APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 28
Lord Brodie Lord Drummond Young Lady Clark of Calton	Appeal No: XC30/13   OPINION OF THE COURT   delivered by LORD BRODIE   in   APPEAL AGAINST CONVICTION   by   DAVID RONALD SHANKS HUNTER Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

Appellant: M Mackenzie; Adams Whyte

Respondent: McSporran, AD; Crown Agent

 

12 March 2014

Introduction

[1] The appellant is David Ronald Shanks Hunter. On 17 December 2012 after trial before the sheriff at Edinburgh and a jury he was convicted of a charge in the following terms:

"(001) on 19 October 2011 at Ladbrokes, West Main Street, Whitburn, West Lothian you DAVID RONALD SHANKS HUNTER did with face masked assault Kimberley Beresford and Mary Timmins, both c/o Lothian and Borders Police, Livingston and both employees there and did push said Kimberley Beresford towards a wall and seize her by the body, repeatedly seize said Mary Timmins by the body, present a knife at her and hold said knife to her face, repeatedly demand money from them and did rob said Kimberley Beresford and Mary Timmins of a quantity of money and a cash box

You DAVID RONALD SHANKS HUNTER did commit this offence while on bail, having been granted bail on 29 August 2011 and 11 October 2011 at Livingston Sheriff Court".

 

[2] In a supplementary report, dated 28 November 2013, the sheriff explains that there was no issue at trial as to the offence having been committed. What was in issue was whether the appellant had been proved to be the person who had committed it. A submission of no case to answer was made on behalf of the appellant asserting that there was insufficient evidence of identification of the appellant as the perpetrator of the robbery. In reply the Crown submitted that there was a sufficiency of evidence founding, inter alia, on a number of items of circumstantial evidence and on certain self-incriminatory comments made by the accused. The sheriff sets out these items and comments as follows in his report:

(i) A black hooded jacket (recovered at the appellant's home on 21 October 2011) that matched the jacket worn by the perpetrator of the robbery;

(ii) Camouflage pattern trousers (recovered at the appellant's home) that matched the trousers worn by the perpetrator of the robbery;

(iii) A 'Celtic Top' (recovered at the appellant's home) that was similar to clothing protruding below the jacket worn by the perpetrator of the robbery;

(iv) A distinctive green and white glove (seen by witness PC Christopher Walker when he attended the home of the appellant at about 0200 on 19 October 2011) that matched both the description of the gloves worn by the perpetrator of the robbery and a glove found in the appellant's home on 21 October 2011;

(v) The male perpetrator had a local (West Lothian) accent;

(vi) The description of the perpetrator's build, which matched the build of the appellant;

(vii) The appellant is left-handed, signs with his left hand, and the perpetrator held the knife in his left hand;

(viii) Comments (from which, the procurator fiscal submitted, it could be inferred that the appellant had some knowledge of the robbery) made by the appellant on 21 October 2011 when police officers searched his home under warrant, viz:

"A big man broke my ribs, put balaclavas, the lot, in my bedroom drawer and my DNA is on it."

 

And

 

"He put the hood of my jacket on my head and put a home-made balaclava on my head. He set me up so my DNA would be on it. He set me up. The balaclava's in my room";

 

(ix) A jacket sleeve with eye holes cut into it, as well as the jacket from which the sleeve had been cut, both found at the appellant's home and from which, the procurator fiscal depute submitted, the jury would be entitled to infer that the appellant had made an attempt to make a mask with the intention of committing robbery; and

(x) The fact that the appellant's home is some 350 yards from the locus of the robbery.

[3] The sheriff repelled the defence submission of no case to answer. The appellant, who had lodged a special defence of incrimination, naming the other person present when police searched his home, did not give evidence. The only evidence in support of the special defence, which remained before the jury, was the police evidence of what the appellant had said during the search (as set out at paragraph [2] (viii) above). The appellant was convicted by a majority verdict.

[4] The appellant now appeals his conviction. As Ms Mackenzie who appeared on his behalf explained, two grounds of appeal are insisted upon. They are designated ground 2(a) and ground 2(b). Both allege a misdirection by the sheriff in respect of a statement or statements made by the appellant and spoken to by police officers when they gave evidence. Ground 2(a) relates to the two voluntary statements which are recorded at paragraph 2(viii) above. These, as had been accepted by the sheriff, were "mixed statements". In summary, ground 2(a) alleges a failure on the part of the sheriff to direct the jury that the content of such a statement is available as evidence for or against the appellant, regardless of whether he gives evidence. Ground 2(a) goes on to allege that the sheriff erred in failing to direct the jury that if they believed the exculpatory parts of these statements, or if they raised a reasonable doubt as to the guilt of the appellant, the jury were bound to acquit. Ground 2(b) alleges a misdirection in respect of what was an entirely exculpatory statement made by the appellant ("I never done it") made when he was detained in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. It was explained to us that the first of the two mixed statements was made by the appellant during a search of his home that took some twenty minutes. He was then advised that he was detained, at which point he replied: "I never done it". Not very long thereafter he made the second mixed statement. Notwithstanding what may have been a relatively short period over which the three statements were made, the circumstances were such that they were treated at trial as distinct incidents and no issue was taken with that approach before us. It was accepted that "I never done it" fell to be regarded as an entirely exculpatory statement and therefore not available as evidence of the truth of its content. However, in terms of ground of appeal 2(b) the appellant contends that the sheriff erred when he directed the jury that they should put the statement out of their minds. As the sheriff conceded in his report, and as is contended on behalf of the appellant, he ought to have directed them to the effect that the evidence that the statement had been made was available to the extent of showing the appellant's attitude or reaction at the time, which was part of the general picture which the jury had to consider.

 

Ground of appeal 2(a)
[5] Parties were agreed as to the applicable law. Indeed, the advocate depute specifically founded upon a passage taken from what Lord Lane had said in R v Duncan (1981) 73 Cr App R359 at 365, a passage which had been approved in the leading case of McCutcheon v HM Advocate 2002 SCCR 101 and which had been set out by Ms Mackenzie in her written case and argument. The passage is as follows:

"Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state."

 

For her part, Ms Mackenzie accepted that in order to determine whether there had been a misdirection it was necessary to consider the charge as a whole and not simply to concentrate on a passage which might have been expressed in clearer or more felicitous terms.

[6] Having considered the whole terms of the sheriff's charge we have concluded that the jury could have been left in no doubt that, as is the law, the whole of the content of a mixed statement is available for or against an accused person, regardless of whether he gives evidence and that if the jury believes the exculpatory parts of such a statement or if these parts give rise to a reasonable doubt as to the guilt of the accused person, a jury must acquit. At page 8 of the transcript the sheriff underlines what he has said previously in his charge in these terms:

"In view of what I have just said, when I refer to the Crown satisfying you about certain evidence, or proving certain facts, you will remember that the standard I have constantly in mind is proof beyond reasonable doubt. If, at the end of the day, you are left for whatever reason with a reasonable doubt, then the result must be failure of the Crown case and acquittal of the accused."

 

At page 9 of the transcript there is this:

"If you accept the evidence from a single witness, or from a single source which exculpates or, tends to exculpate the accused, then you must acquit. If any piece of evidence, even if not wholly believed, nevertheless casts reasonable doubt on the Crown case, then again, you must acquit."

 

[7] Ms Mackenzie was critical of the sheriff's specific treatment of mixed statements which appears at pages 15 and 16 of the transcript. However, at page 16 the sheriff reminded the jury that the appellant had said to the police:

"[the person he incriminated] put the hood of my jacket on my head. He put a homemade balaclava on my head. He set me up so my DNA would be on it. He set me up. The balaclava is in my room."

 

The sheriff then continued:

"Now, ladies and gentlemen, for the reasons that the parties have given you, part of that, potentially, could be considered incriminating and part of it could be considered exculpatory in that he, he is saying that somebody else was trying to set him up for a crime that he didn't commit. Ladies and gentlemen, it is for you to consider the evidence in light of, in the light of the speeches that were made, and to decide whether or not, or decide whether any part of that statement in whole or in part is accepted by you as the truth."

 

Thus, at this point of his charge the sheriff told the jury in terms that the whole of the statement which had been attributed to the appellant was available evidence which it was open to the jury to accept as the truth thereby exculpating the appellant from guilt of the offence with which he was charged. As the advocate depute submitted, that might be regarded as an unduly favourable direction in that it was not accompanied with the usual caution that this was a source of evidence which had not been given on oath and had not been subject to cross-examination.

[8] The sheriff went on at page 20 of the transcript:

"If the evidence from one or more sources given in support of the incrimination is believed, or creates in your mind reasonable doubt as to the accused's guilt of the charge, you must acquit."

 

Now, as Ms Mackenzie accepted, the only evidence before the jury in support of the special defence of incrimination was the statement which the appellant had made to the police. At the point in the charge which is recorded at page 20 of the transcript the sheriff stated in terms that if that evidence was believed or created a reasonable doubt as to the appellant's guilt then he must be acquitted. It is difficult to see what more was required for the sheriff but, at pages 23 and 24 of the transcript, having again reminded the jury of what the appellant had said, the sheriff instructed the jury that they were entitled to conclude that the accused was asserting that somebody had set him up to be prosecuted for a crime which he did not commit. At page 25 of the transcript there is a further reminder that the jury has to be convinced beyond reasonable doubt before they can conclude that the appellant was the perpetrator of the offence which was charged against him.

[9] Accordingly, we consider this ground of appeal to be unfounded.

 

Ground of appeal 2(b)

[10] The advocate depute conceded that there had been a misdirection in relation to the wholly exculpatory statement: "I never done it." The sheriff had said of that statement that it was "not evidence of the truth of what he said, so you'll put it out of your minds during your deliberations." While it was correct to say that a wholly exculpatory statement was not evidence of the truth of the content of the statement, the sheriff erred in inviting the jury to put it out of their minds entirely. That a statement denying his guilt had been made by the appellant was something to which the jury was entitled to have regard. However, the question arises as to whether this misdirection is to any extent material. It was the advocate depute's submission that it was not and we would agree. When pressed, Ms Mackenzie could only explain the significance in this particular case of the appellant having made a wholly exculpatory statement was as indicating his "attitude" at the relevant time. She accepted the suggestion from the court that it demonstrated consistency with the exculpatory element in the mixed statements. It is, however, difficult to see in what way the appellant's attitude at the relevant time or the consistency of the denial with other statements made more or less at the same time, advanced the defence case. Therefore, accepting that there was a misdirection here, we are entirely unpersuaded that it was a material misdirection giving rise to a miscarriage of justice. This ground of appeal does not succeed either.

Disposal

[11] We shall refuse the appeal.