Glasgow murderer who killed man with machete outside pub loses appeal against conviction

David Callaghan appealed on the ground that the trial judge did not direct the jury that the confession of his co-accused to his participation on the attack on Owen Hassan did not constitute evidence against him.

The appeal was heard in the Appeal Court of the High Court of Justiciary by the Lord Justice General, Lord Carloway, sitting with Lord Turnbull and Lord Pentland.

Did not identify other man 

The deceased had formed a relationship with the co-accused’s ex-girlfriend, SK, sometime between March and June 2018. On 6 November 2018, the day before the murder, the deceased and another person assaulted another man, SM, outside the Old Stag Inn, which was run by the deceased’s mother, Anne Marie Lynch, and asked him to tell the co-accused that “his cards are marked and his time is coming.” 

On 7 November 2018, the appellant and the co-accused were in frequent telephone contact throughout the day. CCTV images showed a taxi booked by the co-accused at Ashtree Road, near the Old Stag Inn in Pollockshaws, at about 10:15pm, as well as two men appearing from the underpass which linked Ashtree to a road leading to the Inn. 

The deceased was caught by the two men after he left the Inn and attacked with machetes. He died from multiple stab wounds, including one to the heart. The co-accused was identified by Ms Lynch and another person, James Nolan, at the scene. The other man, who was across the road by time Ms Lynch took hold of the co-accused, was identified by her as the appellant. 

A friend of the deceased, Steven Ward, gave evidence that the co-accused confessed to him that he was involved in his death, but did not identify the other man who stabbed him. In his charge to the jury, the trial judge explained that hearsay evidence was generally not admissible but there was an exception for admissions made by an accused against their own interest. 

The trial judge went on to say that the live issue in respect of a route to conviction for the appellant was identification. He said that the jury could corroborate the evidence of Ms Lynch with the other eye-witness identification, the telephone evidence, clothing and gait analysis, or with the co-accused’s confession to Mr Ward. 

It was submitted for the appellant that the trial judge had failed to direct the jury that, while one piece of evidence could apply to both accused, some evidence did not apply to both. There was no direction that the confession was only relevant to the co-accused, and it would not have been obvious to the jury that this was the case. Had this matter been clear a different result may have followed, therefore giving rise to a miscarriage of justice. 

Not incriminatory of accused 

The opinion of the court was delivered by Lord Carloway. He said of the effect of the co-accused’s confession: “The evidence is, of course, admissible as a generality in a trial which proceeds against both accused as a statement against the interests of its maker; but its incriminatory effect must be restricted to the case against its maker. Where, therefore, it contains material which is incriminatory of another accused, a trial judge ought to direct the jury to disregard that element in so far as it is so incriminatory.” 

He continued: “If the content of the statement is not incriminatory of the other accused, whether directly or indirectly, no difficulty arises. In that event, there is no need for such a direction. In this case, the statement by the co-accused was not incriminatory of the appellant.” 

Explaining the court’s reasoning for this finding, he went on to say: “It may be that the jury considered that the confession by the co-accused lent some credence to the eye-witness identification of the co-accused by both Ms Lynch and Mr Nolan. That may have influenced the jury in regarding Ms Lynch as credible and reliable on identification more generally.” 

He continued: “Whether that is so or not, the statement contains no material which could have been used to prove the appellant’s involvement and that is the critical element.” 

Lord Carloway concluded: “There is no reason to suppose that the jury left the route upon which they were directed and embarked upon another whereby they took into account off-piste material. The relevance of the co-accused’s confession was only mentioned by the trial judge in the case against him. The trial judge’s directions were succinct, clear and accurate, having regard to the live issues at trial.” 

For these reasons, the appeal was refused.