High Court refuses appeal against attempted murder conviction after finding evidence from complainer deliberately not led

About this case:

• Citation:
  [2026] HCJAC 9
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Pentland

Kassim Nicholas, who was given a 12-year extended sentence for the offence and another conviction for assault, appealed against his conviction under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995 on the ground that allegedly significant evidence was not heard at his trial, namely an affidavit from David Denny, the complainer on the attempted murder charge.

The appeal was heard by the Lord Justice General, Lord Pentland, with Lord Matthews and Lord Armstrong. Ogg, solicitor advocate, appeared for the appellant and Kennan KC, advocate depute, for the Crown.

Never crossed counsel’s mind

Following trial, the appellant was convicted of assaulting the now deceased Beren McLaughlin alongside other individuals, and of attempting to murder Mr Denny by hitting him with his car. Mr Denny appeared in the list of Crown witnesses, however at the time of trial he was detained in hospital on a short-term detention certificate. A soul and conscience certificate signed by a consultant psychiatrist at the Royal Edinburgh Hospital certified him not to be fit to attend trial two days before the start of the trial diet. The certificate said that Mr Denny would not be fit to attend trial for at least four weeks, but the defence did not seek to adjourn the trial.

The evidence presented at trial included a joint minute agreeing that the appellant was the registered keeper of the relevant vehicle, a BMW, and that Mr Denny’s DNA was found in blood on the footpath at the locus, on the bonnet, windscreen and roof of the BMW, and on the back seat of a taxi owned by another witness, Abdul Mukit. Mr Mukit gave evidence that Mr Denny got into his taxi while bleeding very badly and asked him to drive away quickly. He then called 999 and put the operator on loudspeaker, with Mr Denny telling the operator “someone stabbed me but I’m all right”. Further evidence was given by the police constable who found the appellant in his BMW, with photographs of the damaged vehicle also provided.

In an affidavit dated 5 August 2025, Mr Denny explained that he had recently been released from hospital and found out that the appellant had been found guilty of a serious assault on him. He said he was not contacted about attending trial as a witness and he had in fact been stabbed by another unidentified person. Mr Denny had in fact gotten out of his car to help him. For the appellant it was submitted that the information supplied by Mr Denny was not known prior to the trial and it had never crossed trial counsel’s mind to devote any time to any attempt to precognosce him.

For the Crown it was submitted that it had been open to the defence to adjourn the trial in light of the soul and conscience certificate. A tactical decision had been taken not to seek to adjourn the trial in circumstances where the potential significance of the evidence must have been known to the appellant.

Strategic and tactical decision

Delivering the opinion of the court, Lord Pentland said of whether there was a reasonable explanation for not leading this evidence: “The appellant was aware long before the trial of the fact that Mr Denny was a potential witness. He was listed as such on the indictment. The view was taken by the defence that there was nothing to be gained by attempting to trace him or to seek to lead him in evidence. This was a strategic or tactical decision which can only have been made on the basis of the appellant’s instructions.”

He continued: “At the preliminary hearing on 21 March 2024, it was stated by senior counsel then appearing on behalf of the appellant (who later conducted the trial) that the defence did not require the evidence of any of the Crown witnesses. That disclaimer applied to Mr Denny. Presumably this decision was made on the basis of instructions given by the appellant. It is difficult to understand how the view could have been taken that the evidence of Mr Denny was not required by the defence if there is any substance in the contents of his affidavit. His account of events would have exculpated the appellant, who would have been aware of all that Mr Denny claims to have happened.”

Considering what the appellant was seeking to gain out of the appeal, Lord Pentland said: “Essentially what the appellant now wishes to do is to advance a line of defence which would be fundamentally different from the one he adopted throughout the proceedings. He does not seek merely to bolster his previous defence, but to reconstruct the defence altogether. We consider that to allow the new evidence to be introduced for this purpose would be entirely contrary to the interests of justice. It would in effect permit the appellant to avoid the consequences of strategic and tactical decisions responsibly taken on advice from his previous senior counsel and solicitors and based on his instructions.”

He concluded: “Such a course would undermine the principle of finality to an unacceptable degree. Where an appellant seeks to have fresh evidence admitted, he must at least demonstrate that he has exhausted all reasonable inquiries into the existence, availability and content of such evidence. The appellant has signally failed to do this.”

The appeal was therefore refused.