Barry Marshall v. His Majesty’s Advocate [2025] HCJAC 20

Note of appeal against conviction:- Following a trial at the High Court, the appellant and his co-accused, Marion Hawkins, were convicted after trial of attempted murder and robbery. The appellant was sentenced to imprisonment for 10 years. The issue in the trial was identification, there being no dispute that the crime was committed. The appellant appealed against his conviction under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995 on the grounds of evidence, not heard at trial, from Danielle Egan about various matters including that her former partner Alan Craik confessed that he and Marion Hawkins had committed the crime. On 12 March 2025, the court heard evidence from three witnesses, namely, the appellant, Jade McDonald and Ms Egan under reservation of its significance and whether there was a reasonable explanation why it was not heard at trial in terms of subsection 3(A). The appellant gave evidence and called Ms McDonald in support of there being a reasonable explanation why he did not adduce the evidence of Ms Egan at trial. It was submitted on behalf of the appellant that Ms Egan’s evidence was likely to have had a material part to play in the jury’s determination of a critical issue at the trial, that the evidence was capable of being accepted as credible and reliable and was of such significance that a miscarriage of justice occurred in its absence. On behalf of the Crown it was submitted that the appellant’s representatives had not raised the matter with the Crown in advance of the trial to enable any inquiry to be carried out and by the time it had been raised the decision was taken not to carry out any further investigations. It was further submitted that much of Ms Egan’s evidence was inadmissible hearsay and her evidence was incapable of being viewed by a reasonable jury as credible and reliable due to the various material discrepancies and the evidence was not of such significance for its absence to amount to a miscarriage of justice occurring. Furthermore, no reasonable explanation had been put forward by the defence as to why the evidence had not been adduced at the trial. Here the court refused the appeal. The court stated that the only admissible evidence that Ms Egan was able to give was that Mr Craik bought a machete in May 2019, round 7 months before the commission of the crime and that he had blood on his white jumper when he attended at her house late one night in December 2019 with blood on his nose. There was, however, no evidence that the male attacker received any blow to his nose. The court considered that evidence against the body of evidence implicating the appellant and considered that it could not accept that the absence of such limited admissible evidence from Ms Egan was of such significance that its absence from the trial gave rise to a miscarriage of justice. The court also noted that in the trial the jury heard evidence from Ms Hawkins that the crime was committed not by her and not by the appellant but by Alan Craik but by convicting both Ms Hawkins and the appellant, the jury rejected that evidence.