Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 99

XC647/11

Lord Eassie

Lord Bonomy

Lord Marnoch

OPINION OF THE COURT

delivered by LORD BONOMY

in

NOTE OF APPEAL AGAINST CONVICTION

by

MUAZAM ALI SHAH

Appellant ;

against

HER MAJESTY’S ADVOCATE

Respondent :

Appellant: Kerrigan QC, Labaki; Capital Defence Lawyers (for Philip Rooney & Co, Paisley)

Respondent: Brodie QC, AD; Crown Agent

26 June 2012

Background

[1]       The appellant was convicted on 1 September 2011 at the High Court in Glasgow of three charges. The first two were a charge of robbery and murder and a related charge of attempting to defeat the ends of justice, the material events relating to which occurred on 26 September 2010. The third charge was one of possessing heroin on various occasions between 1 and 26 September 2010 at various loci including the murder locus. In his report to this court the trial judge explained that the deceased was, by concession of all, a drug dealer who operated from her home, and the appellant was an occasional customer. There was no dispute that the attack upon the deceased was brutal, violent and plainly murderous. The main issue at the trial was whether the appellant was the assailant. There were no witnesses to the attack. The Crown case was largely circumstantial.

[2]       There are four grounds of appeal. As the argument before us developed, the terms of the second ground provided context for a full analysis of the first. The third and fourth grounds raise separate and unrelated issues over the conduct of the appellant’s trial counsel. The first ground is that the trial judge misdirected the jury as to the significance as evidence of the exculpatory parts of a mixed statement made by the appellant in the course of a tape recorded police interview on 3 November 2010 following his detention. The second ground concerns the manner in which the trial judge referred to the evidence in the context of reminding the jury of the respective cases for the Crown and the defence.

The Nature of the Statements

[3]       In the course of the debate before us it emerged that there were in fact three statements in respect of which it was contended that the jury had been misdirected. A material part of the interview on 3 November 2010 was taken up with discussing with the appellant the terms of a statement he had given on 28 September 2010 when originally interviewed in the course of the police investigation, essentially as a witness. The third statement consisted of an explanation which a witness, the appellant’s partner Fiona Heggie, said was given to her by the appellant to account for there being blood on his jeans after he returned to his home at a time not long after the time at which the deceased was killed. Both the statement made to the police on 28 September and that last statement were canvassed in the course of the tape recorded interview of 3 November which was played in its entirety to the jury and of which the jury had a transcript.

[4]       The Advocate depute acknowledged that all three were mixed statements. It has been clear since the case of McIntosh v HM Advocate 2003 SCCR 137 that any generally exculpatory statement made by an accused in which there is any material upon which the Crown might rely in support of the prosecution case is a mixed statement.

[5]       The clear mixed nature of all three statements is most easily illustrated by reference to the interview of 3 November. At an early stage in that interview there was discussion about the appellant’s heroin abuse and his suppliers, including the deceased. At page 32 of the transcript the interviewing officers moved onto the subject of the statement of 28 September which they then went over with the appellant. That dealt with the appellant’s movements on the day before and the day of the murder, including buying heroin from the deceased on both days. That statement also included the appellant’s account of leaving the deceased’s house on the day of the murder shortly after buying heroin from her, of smoking it in his car and of some of his movements thereafter.  The interview then continued with specific points being put to the appellant who spoke about the length of time he was in the deceased’s home on the day of the murder and his movements thereafter over a period of about two and a half hours. It was put to the appellant that his partner Fiona Heggie had found among the washing that evening a pair of the appellant’s denims that were bloodstained. The appellant gave to the police the explanation, which he had also given to her, that the blood was the result of an incident in Northampton two weeks or so beforehand. Fiona Heggie gave evidence in the trial about that explanation.

[6]       Throughout the interview the appellant gave explanations and answers which, if true, would support his denial of responsibility for charges 1 and 2. For example, he denied the account given by Fiona Heggie that she had bought him a pair of white Adidas training shoes which, according to the expert evidence in the case, had soles which could have made marks on the deceased’s body and in blood on the floor where she was killed. He also repeatedly denied lying to the police and he denied that he had anything to do with the murder.

[7]       Against that background it is difficult to understand why the trial judge initially directed the jury as follows:

“You’ve also heard that in this case statements were made to the police by the accused. Up until now we’ve been talking about police statements made by the witnesses; I am now talking about the statements made by the accused, Mr Shah. In this case, these statements were made at different stages of the enquiry; first of all, on Tuesday the 28 ^th September, when Mr Shah was interviewed as a witness, he was not a suspect at that stage, he was a witness. He gave a statement which you know about, which was dealt with in evidence and was read over, pretty much, in full, and I think it was played, indeed, also. And he was later to confirm that he had given a statement to the police. Now, as a matter of law, statements made to police by accused persons are in a different position from statements made to police by witnesses. And statements by an accused to police, and statements by an accused to other people, not just to police, but in this case any statements made by the accused to Ms Heggie which you believe were made, these are not hearsay, they are regarded as admissible evidence, because they are statements of the accused person. And so the content of the police statement, which I’ve just referred to, on Tuesday 28 ^th September, made by Mr Shah to the police, is therefore evidence in this case available to you as evidence of the position which was being taken by the accused at that time when he was interviewed by the police.

           The further statements of the accused, which you have heard and seen, were statements which were made after his detention in England as a suspect, he was a suspect in the murder by then, and these statements were made in the presence of his solicitor in the formal atmosphere of a police station with tape and video running and after he had been cautioned and told that he need not say anything, that he effectively had a right to silence, but that anything he did say would be noted and recorded and may be used in evidence.

           And so, I think it was Production Number 81 and Label 2, you had a transcript of most of that interview and you still have that, and you’ve seen it on video and heard it on audio. These statements, which he made when he was a suspect, are statements which are known in law as exculpatory statements, that’s to say a statement in which the accused denies responsibility for any aspect of the murder and robbery and so that statement would, if it was accepted as you by being true, be a statement which would point in the direction of his innocence. These recorded statements are therefore also available to you as evidence in the case. And where, as in this case, the accused has not given evidence himself in the witness box under oath in the trial, the statements which he made to the police are evidence only of the fact that he made those statements and of the content of them and of the attitudes and reaction of him at that time when the allegations were put to him. And so these statements made by the accused as a suspect are all part of the general picture which you have to consider when looking at the evidence, but the content of these statements is not evidence of the truth of what the accused said at time, it is simply evidence in the case.”

In light of the summary of the various statements which we have given above, that direction was plainly wrong. Even the characterisation of the evidence of these statements as “not hearsay” was wrong. Whenever evidence is given of statements made on an occasion prior to the trial, that evidence is hearsay. It may, in spite of that, be admissible on the ground that it falls under one of the exceptions to the general rule that hearsay evidence is inadmissible. Of more importance, however, is the misdirection that the content of the statements was not evidence of the truth of what the accused had said at the time, but evidence only of the fact that the appellant had made those statements and of the content of them and of his attitude and reaction at the time when the allegations were put to him. Even though, as the trial judge says in his report to this court, on a pragmatic view of the police interviews of the appellant he was admitting absolutely nothing which, from his perspective, incriminated him in the murder and robbery, there was a considerable amount of material in all three statements that could be used to support the Crown case and indeed undermine any defence, including by demonstrating that what the appellant said was inconsistent with elements of the circumstantial evidence against him. We do not agree with the trial judge that in this case the decision whether the statement was exculpatory or mixed was “a narrow and difficult one”.

The Correction of the Direction on Mixed Statements

[8]       The trial judge interrupted his charge at the end of the penultimate day of the trial with a view to resuming it the following morning. When the jury had withdrawn, the Advocate depute indicated that he would like to consider overnight whether he should address the trial judge on the direction he had given about these statements. On the following morning he did so. As a result the trial judge decided to correct his direction of the previous day and did so as follows:

“You will recall that when I was dealing with what is and what is not evidence in the case I gave you specific legal directions on two matters; the first was on how you approach the issue of witnesses who give statements to the police and then were asked about those statements in court, and I have nothing to add to that. But immediately after that I spoke about the different position of an accused person, an accused person who had given statements to the police. Now, those statements are not hearsay and are admissible. Well, I want to repeat that direction and correct one aspect of it.

As a matter of law, as I said to you yesterday, statements made to police by accused persons are in a different position from statements to police by witnesses, and a statement by accused to police or to other, in this case like any statements made to Ms Heggie, these are not regarded as hearsay and are admissible evidence. The content of the police statement made by the accused on Tuesday 28 ^th September is therefore available to you as evidence of the position of the accused at that time. And the further statements of the accused which were much more formal in the sense that they were taped, video recorded and those are the statements which you have seen in court, these statements were made after the detention of the accused in England as a suspect in the murder, and they were made in the presence of his solicitor and after he’d been told that he had no legal requirement to answer the questions, but that any questions that he did answer would be recorded and may be used at any trial. And what I’ve said so far in the matter is exactly the same as I said to you yesterday.

           However, I now want to deal specifically with the statement and give you a direction which is slightly different from the direction which I gave yesterday, because in that statement, the statement which you have heard played over, the statement made to the police, the accused said something to these officers which could point to innocence, for example, he denied totally the allegation of murder, or of any physical contact with the deceased. But he also said some things which could be incriminating in certain circumstances in that he placed himself in the house in which the deceased was later found dead at a point which you may think to be a point close to the time of the crime. And so in these circumstances, albeit that he denies being in the house at the time when the crime was committed, he has said that he was there at a point before that.

           So, in relation to this statement, you can look at the whole of the statement. You then have to decide if what was said was true, in whole or in part, and you can prefer one part of that statement to another. You can disbelieve the part pointing to innocence if there’s other evidence in the case which you think points to guilt. Or if you thought that the part pointing to innocence was inherently unconvincing you could disbelieve it. If you believe the part pointing to innocence, or if it raised in your mind a reasonable doubt as to guilt, then you must acquit the accused on that matter.

           You have to remember, however, in relation to a statement made to police, that what he said to the police was not said on oath, it was not subject to cross‑examination. Cross‑examination can reinforce or undermine the evidence of a witness, an accused, and so it’s for you to decide what you make of the statement which was made to the police and what weight you give to it. Where, as here, the accused had not given evidence, the statement which he made to the police is evidence only to show that the statement was made and to show his attitude or reaction at the time, and so it’s part of the general picture which you have to consider. The statement is not evidence of the truth of what he has said.

           And so, ladies and gentlemen, you will take that direction which I have just given to you in relation to the police interview in substitution for what I said on that matter yesterday.”

The trial judge then dealt with four particular areas of the evidence, gave the usual final directions in relation to verdicts and invited the jury to retire to consider their verdicts.

[9]       For the most part the corrected direction was an accurate reflection of the applicable rule relating to mixed statements led as part of the Crown case as set out in Morrison v HM Advocate 1990 JC 229 as modified by McCutcheon v HM Advocate 2002 SCCR 101, 2002 SLT 27. However, having given the direction that it was for the jury to decide what parts of the statement were true and that they could disbelieve the part pointing to innocence or find that it created a reasonable doubt and acquit, the trial judge then reintroduced the directly contradictory direction he had given the previous day that, where the accused has not given evidence, the statement made to the police was evidence only to show that it was made and to show his attitude or reaction at the time as part of the general picture which the jury had to consider. He rounded off the correction with the firm statement: “This statement is not evidence of the truth of what he has said.” That was plainly a misdirection, since it was wrong, contradictory of what had previously been said, and inevitably bound to cause confusion in the minds of the jurors.

[10]     We might add, however, that the failings in the trial judge’s attempt to correct the misdirection of the previous day do not end there since the later direction appears to exclude from its ambit both the statement made to Fiona Heggie and the statement given to the police on 28 September.

Submissions of the Advocate Depute
[11]     The initial position of the Advocate depute was that, when the terms of the correction were read together with the rest of the charge delivered on 1 September, the jury received a clear direction to the effect that the exculpatory explanations given by the appellant were to be taken into account as evidence of the facts referred to. He acknowledged that the trial judge had appeared to contradict his correction as indicated above. However he submitted that, because the trial judge had made it clear that he was correcting the direction given on 31 August to the effect that statements by the appellant were not evidence of what they contained, and following the apparent contradiction had then narrated the evidence in such a way as to make clear that the appellant’s exculpatory explanations were evidence of the matters to which they relate, the trial judge had not erred in directing the jury on the exculpation that is to be found in statements provided by the appellant. There was no misdirection. He did not propose to submit in the alternative that, if the court held that there was a misdirection, there was no resultant miscarriage of justice.

[12]     In our opinion the circumstances of this case do not lend themselves to that analysis. The jury were misdirected on 31 August. They were then correctly directed, at least in relation to one statement, but immediately thereafter again misdirected in a fundamental respect. In our opinion it is not in these circumstances arguable that the jury were not misdirected. Following an exchange on this between the Advocate depute and the court, the Advocate depute came to the view that the correct analysis was that the jury had been misdirected and submitted that, when the misdirection was read in the light of the subsequent directions, there had in fact been no miscarriage of justice.

[13]     In support of that submission the Advocate depute founded upon the trial judge’s discussion of the evidence in relation to four matters between pages 6 and 24 of the resumed charge on 1 September. His submission was that the jury could have been in no doubt that they were entitled to consider the contents of the appellant’s statements as evidence of the facts to which they referred on account of the way in which the defence case on these various aspects of the evidence was explained by the trial judge. The four areas of the evidence addressed in this way by the trial judge are those to which the second ground of appeal to the effect that the trial judge addressed the evidence in an unfair and unbalanced manner, placing disproportionate and undue emphasis on the Crown case against the appellant, relates. In the submission of the Advocate depute these were the principal areas of controversy in the trial.

[14]     The first area of evidence was that surrounding the period of time between the last answered mobile phone call on the deceased’s mobile phone at 12:32pm on the day she was murdered and the only other communication from her phone which was at 1:59pm. The trial judge directed the jury that it was important to decide what was happening at the locus between 12:32 and 1:59. Almost everything said on this topic by the trial judge related to the Crown argument about various pieces of evidence from which it might be inferred that the deceased was killed between 12:30pm and about 1pm. He did admittedly refer to trial defence counsel repeatedly stressing that, if the deceased had sent the text message at 1:59, that would greatly weaken the Crown case. He then directed the jury to look at all of the evidence and to take into account the Crown and defence arguments about what was happening during that period. He concluded on that matter by stressing that it was important to think about all of the evidence which pertained to that period and to come to a decision on it.

[15]     In relation to the other three matters, the evidence was said by the trial judge to be “more compact”. The second was whether the appellant’s jeans had become bloodstained, particularly on the lower part of the legs, between leaving his house on 26 September and returning 2½ hours later, after the deceased had been killed. The trial judge referred to explanations given by the appellant to his partner Fiona Heggie and to the police and to his uncle and cousin about helping an assault victim in Northampton and taking him to hospital some 4 weeks before. In particular he directed the jury as follows:

“So you have to ask if the whole account of what happened is credible and separately does it raise a reasonable doubt in your mind about how the bloodstaining on these jeans may have occurred. Is it the true version of how that blood occurred or is it an excuse which he has made up for Fiona Heggie to explain the bloodstaining.”

[16]     The evidence relating to the third matter was largely undisputed. Expert witnesses for both the Crown and the defence were agreed that significant marks on the deceased’s body and in blood on the floor at the locus could have been made by a shoe with a sole pattern similar to that of an Adidas shoe bought by Fiona Heggie. The two issues on this evidence were whether she had bought the shoes for the appellant and whether other shoes of a similar type made by other manufacturers could have made the marks. The trial judge highlighted both issues and reminded the jury of the appellant’s account that he had no connection with the shoes which had been bought for his nephew, and the evidence elicited in cross‑examination of the Crown forensic scientist and examination of the forensic scientist led by the defence which supported the possibility that the marks could have been made by a wide range of shoes.

[17]     The fourth matter was the disappearance of four items which had been in the control of the appellant before the deceased was killed and which were likely to have been bloodstained if he was the killer. The trial judge referred to the appellant’s explanations that his jeans had been disposed of because they were bloodstained after the incident in Northampton, the top had been sent to Northampton, he never had the trainers, and there had been no mat in the footwell of the driver’s seat of his car.

[18]     We are not persuaded by the Advocate depute’s valiant attempt to persuade us that, when the charge is read as a whole, there was no miscarriage of justice. While the trial judge made reference to the defence case on the second, third and fourth points referred to above in a way that indicated that the jury should have regard to the contents of statements made by the appellant in relation to the facts referred to therein, that cannot be said with confidence about the first point on which much was said by the appellant, particularly in the statement of 3 November, relating to his movements during the relevant period. In addition, and this applies to all four points, there was no reference in the trial judge’s review of the evidence to the appellant’s repeated explicit denial of responsibility for the murder. Finally, and probably of most importance, we are unable to conclude that the references made to the appellant’s account in relation to items 2, 3 and 4 would have removed from the minds of the jurors the confusion that must inevitably have existed at the point where the trial judge completed his correction of the misdirection of the previous day. In these circumstances we are unable to say that there is no realistic possibility that, if properly directed, the jury would have reached a different verdict, and we accordingly conclude that the trial judge’s misdirection of the jury has led to a miscarriage of justice.

[19]     For these reasons we shall allow the appeal and quash the conviction on each of the three charges. It is unnecessary for us to address the second ground of appeal relating to an alleged unfair imbalance in the trial judge’s reference in his charge to the evidence which we have discussed above, and the third and fourth grounds which relate to the conduct of the appellant’s counsel.