Murderer who claimed ‘miscarriage of justice’ over 999 call evidence loses appeal against conviction
A man found guilty of murder who claimed that the trial judge’s decision to refuse to allow part of a 999 call to be played in court, during which recording a voice could be heard saying words to the effect that one of his co-accused “did it”, has had an appeal against his conviction rejected.
The Appeal Court of the High Court of Justiciary ruled that the trial judge was correct to conclude that the recording was “hearsay evidence” and therefore “inadmissible”, and that in any event there was no miscarriage of justice given the evidence against the appellant.
The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull, heard that the appellant Jamie Cook and two others, his father James Cook and a co-accused Peter Brown, were unanimously convicted of murdering Jason McCue in July 2017, following a “square go” in a park in Strathaven.
There was evidence of a concerted attack on the deceased, who suffered several stab wounds, one of which pierced the right ventricle of the heart, causing death.
The court was told that a 999 call was made by Nicola Robertson, an office administrator who was in the park at the time of the incident, who administered CPR to the deceased on the instructions of the 999 operator.
The advocate depute intended to play the 999 recording during the evidence of this witness, but she became upset about that prospect and the recording was not played.
A transcript of the recording was agreed by joint minute, but it did not contain the words, heard in the background of the recording, said to be along the lines “Peter did that”.
In the course of the evidence of Colin Inglis, one of several men who attended the park for the fight, the witness was asked about certain statements he was said to have made, or heard, implicating Peter Brown, but he was “evasive and contradictory” in the evidence he gave.
‘Miscarriage of Justice’
It was at this point that counsel for the appellant asked to play the recording to the witness, failing which asked for the trial to be deserted.
But the trial judge refused both motions and the appellant was ultimately convicted on an “art and part” basis.
However, the appellant claimed that his conviction constituted a “miscarriage of justice” because the trial judge had erred in refusing to allow that section of the recording to be played during the cross examination of three of the Crown witnesses.
It was submitted that only if the speaker remained unidentified would the evidence be inadmissible hearsay.
There was “every possibility” that asked on oath Inglis could have accepted that it was his voice.
Under reference to the case of Gubinas v HM Advocate 2018 JC 45, it was also argued that the jury ought to have been directed that they could form their own conclusions as to the identity of the speaker, and consequently the inference to be drawn from it, namely that the co-accused Brown had fatally stabbed the deceased.
The evidence was not inadmissible at the time counsel sought to elicit it: it would only have become inadmissible if no witness attributed it to anyone; and the jury were unable to attribute it to anyone for themselves.
Refusing the appeal, the judges ruled that the background voice on the 999 recording was “clearly hearsay evidence”.
Delivering the opinion of the court, the Lord Justice Clerk said: “The trial judge was in our view correct to conclude that it would not be proper to allow questions to be asked about the background remark knowing full well the position adopted by each of these witnesses. The effect would have been to elicit inadmissible hearsay which the trial judge would have had to have directed the jury to ignore.
“The implication in the submissions for the appellant was that since the Crown might have played the 999 tape during the evidence of the witness Robertson, it thereby became available for any use whatsoever. That is not correct. In our view the trial judge was correct to refuse to allow the extract to be played for the purpose sought.”
Lady Dorrian continued: “As to the case of Gubinas, the jury’s entitlement to reach a conclusion about a matter such as identification, or the maker of the statement, is predicated both on the evidence being admissible and on it being reasonably possible to make a comparison. The evidence being inadmissible hearsay, no issue under Gubinas can arise.”
Even if the judges had been persuaded that the trial judge had erred, the court would not have been able to conclude that there had been a miscarriage of justice.
“There was a body of evidence available to the jury capable of demonstrating that the appellant was party to a common criminal purpose to assault the deceased with weapons including a knife or knives and the jury were entitled to convict of murder,” the Lord Justice Clerk said.
The trial had heard that both Brown and the appellant were in possession of a knife.
Ms Robertson gave evidence that as the three accused stood over the deceased, the appellant exchanged shouted remarks with Inglis at the other end of the park.
Inglis shouted, “I didn’t do anything to you, I didn’t stab you” and the appellant replied, “no but he did,” seeming to refer to the deceased - there was evidence that the appellant was stabbed during the fracas.
This was followed by the words from the appellant, “this is payback for stabbing me”.
The court concluded: “Against the background of evidence of a concerted attack by both accused, in which both had a knife, the alleged statement does not exclude the guilt, art and part of the appellant, and it would be impossible to consider that exclusion of the evidence in question had led to a miscarriage of justice.”
© Scottish Legal News Ltd 2019