its Report on Hearsay Evidence in Criminal Proceedings (22 February 1995) the Commission records that it sought views on the law as to the extent to which the prior statement of an accused person should be admissible as evidence in respect of a co-accused. (Paragraph 5.74). The Commission shared the view of the majority of those who responded who favoured retaining the present law.

[6] The trial judge dealt with police statements by the appellant and the co-accused in the following passage of his charge to the jury:-

"So moving to the accused, what do they themselves say about this? Well firstly there's what they apparently said in their statements to the police after their arrests, only hours after the event. These statements, you should understand, are admissible as evidence both for and against an individual accused, but please note this, this is important. A statement made by one accused outwith the presence of the other, as the case here, cannot be evidence against the other accused as he's had no opportunity to deny what's been said. Such statements can be evidence against the accused making it, but not against the absent co-accused. This contrasts, of course, with evidence given by an accused in court in the presence of the other accused...".

The trial judge failed to direct the jury that the appellant's statement could not be used in support of Haggerty's case. He only directed the jury that the statement was not evidence against Haggerty. Moreover the solicitor for the co-accused had endeavoured to highlight inconsistencies within the appellant's statement and also between the evidence given by the appellant and his statement to the police. The trial judge failed to give proper directions in accordance with Mathieson v HMA and the jury would be unclear as to how they should treat the appellant's interview with the police. In all the circumstances the conviction should be quashed.

Submissions on behalf of the Crown
[7] In opposing the appeal against conviction the advocate depute conceded that the trial judge was in error when he permitted the solicitor for the co-accused to refer to parts of the appellant's police interview that had not been elicited in evidence in chief by the advocate depute. To the extent that answers by the appellant to police questions were first elicited in cross-examination on behalf of the co-accused the trial judge had wrongly admitted hearsay evidence. Moreover a notice in terms of section 261(4) of the 1995 Act would not have availed the co-accused at this stage because the provisions of section 259 and 261 only apply if the accused, who made the statement upon which a co-accused wishes to rely, does not give evidence. During the Crown case it is not known whether any accused will give evidence on his own behalf and it is clear that the decision of the trial judge in this case in repelling the objection to the line of cross-examination of DC Denham had the effect of admitting inadmissible evidence. As far as the illegitimate cross-examination of DC Denham is concerned, it was clear that the points developed in cross-examination had been introduced in the evidence in chief of that witness. The introduction of that evidence by the Crown in evidence-in-chief was not disputed to be legitimate although its elaboration in cross examination was accepted by the advocate depute to be illegitimate.

[8] Despite the trial judge's obvious error referred to above, the advocate depute submitted that it had had no practical effect in this case, and far less resulted in a miscarriage of justice. The appellant gave evidence on his own behalf. In that situation it was permissible for the solicitor for the co-accused to ask any question in cross-examination of the appellant (section 266(9) of the 1995 Act). For the purposes of section 263(4) the appellant was simply a witness and the solicitor for the co-accused was simply drawing attention to the differences in the appellant's evidence. It was clear from the form of the questions in cross-examination of the appellant that the solicitor for the co-accused was using section 263 because, in effect, he was asking the appellant whether his statements to the police during his police interview were different from his answers in examination in chief. In any event the solicitor for the co-accused did not require to avail himself of section 263 or to justify his questions in cross-examination of the appellant because of the terms of section 266(9)(b).

[9] As regards Ms Ogg's submission in relation to section 261 of the 1995 Act the advocate depute reminded us that it came into force on 1 April 1996 (Section 309(2)), which post-dated the decision in Mathieson v HMA. Section 261(2) permits a statement by an accused to be admissible evidence by virtue of section 259 at the instance of a co-accused, assuming the conditions specified in section 261(3) and (4) are satisfied. Contrary to the recommendation of the Commission, section 261(2) introduces a statutory exception to the hearsay rule at the instance of a co-accused in respect of a statement made by an accused in the same proceedings. There was clearly a policy change following Mathieson v HMA. A fortiori if an accused gives evidence, a co-accused must be entitled to adduce evidence for the purpose of attacking the credibility of that accused. Section 263(4) enables a co-accused to attack the credibility of an accused by using a prior statement of that accused. In the present case the attack on the appellant was habile to the defence of the co-accused. The burden of the appellant's evidence was exculpatory of himself and incriminatory of the co-accused.

[10] In summary the advocate depute submitted that the issues raised in cross-examination of the police officer concerning the appellant's police interview, insofar as they were important, were raised initially by the advocate depute in evidence-in-chief and in that respect they were properly exceptions to the hearsay rule. To the extent that the solicitor for the co-accused went further in cross-examination of the police officer and amplified points already made, it was accepted that was illegitimate. However, in the context of whether there had been a miscarriage of justice, the illegitimate cross-examination became irrelevant when the appellant gave evidence. At that point it was competent for the solicitor for the co-accused to cross-examine the appellant about the earlier statement and to contrast it with his evidence on oath. The co-accused's solicitor availed himself of that opportunity. In his charge to the jury the trial judge gave a favourable direction when he suggested that there was "a degree of consistency in the account given" by the appellant in his police interview and in his evidence about what transpired in the house where the complainer was assaulted. Finally, the advocate depute submitted that it was not possible to identify that the illegitimate evidence had had any effect on the outcome of the trial because the appellant had given evidence. Both in his police statement and in the witness box the appellant admitted being present at the time of the assault; he claimed that he had no weapon; he maintained that he endeavoured to calm things down; he gave an explanation for the blood on his clothes; he maintained that he was not aware that the co-accused had a weapon and he said that he did not see the co-accused with a weapon.

Decision

[11] It is not disputed that it was permissible for the Crown to lead the evidence of Detective Constable Denham concerning the contents of parts of the police interview of the appellant even although they implicated the co-accused who had not been present at the time of the interview (Munro v HMA). However, the cross-examination of the police officer on behalf of the co-accused resulting in the eliciting of passages of the appellant's interview which had not been mentioned in evidence-in-chief or in the elaboration of passages that had been mentioned was objectionable. It involved the eliciting of hearsay evidence in circumstances which were not covered by any of the exceptions to the hearsay rule. The 1995 Act provides remedies for an accused who wishes to elicit evidence about statements made by a co-accused outwith his presence, whether these statements are made to police officers or others. The appropriate remedy depends upon whether the co-accused gives evidence. In that situation the provisions of section 266 of the 1995 Act are applicable. In terms of section 266(1) an accused is a competent witness for the defence whether he is on trial alone or along with a co-accused. Section 266(3) provides that an accused who gives evidence on his own behalf in pursuance of section 266 may be asked any question in cross-examination notwithstanding that it would tend to incriminate him of the offence charged. Section 266(9)(b) permits an accused to ask a co-accused any question in cross-examination if the co-accused gives evidence. The effect of these provisions is that if an accused elects to give evidence on his own behalf he becomes a witness in the cause and is subject to cross-examination on behalf of a co-accused as well as on behalf of the Crown. Apart from the limitation concerning questioning a co-accused about his previous convictions or related matters, there is no restriction on the extent of the cross-examination of a co-accused on behalf of an accused. In particular an accused may avail himself of section 263(4). That would permit him to cross-examine his co-accused as to whether the co-accused had made a statement on a previous occasion which differs from the co-accused's evidence at the trial. If necessary the accused can seek the recall of a witness in terms of section 263(5). The effect of these provisions is that where the accused wishes to place before the jury the contents of a prior statement of his co-accused he requires to wait until after the conclusion of the Crown case. At that stage, if the co-accused gives evidence, the accused may cross-examine him and may, if necessary, utilise sections 263(4) and (5). We envisage that in most cases it will be unnecessary to seek the recall of a witness in terms of section 263(5) as it is probable that parties will agree the terms of prior statements, particularly if they have been taken under tape-recorded conditions and are contained in a certified transcript. In the event that the co-accused elects not to give evidence, the accused may adduce evidence of the contents of the co-accused's prior statement, assuming the accused has complied with the provisions of sections 259 and 261 of the 1995 Act. When these sections are considered together, evidence of a statement made by a co-accused is admissible by virtue of section 259 at the instance of the accused. However an accused must comply with the notice requirements contained within section 259(5) the effect of which is that in High Court cases the accused must serve the appropriate notice not less than seven days before the preliminary hearing or such later time before the trial diet as the judge may on cause shown allow. Failure to comply with these provisions cannot be excused on the basis that the accused's solicitor could not know in advance of the trial which parts of a transcript the Crown intended to lead in evidence. The trial judge was clearly in error in accepting such a submission for two reasons. The first is that the legislation clearly envisages the requisite notice being served prior to the commencement of the trial. The second is that the provisions of sections 259 and 261 have no application until the stage is reached when the co-accused elects not to give evidence. In the circumstances we are satisfied that the trial judge was in error in repelling the objection to the cross-examination of DC Denham on behalf of the co-accused. Moreover, if the appellant had not given evidence on his own behalf, the solicitor for the co-accused would have been precluded from leading evidence about the contents of the appellant's interview.

[12] Although the trial judge erred in repelling the objection on behalf of the appellant it was accepted on behalf of the appellant that we could not quash his conviction unless we were satisfied that the error by the trial judge resulted in a miscarriage of justice. From a scrutiny of the cross-examination by the co-accused's solicitor of the police officer concerning the appellant's interview, it appears that the issues raised had been raised initially by the advocate depute in evidence-in-chief. We agree with the advocate depute that insofar as the cross-examiner went further and amplified points already made that was illegitimate. However, the appellant elected to give evidence on his own behalf and was cross-examined on behalf of the co-accused. As we have observed that was legitimate. In the course of cross-examination the co-accused's solicitor asked the appellant about his police interview and contrasted it with the evidence which he had given on oath. By doing so the solicitor for the co-accused succeeded in legitimately placing before the jury evidence about the appellant's police interview, including discrepancies between that interview and the appellant's evidence on oath. In his charge to the jury the trial judge emphasised the consistency in the account given by the appellant in his police interview and in his evidence about what had transpired at the time of the assault. We are not satisfied that any miscarriage of justice has resulted from the error by the trial judge in repelling the objection on behalf of the appellant.

[13] In all the circumstances we shall refuse this appeal.