Issue 44 January 2009 - Current Awareness, Art.6 & evidence

Harkins v HM Advocate [2008] HCJAC 69

H appealed her conviction for murder when acting with a co-accused. The ground of appeal in question concerns the admission in evidence of a statement made to a police officer by a witness, Ann O'Brian, who had died prior to the trial. It was not in dispute that all of the procedure for the giving of notice of the intention to lead this hearsay evidence of a deceased witness in terms of s.259 of the Criminal Procedure (Scotland) Act 1995 was observed. The issue was whether the admission of the hearsay evidence rendered the trial unfair and thus led to a contravention of art.6,notwithstanding the other evidence marshalled against the appellant and the terms of the trial judge's directions to the jury respecting this hearsay evidence. H contended that the hearsay evidence was strong evidence against her but was also wholly unreliable and should not have been admitted. It was argued that the evidence of the deceased was riddled with inconsistencies and her reliability was in doubt because she had been a heroin addict.  

Held: appeal dismissed.

(1) At the close of the Crown case for the trial judge to decide was whether, bearing in mind the possible directions which he might to give, the inability of counsel for the appellant to cross-examine Ms O'Brian, because she was dead, had the consequence that the allowance of the hearsay evidence rendered the trial unfair.

(2) An element in the consideration of that issue is whether the hearsay evidence was the sole, or the "decisive" evidence against the appellant. There was a body of other evidence against the appellant. Among other adminicles of evidence, there was the CCTV evidence showing the appellant and her co-accused entering together the building in which the flat of the deceased and of them both leaving together on the relevant date carrying bags containing items subsequently identified as being from the deceased's flat.

(3) In her police interview H admitted her presence in the flat at the material time. She admitted to the police that when they left there was "a fair bit of blood" on the face of the deceased; and that she left with items from the deceased's house including the jewellery box which was shown to have been stained with the deceased's blood. H further admitted to having immediately washed both the denim jeans which she had worn in the flat and those worn by her co-accused. There was also the evidence from another man respecting a conversation between him, H and the co-accused in which, in the context of there being a fight, and H admitted to having hit the deceased with a table leg. Having regard to this and other features of the evidence, the trial judge was entitled to reach the view that the hearsay evidence, while important, was not to be characterised as being the sole or decisive evidence against the appellant.

(4) The real question was whether the inability of counsel for H at the trial to cross-examine Ms O'Brian in person so handicapped the defence as to render the trial unfair. In the case of the admission of hearsay evidence the extent to which the circumstances, and the material available to the defence, enable the defence to challenge the reliability or may be very relevant to the ultimate underlying question of fairness.

(5) A heightened importance or significance of the hearsay evidence may well be counterbalanced by circumstances which allow for the credibility and reliability of the maker of the reported statement to be seriously challenged. Conversely in a case where there is little possibility of challenge to the credibility or reliability of the maker of the statement the importance or significance of the statement may become crucial to the fairness of the criminal process against the accused.

(6) In the present case the fact of Ms O'Brian's being a heroin addict was plainly and squarely before the jury. Counsel was also able to point to at least 10 conflicts between what she said and other, more objective evidence. So there was much material, which counsel was well able to, and did, deploy before the jury by way of attack on the reliability and credibility of Ms O'Brian's reported statement. On the other hand, the court noted that there were features in the account of what the appellant said to Ms O'Brian which might indicate "special knowledge", such as, among others, the breaking out of the door of the deceased and the leaving of the windows wide open, which was consistent with other evidence and which might support the reliability of the reported statement.

(7) In his charge to the jury the trial judge gave extensive and careful directions respecting the status of the hearsay evidence, given by the detective sergeant, of the statements against interest which Ann O'Brian, said she had heard from the appellant when the appellant and Ms O'Brian had met. He alerted them specifically to the inability of counsel to cross examine the deceased witness; and the jury's inability to assess her demeanour. He reminded the jury of all the criticisms of the reliability of the deceased narrative of the appellant's remarks to her and suggested appropriate caution. The trial judge did everything that was necessary to ensure a fair trial.