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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 48
HCJ/2024/257/XC
Lord Justice Clerk
Lord Matthews
Lord Beckett
OPINION OF THE COURT
delivered by LORD MATTHEWS
in
appeal following a reference from the Scottish Criminal Cases Review Commission
by
DARREN HUGHES
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: S Collins (sol adv); George More & Co LLP
Respondent: E Campbell, AD; the Crown Agent
________________________
3 December 2024
Introduction
[1]
On 3 February 2022 at the High Court in Glasgow, the appellant was convicted of
two charges. The first was of assaulting his sister Ashley Hughes by entering her flat
2
uninvited, punching her on the head and kicking her on the body, all to her injury. The
second was of assaulting and attempting to murder Ryan Farrer there, by punching and
kicking him on the head and body and stabbing him repeatedly, all to his severe injury,
permanent disfigurement and danger to his life. A co-accused Mark Mitchell was also
convicted of both charges but, in relation to Mr Farrer, under deletion of the aggravations
and the libel of attempted murder. Both assaults occurred on 7 December 2019.
[2]
The appellant was sentenced in cumulo to imprisonment for 9 years. An appeal
against conviction on the attempted murder charge, based on a purported error by the trial
judge in refusing to admit testimony from the complainer's sister, on the ground that she
had been present in court, was refused on 9 November 2022 (Hughes v HM Advocate 2023
JC 40).
[3]
In April 2024, the SCCRC referred the case back to this court on the basis that there
may have been a miscarriage of justice because of the existence and significance of evidence
which was not heard at the original trial (Criminal Procedure (Scotland) Act 1995,
s 106(3)(a)). The evidence which is said to be new is from Chantelle Tant, the ex-wife of
Mark Mitchell. She testified before us on 21 November, having failed to appear the day
before, as a result of which a warrant was issued for her arrest. We shall deal with her
evidence in due course but in summary she spoke of threats made by Mr Mitchell to stab
Mr Farrer and, on the following day, to admissions made by him.
The trial
[4]
There was no serious dispute that someone had attempted to murder Mr Farrer.
Each accused blamed the other and the principal evidence was as follows.
3
Mr Farrer
[5]
Mr Farrer died in advance of the trial for reasons unrelated to the crime libelled. His
evidence was thus led in terms of section 259 of the 1995 Act, using a statement he had given
to a police officer. On Saturday 7 December 2019, he had been staying with his friend
Ashley Hughes at the locus. They had been drinking heavily together on the afternoon of
Friday 6 December and continued to drink all the way through Saturday. At some point on
Saturday night he fell asleep. The next thing he knew was that he was awake with someone
"battering him." He felt someone on top of him hitting him in the face and chest like he was
being punched. He opened his eyes and saw Mr Mitchell above him. Mr Mitchell kicked
him in the face and said "I fucking warned you." Mr Mitchell then kicked him again in the
face. He was unaware that he had been stabbed in the chest. He did not see Mr Mitchell
with a weapon. He had been lying on the bedroom floor between the two beds. He saw
Ashley in the room with the appellant. The latter jumped in and also attacked him by
punching him in the face once or twice. He then heard Mr Mitchell say something and felt
another kick, which he thought was delivered by the appellant. He tried to fight back but
could not as he was stuck on the floor, edged between two single beds. Mr Mitchell and the
appellant then left the flat together.
[6]
DC Joyce Gunderson spoke to taking Mr Farrer's police statement from him and to
showing him two separate sheets of photographs from which Mr Farrer identified both
Mr Mitchell and the appellant as those who assaulted him. She said that Mr Farrer had said
that Mitchell had "grassed" him and that he would, in turn, "grass" him. She said that there
were several comments made by Mr Farrer when she showed him the images. Mr Farrer
had said that Mr Mitchell had stabbed him. He said that Mr Hughes had not stabbed him
but had kicked and punched him.
4
Ashley Hughes
[7]
Ms Hughes confirmed that she had been drinking heavily in her flat with Ryan
Farrer throughout the weekend. The appellant and Mr Mitchell came to her flat just after
8.00pm on the Saturday. She answered the door and the appellant punched her as soon as
he came into the house. Ryan Farrer was sleeping at the time. Mr Mitchell said "Where is
he?" She and the appellant engaged in a scuffle in the living room. The appellant pulled her
hair and she fell to the ground. She and the appellant fought for a few minutes and then
Mr Mitchell came to attack her. Mr Mitchell had been in the bedroom and she had heard a
bang while he was in it. On Mr Mitchell's arrival in the living room he kicked her in the
stomach and said "You'll get what he just got." The appellant had left the flat before
Mr Mitchell kicked her. Mr Mitchell then left the flat. She went into the bedroom and saw
Mr Farrer on the floor, between two single beds, covered in blood. She told the police in a
999 call that Mr Farrer had been slashed and that she thought he had been stabbed. When
asked if the attacker was still nearby, she responded "They'll be well gone."
[8]
Ultimately it was held that there was sufficient evidence that Ms Hughes had
adopted a statement given to the police. In this she had said that when she was on her knees
the appellant had kicked her on the ribs a couple of times and that he had gone into the
bedroom with Mr Mitchell. They were both with Mr Farrer for 2 or 3 minutes.
[9]
In cross-examination by counsel for Mr Mitchell, Ms Hughes was asked whether she
wanted the jury to accept that everything had been done by Mr Mitchell. She agreed with
that proposition. She said that Mr Mitchell was angrier and went into the bedroom and she
was positive the appellant had never gone into the bedroom. She was asked whether she
remembered telling the police that Mr Mitchell had pointed to her and said "I'll kill you as
5
well." Ms Hughes said that she could not remember saying this but accepted that her
memory would have been fresher when she had given the statement as opposed to at the
date of trial. She accepted that if the police had written that down then she must had said it.
She was asked whether Mr Mitchell said that he would kill her as well. She said that he had.
Lisa Mitchell
[10]
Lisa Mitchell is the sister of Mark Mitchell. According to her, both Mr Mitchell and
the appellant had been within her house on the evening in question. They were also in the
house the next morning when she woke.
[11]
Under reference to statements which she too ultimately adopted, she said that on the
Sunday morning she had heard the appellant on the phone, possibly to his mother, when he
said "that Ashley had stuck us in".
[12]
Further excerpts which she adopted read:
"I heard him saying that he had been arguing with someone on Facebook and that
this had been a long time coming. I was asking [the appellant] "what are you talking
about?" and [the appellant] walked away into the kitchen still talking on his phone."
and
"I asked both of them what had happened. Mark and [the appellant] started having
a conversation and I heard [the appellant] say "You don't have to worry, Mitchell, it
was me."
[13]
She also accepted that she would have told the police that Mr Mitchell told her in the
morning that it was nothing to do with him and that he "had been here all night".
Mark Mitchell
[14]
Mr Mitchell said that he had been staying with his sister, Lisa Mitchell, on the
weekend of the incident. The appellant had come to the house and he, the appellant and
6
Ms Mitchell were all drinking together. The appellant had wanted to go to his sister,
Ashley's, flat later in the evening and Mr Mitchell had joined him.
[15]
When they arrived at the locus, the appellant punched Ms Hughes twice as soon as
she opened the door and she began to scream. Ryan Farrer was lying between the beds in
the bedroom to the left of the hallway and he saw the appellant going into that room. The
appellant punched Mr Farrer two or three times in the face and was straddling him.
Mr Mitchell went into the bedroom and bent over the bed for a couple of seconds to see if he
could help Mr Farrer. The appellant then came back into the bedroom and said "fucking
leave him." Mr Mitchell got up, ran past the appellant and left the flat. He and the
appellant stopped in at a local pub before returning to Lisa Mitchell's house. The next
morning there was a discussion between him, the appellant and Lisa Mitchell. At this point,
he knew that the police were looking for him. The appellant had told him that he had
nothing to worry about as he had not done anything. Ashley Hughes and the appellant had
lied about his involvement. Ms Hughes was protecting her brother and the appellant was
closer to Ryan Farrer than had been admitted.
The appellant
[16]
The appellant spoke to staying overnight with Lisa Mitchell on 7 December 2019. At
some point Mr Mitchell had joined them. He agreed that he and Mr Mitchell had gone to his
sister's house later on the Saturday evening. He did not accept that he had assaulted his
sister in any way. He said that his sister saw Mr Mitchell and started screaming. She was
pushing, shoving and pulling. She was pulling at the appellant and he said that he had hit
her on the face accidentally. He denied ever kicking Ms Hughes. Mr Mitchell was the only
one who went into Ryan Farrer's room. The appellant said that he was with his sister
7
arguing about Mr Mitchell being in the house. Their argument was in the living room and
they were scuffling. At that point, Mr Mitchell was in the bedroom, screaming and
shouting. He overheard Mr Mitchell say "I'm going to fucking kill you." Thereafter, he saw
Mark Mitchell kicking Ashley Hughes in the hallway of the flat. Both he and Mr Mitchell
left the flat together. He did not know that Mr Farrer had been stabbed and he did not see a
weapon. He disputed that he made any confession in either Mr Mitchell's or Ms Mitchell's
presence. The appellant blamed Mr Mitchell for the stabbing.
The judge's charge
[17]
The trial judge reminded the jury that the Crown's principal case was that the two
accused had acted in concert, with Mr Mitchell being the primary actor. Mr Mitchell could
be convicted alone if concert was not proved. Their secondary case was said that even if the
jury could not say who the principal actor was, both should be convicted as they had acted
in concert.
[18]
Later in his charge, the trial judge gave a further direction. This was a third "route to
conviction" and not one which the Crown had advanced. If the jury believed the account of
Mr Mitchell and disbelieved the evidence of Mr Farrer, Ms Hughes and the appellant, they
could acquit Mr Mitchell and find the appellant guilty of charge 2 on his own, provided
they could find corroboration in the evidence of other witnesses. There was, of course,
evidence of admissions by him.
Verdict
[19]
The jury convicted the appellant of charges 1 and 2 as libelled. They found
Mr Mitchell guilty of charge 1 and guilty of charge 2, under deletion of attempted murder
and all aggravations.
8
The Discovery of Chantelle Tant
[20]
Chantelle Tant did not give evidence at the trial. According to an affidavit from the
appellant's solicitor, there was no mention of her within the Crown disclosure in advance of
trial. The appellant had not mentioned her as a person of interest prior to the trial. On
28 January 2023, some eleven months after the conclusion of the trial, the solicitors received
a message from the appellant's brother. He explained that Ms Tant might be someone of
interest to defence enquiries. A statement was taken from her on 3 February 2023. That
statement was subsequently passed to the Scottish Criminal Cases Review Commission for
consideration.
[21]
The SCCRC wrote to Ms Tant in May 2023 but she did not initially engage with
them. A petition was lodged at Edinburgh Sheriff Court seeking warrant to cite her to give
evidence on oath before a sheriff. She failed to appear in that process and a warrant for her
apprehension was sought and granted. She contacted the SCCRC on 28 November 2023 to
advise that, due to ongoing personal issues, she had been unable to engage but she was
ready and willing to provide a statement and the SCCRC interviewed her thereafter.
Ms Tant's evidence
[22]
The appellant was a friend of her ex-husband, Mark Mitchell, but Ms Tant knew him
anyway from the local area. She was aware that they had been on trial for stabbing
Mr Farrer but she had not known the complainer, although she had seen him. The only
thing she knew about the incident was what Mr Mitchell had told her. She did not go to the
police about it, thinking that they would come to see her because Mr Mitchell had had care
of the children at the time. A mutual friend, a female called Dee who lived in Muirhouse,
had told her the outcome of the trial, perhaps a week after sentence had been passed. Dee
9
was the appellant's ex-partner and she had known her for about 15 years. They spoke
briefly about what Mr Mitchell had done and Ms Tant told her how she felt about the
discrepancy in sentencing in view of what Mr Mitchell told her he had done. Dee passed her
details to the appellant's solicitors and she was contacted by them, giving them a statement
in due course before eventually speaking to someone from the SCCRC.
[23]
Mr Mitchell called her on the evening of the incident about 9pm. He told her that he
was going to stab Mr Farrer. He was at a pub in Davidson's Mains and she thought he was
with the appellant, although it sounded like he was outside when he called. She was not
aware of any animosity between Mr Mitchell and Mr Farrer and Mr Mitchell gave no reason
for his proposed course of action. She was not particularly surprised by what he said
because he was drunk and would say things like that when in that condition. She did not
think he was going to do it and hung up on him. In fact she hung up on him numerous
times and estimated that he called her 250 times that day.
[24]
Later on, perhaps about midnight, he called her again and she could hear him saying
"Ho ho ho" and "I've just stabbed him". Whether these were calls meant for her or just
pocket calls she was not sure. He was having a conversation with someone else when he
said he stabbed him. She was not clear on times but was sure about what Mr Mitchell said.
[25]
Early next morning, about 8 or 9, he contacted her to say that he had been in touch
with the police because he had stabbed Mr Farrer. He asked her to pick up the children,
who were at his sister's in Clermiston. She duly went there, in a state of panic, and, on
arrival, saw Mr Mitchell in the garden, crying.
[26]
She called him an idiot and told him to put the children in the car and get their stuff.
He said he was sorry, he had made a mistake and he should not have stabbed Mr Farrer. He
kept apologising and saying he should not have done it. He did not really tell her anything
10
about how things had happened. His sister was at the patio doors and he was at the gate.
Ms Tant saw the appellant just as the children were getting into the car. He had come from
the house. The appellant asked if the witness could drop him off at a friend's house.
Mr Mitchell was standing beside them at the gate and was still crying. The appellant did not
ask him why he was crying. When the appellant came out of the house Mr Mitchell was still
apologising and saying he should not have stabbed Mr Farrer. It was possible that the
appellant heard this.
[27]
Under reference to her interview for the SCCRC she confirmed that Mr Mitchell said
he had been wearing a Santa hat at the time and that Mr Farrer had been lying down when
he had stabbed him. He panicked afterwards and got his sister to wash his clothes. He
made no mention of the appellant being in the room but said that he had been in the house.
[28]
In cross-examination she said that the appellant was present for about one minute of
the time that Mr Mitchell was speaking. The appellant did not say anything but shook his
head at Mr Mitchell as if he (Mitchell) was off his head. She accepted that she told the
interviewing officer that the appellant was saying to Mr Mitchell that he should not have
stabbed Mr Farrer. She was telling the interviewer the truth.
The appellant's position
[29]
The appellant did not give evidence before us but relied on an affidavit. According
to this he was not aware of any contact between Mr Mitchell and Ms Tant on the evening of
the incident. He did not discuss with Mr Mitchell any calls he might have made and was
not aware of anything he might have said to Ms Tant. On the following day he woke up in
Lisa Mitchell's house. He could hear Mr Mitchell and his sister speaking and laughing.
Mr Mitchell's children were somewhere in the house. Having been to the toilet, he joined
11
Mr Mitchell and his sister in the kitchen. The former said he had been told that Mr Farrer
had been stabbed and started laughing. The appellant told him he better not have stabbed
him. He was unhappy with Mr Mitchell. Ms Tant arrived at the house and the appellant
thought he might have bumped into her as he was leaving. He was going to the house of his
friend Joe, who lived nearby.
[30]
At some point Ms Tant was in the company of Mr Mitchell and his sister but he was
not next to Mr Mitchell when he was speaking to Ms Tant. He was out of the house by that
time and they were at the front stair door. There was a garden area between them. He
asked Ms Tant for a lift and was in the car with her and the children for one or two minutes.
Neither Mr Mitchell nor his sister was in the car. Ms Tant did not tell him that Mr Mitchell
had made any admissions. He had not had any direct contact with her since. After his
appeal Ms Tant got in contact with his brother and told him what she knew. His brother
contacted his lawyers.
Submissions
The appellant
[31]
There was a reasonable explanation why the evidence had not been placed before the
court at trial. The appellant was unaware that Mr Mitchell had had conversations with
Ms Tant either prior to or after the incident. He was unaware that she could say that Mr
Mitchell had expressed an intention to stab Mr Farrer prior to the incident, or that he had
admitted to stabbing the complainer and asking Ms Mitchell to dispose of his clothes.
Ms Tant had not provided a statement to the police at the time of the incident, nor was it
known to the appellant that she was a witness to Mr Mitchell's confessions. This
explanation satisfied the requirements of s 106(3A) of the 1995 Act. The appellant
12
incriminated Mr Mitchell and would have told his solicitors had he been aware of his
admissions. Even if he had seen that Mr Mitchell was upset that would not have meant
anything unless he knew the reason why. The court should adopt a broad and flexible
approach. Razzaq v HM Advocate 2018 JC 21, para 43.
[32]
The crucial issues for the jury were those of credibility and reliability. In returning
their verdict, the jury clearly accepted Mr Mitchell to be a credible witness and preferred his
evidence to the evidence of the appellant and Ms Hughes. The evidence of Ms Tant was
directly relevant to the credibility of Mr Mitchell. Ms Tant's evidence was independent and
of such significance that it met the test set out in Al Megrahi v HM Advocate 2022 JC 99. It
would be reasonable to conclude that the verdict of the jury, reached in ignorance of its
existence, was a miscarriage of justice.
The Crown
[33]
The evidence of Ms Tant would have been admissible evidence which could have
been led by the Crown against the co-accused, which would have been of "incidental
benefit" to the accused (per LJC (Ross) in McLay v HM Advocate 1994 JC 159 at page 165).
The evidence may also have been admissible at the instance of the appellant either to put to
Mr Mitchell as a prior inconsistent statement or, in the event that the co-accused had not
given evidence by virtue of section 261 of the 1995 Act.
[34]
However, there was no reasonable explanation why the evidence had not been
adduced at trial. The correct test to be applied could be found in Razzaq, where
Lord Turnbull said, at para 43:
"If there is not a reasonable explanation of why the evidence was not heard at the
trial then questions as to the effect which it might have had at the trial do not arise
for consideration. Secondly, the onus is on the appellant to provide a reasonable
explanation for the failure to call that evidence at trial. Thirdly, it is not sufficient for
13
an appellant to state that he was not aware of the existence of the witness, or where
he was aware of the existence of the witness, that he was not aware that the witness
was able or willing to give evidence of any significance. It may be sufficient for the
appellant to show that he had no good reason for thinking that the witness, or, as the
case may be, that he would give the evidence in question. Fourthly, the court should
have regard to the interests of justice according to the circumstances of the particular
case and the underlying intention of the legislation is that the court should take a
broad and flexible approach. Fifthly, it is enough for the appellant to persuade the
court to treat the explanation as genuine and he does not require to show by full
legal proof that it is true."
[35]
The appeal should fail on a proper application of this test. The evidence of Ms Tant
was that the appellant was present when the admission was made. She said that he possibly
heard what was said. He must have heard or at least understood the nature of the exchange.
He contributed to it by telling Mr Mitchell that he should not have stabbed Mr Farrer. It was
quite clear that he would have been in a position to identify her as a potential witness and
could have told his solicitors.
[36]
In the abstract, the evidence might be capable of being regarded as credible and
reliable. However, even if the fresh evidence had been admitted the jury would not have
been bound to acquit. It was not conceded that the evidence of Ms Tant was so significant
that a miscarriage of justice had necessarily occurred. There was already significant
evidence in the course of the trial which implicated Mr Mitchell as being responsible for the
stabbing and which undermined his credibility and reliability. It was the evidence of
Mr Farrer himself that it was Mr Mitchell who stabbed him. The evidence of Ms Hughes
supported this account. Notwithstanding all of this, the jury must have rejected this
evidence and accepted the evidence of Mr Mitchell.
Analysis
[37]
In Al Megrahi v HM Advocate, at para 219, the court said the following.
14
"(1)
The court may allow an appeal against conviction on any ground only if it is
satisfied that there has been a miscarriage of justice.
(2)
In an appeal based on the existence and significance of additional evidence
not heard at the trial, the court will quash the conviction if it is satisfied that the
original jury, if it had heard the new evidence, would have been bound to acquit.
(3)
Where the court cannot be satisfied that the jury would have been bound to
acquit, it may nevertheless be satisfied that a miscarriage of justice has occurred.
(4)
Since setting aside the verdict of a jury is no light matter, before the court can
hold that there has been a miscarriage of justice it will require to be satisfied that the
additional evidence is not merely relevant but also of such significance that it will be
reasonable to conclude that the verdict of the jury, reached in ignorance of its
existence, must be regarded as a miscarriage of justice.
(5)
The decision on the issue of the significance of the additional evidence is for
the appeal court, which will require to be satisfied that it is important and of such a
kind and quality that it was likely that a reasonable jury properly directed would
have found it of material assistance in it consideration of a critical issue at the trial.
(6)
The appeal court will therefore require to be persuaded that the additional
evidence is (a) capable of being regarded as credible and reliable by a reasonable
jury, and (b) likely to have had a material bearing on, or a material part to play in,
the determination by such a jury of a critical issue at the trial."
[38]
However, before the cogency of any alleged fresh evidence can be tested under
reference to the above questions, the court must be satisfied that there is a reasonable
explanation why the evidence was not adduced at the original trial. Only if there is such an
explanation will it be necessary to go on to consider the effect it might have had if it had
been led at first instance: I(N) v HM Advocate [2018] HCJAC 66, para 31; Razzaq, para 43.
[39]
The dicta in Razzaq were a summary of the guidance in Campbell v HM Advocate 1998
JC 130. It is quite clear from Campbell that the test is an objective one. It is also clear that full
legal proof is not necessary. It is enough if the court is persuaded to treat the explanation as
genuine. However, as the Lord Justice Clerk (Cullen) said, at page 146: "... an explanation
cannot be `a reasonable explanation' if it is not adequate to account for the fact that the
witness's evidence was not heard".
15
[40]
At page 147 he went on
"Likewise, if the explanation were merely that the appellant was not aware of the
existence of the witness; or, where he was aware of the existence of the witness, he
was not aware that he was able or willing to give evidence of any significance, this
would hardly provide "a reasonable explanation". But it might be different if the
appellant also could show that at the time of the trial he had no good reason for
thinking that the witness existed or, as the case might be, that he would give the
evidence in question. Thus much might depend on the steps which the appellant
could reasonably be expected to have taken in light of what was known at the time.
The underlying intention of the legislation is that the court should take a broad and
flexible approach in taking account of the circumstances of the particular case".
[41]
The reference to the steps which the appellant could reasonably be expected to have
taken in light of what was known at the time is missing from the summary in Razzaq. It is
an important consideration and tends to undermine any suggestion that the "broad and
flexible "approach should be taken too literally and result in the bar being lowered.
[42]
Examples of what could reasonably be expected to have been done can be found in
two authorities which we invited the parties to consider.
[43]
In Barr v HM Advocate 1999 SCCR 13, there had been an issue at trial as to whether
the complainer and a witness had been too drunk to be able to give reliable evidence.
Having been convicted of assaulting the complainer in a caravan, the appellant sought to
rely on fresh evidence from three witnesses, G, Mrs G and her brother B. They were the
occupiers of a neighbouring caravan. The defence were aware that G had been in the
caravan where the assault took place and had he been precognosced it was likely that he
could have led them to Mrs G and her brother, all of whom now seemed able to give
evidence about the drinking. In these circumstances, there was no reasonable explanation
for not adducing their evidence at the trial.
[44]
In Burzala v HM Advocate 2008 SLT 61 the appellant challenged his conviction of rape
on a number of grounds. One of these was the existence of fresh evidence from the owner
16
of a club that the appellant and the complainer were kissing there. It is not necessary to
discuss whether or not such evidence would be admitted nowadays. The appeal was
refused on the basis that an obvious line of investigation prior to trial would have been to
question members of staff. Even if the appellant did not know of the owner's existence, he
was a member of a class of potential witnesses whose ability to confirm the appellant's
position could readily have been investigated.
[45]
There is no reason for us to believe one part of what Ms Tant says and not another
part. There is no clear evidence that places him in a position where he would be aware of
the telephone calls made so we are really looking at what happened when Ms Tant arrived
at the house. If she is not telling the truth about what Mr Mitchell said, either then or in his
calls, then there is nothing on which to base this appeal. However, assuming she is telling
the truth, Mr Mitchell was apologetic and crying and the appellant saw and heard that, or at
least part of it. The appellant spoke to Mr Mitchell and told him he should not have stabbed
Mr Farrer, which clearly implies that he must have heard what was going on. Even if he did
not hear it but only saw the appellant crying in Ms Tant's company, that should have
alerted him to the strong possibility that Ms Tant had something to say about Mr Mitchell. It
is fanciful to suggest he might not have known the reason for it. However, on any view of
matters, even if the appellant could not see and hear precisely what was going on, on his
own account he was aware of an interaction between Ms Tant and Mr Mitchell in the
morning after the incident. In these circumstances, applying Barr and Burzala, particularly
the former, it seems very strange for Ms Tant not to have been in the mind of the appellant.
There is no reasonable explanation why he did not alert his solicitors to her existence so as
to allow them to carry out investigations, which, if she gave a similar account, would have
led them to the earlier telephone calls as well.
17
[46]
In light of that, it is not necessary for us to consider the potential significance of
Ms Tant's account. The appeal is refused.
Postscript
[47]
The SCCRC were perfectly entitled to reach the conclusion that the proposed fresh
evidence might have been material. However, we were concerned that, given the clear
evidence of Ms Tant about the presence of the appellant when she was talking to
Mr Mitchell, the analysis of the reasonable explanation was superficial, and, in fact,
mistaken. At para 52 of the Statement of Reasons, it is said that, on the Commission's
reading of the interview, the appellant did not witness or hear the admission. This seems to
us to ignore what Ms Tant said in two parts of her interview. The first is when she told the
interviewer that the appellant came out from the stair and Mr Mitchell was still at the path
talking and crying his eyes out. The second is when she said the appellant was looking at
Mr Mitchell like he had totally lost it and telling him that he "should not have stabbed Ryan
and that he made a big mistake". This raises the clear inference that the appellant heard at
least some of the content of the conversation. It was a matter which merited more inquiry in
the course of the interview, and thereafter a detailed assessment by the SCCRC of the
question whether the threshold test could be met.
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