David Callaghan v. Her Majesty’s Advocate [2021] HCJAC 4

Note of appeal against conviction:- On 4 December 2019, following a trial at Glasgow High Court, the appellant was convicted, along with his co-accused, of a charge of murder. The appellant was sentenced to life imprisonment with a punishment part of 20 years. The appellant appealed against his conviction it being contended that a miscarriage of justice had occurred due to the trial judge failing to direct the jury that a confession by the co-accused to his involvement in the attack on the deceased did not amount to evidence against the appellant. During the course of his charge the trial judge told the jury that the issue for them in relation to the appellant was one of identification and he went on to provide directions on how to deal with the identification evidence relating to the appellant. The trial judge gave the jury directions in relation to the identification evidence as it related to the co-accused, including a purported admission made by the co-accused. The trial judge told the jury that they required to return separate verdicts against the appellant and the co-accused and told the jury that one piece of evidence could apply to both accused but he had not gone on to tell them that some evidence did not apply to both, including the purported admission by the co-accused in relation to his involvement. It was submitted on behalf of the appellant that the trial judge was bound to provide the jury with a direction that an incriminatory statement by a co-accused, outwith the presence of another accused, was not evidence against that other accused. It was submitted that the admission by the co-accused that he and someone else had chased the deceased and that the other person had stabbed him first before the co-accused stabbed him had created a connection between the co-accused and the appellant and was capable of supporting the other eye-witness evidence as it related to the appellant. It was further submitted that, in the absence of a direction that the admission was only evidence against the co-accused, a different result may have followed and the misdirection was material and resulted in a miscarriage of justice. On behalf of the Crown it was submitted that there was nothing in the co-accused’s statement to link him to the appellant and the directions given were appropriate for the particular circumstances of the case. Here the court refused the appeal. The court considered that whilst a statement made by one accused outwith the presence of another accused is inadmissible as evidence against that other accused in the present case the statement by the co-accused was not incriminatory of the appellant and no direction to the jury to disregard the statement of the co- accused in relation to the case against the appellant was required. The court described the trial judge’s directions as succinct, clear and accurate and appropriate in light of the live issues in the trial.