Factual and Procedural Background
The Appellant and co-accused were convicted of attempted murder and robbery following an assault on the Complainer at his home in Maybole on 11 December 2019. The Appellant was sentenced to 10 years' imprisonment. The central issue at trial was identification, as the commission of the crime was undisputed. The Complainer was violently attacked with a machete or similar weapon, sustaining severe injuries. Evidence included descriptions from the Complainer, witness testimony, CCTV footage, DNA evidence linking the co-accused to the crime, and the Appellant's inconsistent accounts to the police, including a withdrawn alibi.
Prior to trial, both accused lodged notices of intention to incriminate each other and a third person, Alan Craik. The Appellant challenged his conviction on appeal, seeking to introduce fresh evidence from a witness, Danielle Egan, concerning statements and conduct of Alan Craik, who was alleged to have been involved in the crime.
The appeal court heard evidence from the Appellant, Jade McDonald (the Appellant's partner), and Ms. Egan under reservation of its admissibility and significance. The court considered statutory provisions regarding fresh evidence, hearsay exceptions, and the legal standards for allowing appeals based on new evidence.
Legal Issues Presented
- Whether the fresh evidence from Danielle Egan concerning Alan Craik is admissible, credible, and reliable.
- Whether there is a reasonable explanation for the fresh evidence not being presented at trial.
- Whether the fresh evidence is of such significance that its absence at trial caused a miscarriage of justice.
- Whether the appeal court should admit and consider the fresh evidence in light of the tactical decisions made at trial.
Arguments of the Parties
Appellant's Arguments
- The fresh evidence indicates a third party, Alan Craik, was involved in the crime, which challenges the identification of the Appellant as the attacker.
- The absence of blood stains on the Appellant, discrepancies in height and shoe size compared to the assailant, and CCTV footage support the possibility of another perpetrator.
- Ms. Egan's evidence about Mr. Craik’s purchase of a machete and his bloodstained appearance is significant incriminating evidence.
- The court should apply the test from Megrahi v HM Advocate (2002) regarding fresh evidence and consider that a miscarriage of justice occurred in the absence of this evidence.
- There is a reasonable explanation for not adducing Ms. Egan’s evidence at trial as it was unknown until after the trial concluded.
Respondent's Arguments
- The evidence from Ms. Egan relating to Mr. Craik’s statements is inadmissible hearsay and should not be considered.
- The Appellant’s legal team did not seek to adjourn the trial to investigate Mr. Craik despite having notice of his name.
- There is no reasonable explanation for the failure to present this evidence at trial.
- The discrepancies and inconsistencies in Ms. Egan’s evidence undermine its credibility and reliability.
- Even if credible, the evidence is not of such significance as to demonstrate a miscarriage of justice.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Megrahi v HM Advocate 2002 JC 99 |
Guidance on fresh evidence appeals: miscarriage of justice test and significance of new evidence. |
Applied to assess whether the fresh evidence from Ms. Egan was credible, reliable, and significant enough to warrant quashing the conviction. |
| Mills v HM Advocate 1999 JC 216 |
Policy on tactical decisions not to lead evidence of an incriminee at trial and limits on adducing such evidence on appeal. |
Used to conclude that the Appellant’s failure to investigate or adduce evidence about Mr. Craik at trial was a tactical decision precluding admission of the evidence on appeal. |
| Fraser v HM Advocate 2008 SCCR 407 |
Importance of assessing new evidence in the context of the entire trial evidence. |
Guided the court’s detailed comparison of Ms. Egan’s evidence against the trial evidence to determine its significance. |
| Geddes v HM Advocate 2015 JC 229 |
Strength and effect of circumstantial evidence in supporting identification. |
Referenced to illustrate the robustness of the circumstantial case against the Appellant despite discrepancies. |
| Docherty v HM Advocate 2010 SCL 874 |
Incriminating conduct and its relevance to the jury's assessment. |
Supported the view that the Appellant’s false and inconsistent statements were capable of being viewed as incriminating. |
| Burzala v HM Advocate 2008 SLT 61 |
Considerations on defective representation and new evidence grounds on appeal. |
Cited approvingly in relation to tactical decisions affecting evidence admissibility on appeal. |
| Williamson v HM Advocate 1980 JC 22 |
Materiality of changes of position to the jury's assessment of evidence. |
Referenced to affirm that the Appellant’s changing accounts were relevant to credibility. |
| Finnegan v HM Advocate 2025 JC 20 |
Admissibility of res gestae statements as evidence implicating the accused. |
Applied to admit the Complainer’s statement naming “Barry” during the attack as evidence against the Appellant. |
| Hughes v HM Advocate [2024] HCJAC 48 |
Requirement of reasonable explanation for non-disclosure of evidence at trial. |
Referenced regarding the necessity of the Appellant’s knowledge of Mr. Craik’s involvement for any explanation to be reasonable. |
Court's Reasoning and Analysis
The court began by applying the statutory framework under section 106(3) of the Criminal Procedure (Scotland) Act 1995 and the guidance from Megrahi v HM Advocate. It noted that fresh evidence must be credible, reliable, and of such significance that its absence caused a miscarriage of justice. The court found that Ms. Egan’s evidence about Mr. Craik’s purchase of a machete and bloodstained clothing was admissible only to a limited extent, as the statements Mr. Craik made to her were inadmissible hearsay not covered by statutory exceptions.
The court assessed the evidence in the context of the strong circumstantial case against the Appellant, including identification evidence, DNA linking the co-accused, the Complainer’s res gestae statement naming “Barry,” and the Appellant’s false and inconsistent accounts to police. It found that the limited admissible evidence from Ms. Egan was not of such material significance as to undermine the conviction.
Further, the court considered the tactical decision by the Appellant and his legal team not to investigate or adduce evidence related to Mr. Craik at trial, despite knowledge of his name and background. This aligned with the principles in Mills v HM Advocate that limit the introduction of such evidence on appeal when the defence had the opportunity but chose not to pursue it.
The court also expressed doubts about the credibility and reliability of Ms. Egan’s evidence due to significant discrepancies between her affidavit, oral evidence, and police statements, as well as her explanations related to health conditions. It concluded that a reasonable jury would likely reject her evidence.
Overall, the court determined that the fresh evidence did not meet the threshold for overturning the conviction and that no miscarriage of justice arose from its absence at trial.
Holding and Implications
The court REFUSED the appeal against conviction.
The direct effect is that the Appellant's conviction and sentence remain upheld. The decision confirms that fresh evidence must be both credible and materially significant to justify overturning a conviction, especially where tactical decisions at trial limited the scope for adducing such evidence. No new precedent was established beyond reaffirming established principles on fresh evidence and appeal procedures.