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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Dunn v. Her Majesty's Advocate [2002] ScotHC 322 (21 November 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/322.html Cite as: [2002] ScotHC 322

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Dunn v. Her Majesty's Advocate [2002] ScotHC 322 (21 November 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord MacLean Lady Paton	Appeal No: C290/97 OPINION OF THE COURT delivered by LORD MacLEAN in APPEAL AGAINST CONVICTION by KEVIN JOSEPH DUNN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Duguid, Q.C., J. Hamilton; Liam O'Donnell, Glasgow

Respondent: Peoples, Q.C. A.D.; Crown Agent

21 November 2002

1. The appellant, Kevin Joseph Dunn, along with one Anthony Murray, was convicted at the High Court sitting in Glasgow on 27 March 1997 of murder in the following terms:

"on 30 November 1996 in Briarwood Road, Craigneuk, Wishaw, you Anthony Murray and Kevin Joseph Dunn, acting with another did assault Andrew Longmire, 47 Laurel Drive, Craigneuk, Wishaw, now deceased, repeatedly punch him, struggle with him, force him to the ground, repeatedly kick him on the face, head and body, repeatedly stamp on his face and head and strike him on the head with a brick whereby he was so severely injured that he died later that day at Law Hospital and you did murder him".

2. The transcript of the judge's charge, the verdicts of the jury, and the court's disposal in respect of each accused, is dated "Thursday 26 March 1997". The correct date was Thursday 27 March 1997. That is just one of a number of errors in transcripts provided by the court shorthand writer, albeit a minor one compared to the others which we will consider later. In the case of the appellant the trial judge, Lord Prosser, sentenced him to be detained without limit of time in terms of section 205(2) of the Criminal Procedure (Scotland) Act 1995, the appellant being 16 years of age at the time of the offence and 17 when he was convicted.

Procedural history of the appeal

3. On 3 July 1997 a note of appeal was lodged on behalf of the appellant. It was in the following terms:

"The Crown relied upon the identification evidence of the witness Hazel Miller. The critical question is whether there was other evidence which amounted in law to corroboration. It is submitted there was not.

The potential source of corroboration was the witness Michelle McCallum. She particularly gave evidence of two comments made by Kevin Dunn. They were to the following effect:- 'He shouldn't have done what he had done'. This was in response to a question enquiring what had happened.

'He got leathered for his cheek'. This was in response to a question enquiring what he had done it for.

It is respectfully submitted that this does not amount to an admission and therefore it does not amount to corroboration."

4. Since the appellant did not give evidence nor was any led on his behalf, it must be taken that this ground of appeal reflects the appellant's counsel's unsuccessful submission at the end of the Crown case that there was no case to answer in respect of the appellant. It should be noted that this note of appeal - another note of appeal, incorporating this note of appeal but with additional grounds, was lodged much later - makes reference to a question asked of the appellant: "What he (the appellant) had done it for". The trial judge provided his report on 30 September 1997 in response to the note of appeal. Leave to appeal was granted on 7 October 1997. In his report, which was the first of three, the trial judge sets out in summary the evidence at the trial. Since none of the accused led evidence, it follows that all that evidence was led by the Crown. We will consider that evidence shortly.
5. The appeal came before the appeal court on 10 June 1998. The appeal court ordered the extension of the evidence given by witness No. 22 on the Crown list, Michelle Margaret McCallum. A transcript of that evidence was duly provided by the shorthand writer and the appeal came before the appeal court again on 15 December 1998. It became apparent at that hearing that there was a discrepancy between the note of appeal and the trial judge's report on the one hand, and the witness's evidence as it was so transcribed, on the other hand. The trial judge was asked to provide a further report which he duly did. He admitted that he was baffled by the transcript because it did not accord with his notes. He sought to explain the discrepancy by maintaining that the witness gave additional evidence about her statement to the police on the following day, Wednesday 26 March 1997. On that we are satisfied that he was mistaken. The witness was indeed recalled the next day but solely for the purpose of identifying the appellant in the dock.
6. On 6 January 1999 the appeal came before the appeal court again. It appears from the court's interlocutor that the shorthand writer on that day provided two additional pages of evidence. The court in its interlocutor of that date asked the shorthand writer to provide a further transcript indicating where the two additional pages were to be incorporated into the transcript. The court also directed the shorthand writer as follows:

"Further directed that any record of the proceedings by the shorthand writer in relation to (a) the lodging of a statement made previously by said Michelle McCallum, (b) any discussions which took place in court in respect of that statement and (c) any discussions which took place which resulted in the lodging of an excerpt of that statement for the benefit of the jury, including the lodging of same, be extended to typed format."

7. A further transcript must have been provided thereafter because we have been provided with one which includes the two additional pages. The shorthand writer, however, failed to respond to all the other directions in the interlocutor of 6 January 1999 despite several further orders of the court. On 19 December 2000 the court instructed the shorthand writer in the following terms:

"(1) To examine his transcript of the evidence given at the trial on 25

March 1997 by the witness Michelle Margaret McCallum, No. 22 on the Crown list of witnesses, and in particular to confirm the accuracy of what is recorded in lines 7 and 8 of page 25 of that transcript, or to state whether he has any shorthand note of any other words used by said witness which had not been so transcribed, such confirmation of statement to be communicated by said shorthand writer in writing to Justiciary Office within 14 days hereof, and

(2) to inform Justiciary Office in writing within 14 days hereof whether he

took the shorthand notes of the evidence given by said witness on 26 March 1997, said witness having been recalled to the witness box, and if so to produce to Justiciary Office by Monday 15 January 2001 a transcript of that evidence, certified by him."

8. By letter dated 1 January 2001 the shorthand writer responded to the court's interlocutor of 19 December 2000. He enclosed an amended transcript replacing the original transcript between page 24 line 8 and page 25 line 21. He said: "I am able to certify this transcript as accurate on the basis that I explain below". That explanation is that he still had the fax of the amended transcript he sent to the Crown Office on 5 January 1999. We note, however, that what the shorthand writer sent on 1 January 2001 is not entirely the same as the revised version of the transcript in the passage which begins "Just to reiterate Miss McCallum...". What was more important, however, was that the shorthand writer admitted that, as he had not been employed as a shorthand writer for over four years, his ability to transcribe his shorthand notes had been irrevocably lost. So he could not respond to the other instructions in the interlocutor of 19 December 2000. In particular he could not transcribe Michelle McCallum's evidence (such as it was) on 26 March 1997 or state whether he had a shorthand note of any other words used by Michelle McCallum.
9. On 5 June 2002 supplementary grounds of appeal were lodged which are referred to in correspondence as consolidated grounds. The major change from the original grounds of appeal is prefaced by the following paragraphs:

"Witness McCallum had given a statement to the police regarding this matter (conversation between the appellant and Crown witness Joseph Higgins). A copy of the said statement was not before the jury. The statement was put to the witness McCallum in evidence. A typewritten extract of the statement, prepared by the advocate depute, was put before the jury and was referred to by the trial judge in his charge. There are significant differences between the evidence of the witness McCallum in sworn testimony and the typewritten extract put before the jury. Further, the questions themselves could not have been admissible for the truth of their content but only to undermine the credibility of Joseph Higgins."

The essential, but not the only difference between the "sworn testimony" and the "typewritten extract put before the jury" is that in the latter the words "it for" are included, whereas in the former they are omitted. On either version, it is maintained, there was insufficient corroboration of eye witness evidence identifying the appellant. In the second ground of appeal which is additional to anything in the original grounds, it is submitted that evidence of the questions asked of the appellant, given by someone present who heard both the questions and the answers given by the appellant, was hearsay so far as the questions were concerned, and therefore inadmissible. The trial judge, at the request of the court, provided a third report in response to these grounds of appeal.

The evidence

10. The trial judge in his initial report records that the murder took place in Briarwood Road, Craigneuk, Wishaw. There were three assailants according to the witnesses McCrum and Lamb. McCrum identified the accused Murray as one of them but the appellant was not identified. A witness, Hazel Miller, who was looking out of her window in Gateside Road from which Briarwood Road ran off at right angles, saw three men following the deceased (who was known as "Squire") and another man from Gateside Road into Briarwood Road. She recognised at least two of the trio, and identified them as the appellant and Murray. They were out of her sight for some time. Then she saw all three return into Gateside Road where they picked up bricks from a garden there and returned to Briarwood Road. As the trial judge put it, the jury would be entitled to infer from all the evidence about the movements of the three people together that they were the same three individuals who carried out the murder. Since Hazel Miller identified the appellant as one of the trio, there was primary evidence that the appellant was one of the three who carried out the murder. According to the trial judge, Hazel Miller's mother, who was in the same room from which Hazel Miller was observing these movements, confirmed that she mentioned at the time the names of both the appellant and Murray.
11. The Crown relied for corroboration of Hazel Miller's evidence upon the evidence of Michelle McCallum who gave evidence about a conversation in her house in the early hours of the morning following the assault upon the deceased, between Joseph Higgins (known as "Poe"), and the appellant. In her evidence in chief she agreed that she had given a statement about the conversation in a police statement which she gave at 12.30 p.m. on 6 December 1997, and that what she had said in that statement was true. That statement was lodged as a late production at the end of the evidence in the trial on the motion of counsel for the appellant. The key passage is on the penultimate page of the statement. It was that passage that the advocate depute put twice to the witness in examination in chief. It reads as follows:

"'Poe' asked Kevin Dunn what happened and Kevin said 'he shouldn't have done what he had done'.

He was asked what he had done it for and he said 'He got leathered for his cheek'.

He was asked [if] what he had done was out of order, because we knew 'Squire' was dead as the police had told us there had been a murder.

Dunn said 'It couldn't have happened to a nicer guy' and then he started laughing."

12. When senior counsel for the appellant made his submission that there was no case to answer in relation to the appellant, it was on the basis that that passage of evidence from Michelle McCallum did not provide sufficient corroboration. The submission was repelled and, when the advocate depute came to address the jury which he did shortly after the court had repelled the submission of no case to answer, he was allowed by the court, without objection from counsel for the appellant, to provide a typed version of the passage we have set out above to the jury for their consideration while he addressed them. It is clear to us that that typed version, a copy of which was attached to the trial judge's second report, was the evidence in relation to this matter which everyone then thought the witness, Michelle McCallum, had given. As is apparent from the original grounds of appeal, that was the view of those who drafted those grounds.
13. Doubt was, however, cast upon this shared understanding of the witness's evidence when the various transcripts were provided because none of them included the words "it for". It is clear from two, at least, of these transcripts that the advocate depute twice asked the witness what she had said under reference to her police statement. If the transcripts were correct, the advocate depute on both occasions had failed properly to put to the witness all that she had said in her police statement. The trial judge says in his third report that if the advocate depute had not put the statement correctly to the witness, he (the trial judge) would have intervened, and it is to be noted that he did not do so.

The conclusion

14. Counsel for the appellant, understandably, maintained that we were bound by the transcript version of Michelle McCallum's evidence because it accurately reflected her evidence. He did not, however, indicate which of the three versions we should accept as accurate. As we have pointed out, all three in fact differ. We are wholly unable to accept counsel's submission because we can place no confidence in the accuracy of the transcripts, especially with regard to the critical passage. It contradicts the understanding of Michelle McCallum's evidence which everyone had at the time. To put it no higher, it would appear that the ability of the shorthand writer to read his shorthand notes accurately is in doubt. (We note that at least by January 2001 he could not read any of his shorthand notes). If the advocate depute had wrongly read out the witness's statement not once but twice, we consider that the trial judge would have noticed that and intervened to correct him. It is plain from Kyle v. H.M. Advocate 1987 S.C.C.R. 116 that the court is not bound to accept a transcript as accurate, even when it is certified as correct by the shorthand writer. In our opinion the version of the critical passage which appears on the penultimate page of Michelle McCallum's statement correctly represents what was put to her by the advocate depute and what she agreed was true. That in our opinion is her evidence.
15. The question then becomes, does that passage support, or is it capable of supporting, the evidence of Hazel Miller from which it could be inferred that the appellant was involved with two others in the violent assault upon Longmire which resulted in his death? We are in no doubt that it supports, or is capable of supporting, Hazel Miller's evidence. It was open to the jury to consider that Michelle McCallum's evidence in the second sentence of the passage was that the appellant was asked what he (the appellant) had done it (the assault) for, and the appellant said that he (the victim) got leathered for his (the victim's) cheek. That seems to us to be a reasonable reading of that sentence and one which the jury could well have made. It was submitted that the passage was not corroborative because the passage as a whole was written in the third person. That, however, in our opinion does not prevent it being read and understood as we have indicated, at least so far as its second sentence is concerned. It was also submitted that none of the answers revealed a participation in the assault. We do not agree. The second sentence is capable of being read reasonably as an admission that he, the appellant, was engaged, no doubt with others, in "leathering" the victim, Longmire. The statement by the appellant in Reilly v. Fraser 1996 S.C.C.R. 26, namely "you'd better make sure your mate's okay" as he came from the area where the complainer was found injured, is, in our opinion, quite different. It might be capable of revealing knowledge that the complainer was injured, but it was not capable of providing corroboration that the appellant participated in any assault upon him.
16. The second ground of appeal is that the evidence of Michelle McCallum relating to the questions Higgins ("Poe") asked the appellant were hearsay and were not admissible in circumstances where Higgins denied asking any questions of the appellant. No objection on that ground was taken during the trial by the appellant's counsel and so in terms of section 118(8) of the Criminal Procedure (Scotland) Act 1995 such an objection cannot be entertained now in an appeal. In any event, we agree with what the trial judge says in his third report, namely, that whenever there is an issue as to whether words were spoken by someone, it is not merely that person who can say whether they were spoken or not. Anyone who was present may be able to say whether they were spoken or not and is a competent witness as to what words were in fact spoken. This ground of appeal is therefore without substance and is rejected along with the first ground.

The decision

17. We therefore refuse both grounds of appeal and confirm the appellant's conviction.