Darren James Hughes v. His Majesty’s Advocate [2022] HCJAC 44

Note of appeal against conviction:- On 3 February, following a trial at Glasgow High Court, the appellant was convicted of two charges:- (1) an assault on his sister, Ashley Hughes, by entering her flat in Edinburgh uninvited, punching her on the head and kicking her on the body, all to her injury; and (2) assaulting Ryan Farrer by punching and kicking him on the head and body and stabbing him repeatedly, all to his severe injury, permanent disfigurement, to the danger of his life and attempting to murder him. A co-accused, Mark Mitchell, was also convicted of both charges but under deletion of the aggravations and the attempted murder. On 7 April 2022, following the obtaining of a Criminal Justice Social Work Report, the appellant was sentenced to 9 years imprisonment and his co- accused to 18 months imprisonment. The appellant appealed against his conviction it being contended that the trial judge erred in refusing to allow the appellant to lead evidence under section 267(2) of the Criminal Procedure (Scotland) Act 1995 from Danielle Farrer, the complainer in charge 2’s sister, who had not been on the defence list of witnesses and had been present in the courtroom during the first two days of the trial. Whilst section 78(4) of the 1995 Act provides that an accused cannot examine any witness unless advanced written notice of the name and address of the person has been given “unless the court, on cause shown, otherwise directs”. Section 267 of the Act states that a court can allow a person to be in court before he has given evidence if that is not contrary to the interests of justice. Danielle Farrer had been observing the proceedings throughout the trial. At the conclusion of Mrs Farrer’s evidence (Danielle’s mother), she asked if she could ask a question and was told that she could not. She later told the Crown that her daughter (Danielle) had information about the case and police then took a statement from Miss Farrer. The appellant moved to lodge a supplementary list of witnesses containing

Miss Farrer’s name and to admit her evidence. The application was not opposed by the Crown, however, the co-accused’s counsel opposed the application on the basis that the witness had sat through all the evidence for the Crown. The trial judge allowed the late witness list to be lodged “on cause shown” but refused to allow the witness to give evidence under section 267(2) on the basis that the witness had been present in court for two days, during which time the fundamental and important testimony was led and it was highly likely that she would be influenced by what had taken place in court, the onus lying on the person seeking to adduce the testimony (Macdonald v Mackenzie 1947 JC 169) and that onus had not been discharged in the present circumstances, in particular, because the witness had not given the same information to the police in advance of the trial. It was submitted on behalf of the appellant that whilst the trial judge had correctly identified the test but to be applied, namely:- (1) was the presence of the witness as a result of culpable negligence or criminal intent?; and (2) had the witness been unduly instructed or influenced by what had taken place that injustice would result? It was submitted, however, that the trial judge had placed inappropriate weight on considerations that were of no relevance or significance, namely, 

whether the witness had identified herself as a potential witness in advance of trial. It was submitted that the evidence of the complainer’s sister, who was neutral as far as the two accused were concerned, would have significantly supported the evidence of what the complainer had said to the police and therefore material evidence had been withheld from the trial and a miscarriage of justice had occurred. On behalf of the Crown it was submitted that the two cumulative tests in section 267(2) had to be fulfilled before a judge could exercise his discretion to admit the witness and in the present case the judge had applied the test in the correct way. Whilst the first test had been met, however, in relation to the second test, the judge was entitled to conclude that the appellant had failed to demonstrate that the witness had not been unduly instructed or influenced by what had taken place in the courtroom and no miscarriage of justice had occurred. Here the court refused the appeal. The court considered that the view taken by the trial judge that the witness, having sat through the most fundamental and important passages of evidence, that it was highly likely that the witness would have been influenced by what she had seen and heard during the trial, was a reasonable one in the circumstances. The court went on to state that given what the witness was to speak to, in effect similar evidence to what had already been led elsewhere in the trial, the evidence sought to be introduced had little evidential value and no miscarriage of justice occurred.