McLeary & Anor, R. v (Rev1)

Factual and Procedural Background

This appeal arises from a fatal stabbing at a flat at High Cross Keys on the morning of 28 April 2023 in which the Victim died of a single stab wound to the heart. The flat was occupied by the First Appellant and their partner; the Victim had been staying there. A late-night gathering involved widespread Class A drug use. Violence erupted shortly before 08:00 and the Victim was stabbed in the living room and later collapsed in the foyer; CCTV shows his final moments. The First Appellant was unanimously convicted of murder on 20 April 2024. The Second Appellant was convicted by a majority (10-2) of murder on the same date. Three others were convicted or pleaded guilty to assisting an offender; one had pleaded guilty. Sentences were life imprisonment with minimum terms of 19 years (First Appellant) and 16½ years (Second Appellant). Leave to appeal was granted by the Full Court on 26 February 2026.

Legal Issues Presented

1. Whether the trial judge erred in admitting the hearsay statement of Witness A under the Criminal Justice Act 2003 (s116, s124, s126) and/or PACE s78.
2. Whether the trial judge should have upheld a submission of no case to answer in respect of the Second Appellant.
3. Whether prosecution counsel's closing submissions invited the jury to rely on matters not advanced in evidence (as alleged by the Second Appellant).

Arguments of the Parties

First Appellant's Arguments

• The hearsay statement of Witness A should not have been admitted; reliability had to be assessed at admission and the statement was not "potentially safely reliable".
• The admitted statement was profoundly and multi‑facetedly unreliable and its admission improperly left the matter to the jury.
• The admission unfairly prejudiced the First Appellant, including via cross-impact from co‑defendant material.

Second Appellant's Arguments

• Ground 1: Same challenge to the admission of Witness A's hearsay statement for the reasons advanced by the First Appellant.
• Ground 2: At the close of the prosecution case there was no sufficiency of evidence for a properly directed jury to convict the Second Appellant (no case to answer).
• Ground 3: Prosecuting counsel, in closing, invited the jury to rely on matters not put before them, including motives for conduct when the Victim was dying, the significance of a nail file, and unexplained blood spatter.

Respondent's Arguments

• The trial judge applied the correct statutory tests and relevant authorities when admitting Witness A's statement and properly considered exclusion under PACE s78 and CJA 2003 s126.
• The materials impugning Witness A's reliability were fully before the jury and appropriate directions were given; reliability and weight were matters for the jury.
• Comments in closing were, in the respondent's submission, permissible comment on the evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the admissibility of the hearsay statement of Witness A under the Criminal Justice Act 2003 (s116 gateway for unavailable witnesses, s124 on credibility, and s126 on exclusion) and PACE s78. It applied the multi‑step approach derived from Riat and considered subsequent restatement in R v BOB and the pre‑condition in Ibrahim that a hearsay statement be "potentially safely reliable" at the point of admission.

The court examined the material available to test Witness A's reliability (including prior inconsistent accounts, agreed background facts about her credibility, hospitalisation, cautioned police interviews, and the prosecution's concession not to rely on a stated reason for earlier non‑disclosure). The trial judge's ruling that there was "ample" material to test credibility and that any prejudice could be managed by directions was treated as within the permissible exercise of judicial discretion. The court emphasised that prior inconsistent statements are admissible under s124 to allow the jury to assess reliability and do not automatically render later statements inadmissible.

On the Second Appellant's no‑case submission, the court applied the standard test (whether the evidence, taken at its highest, could support a conviction by a properly directed jury). Relying on Jogee's formulation of secondary liability, the court analysed whether the evidence established participation (assistance or encouragement) and the requisite mental element. The court concluded the evidence amounted only to presence and, at most, minimal conduct (standing in the doorway, arm across the doorway) that did not suffice to establish participation or intent to encourage/assist. Therefore the trial judge should have upheld the no‑case submission for the Second Appellant.

The court briefly addressed the complaint about prosecutorial closing remarks, noting those comments invited speculation beyond the evidence and that juries should not be asked to speculate; however, because the Second Appellant's conviction was quashed on the no‑case ground, detailed resolution of that complaint was unnecessary.

Holding and Implications

HOLDING:

The court dismissed the First Appellant's appeal and upheld the conviction. The court allowed the Second Appellant's second ground of appeal, concluded the trial judge should have upheld the submission of no case to answer, and accordingly QUASHED the Second Appellant's conviction.

Implications:

• Direct effect: The First Appellant's conviction for murder remains safe; the Second Appellant's murder conviction is unsafe and quashed. No retrial was ordered for the Second Appellant.
• No new legal precedent was created; the court applied existing authorities (Riat, Ibrahim, BOB, Jogee, Cole and Keet) and confirmed their application to the facts.