Man convicted of attempted murder fails in appeal against conviction on grounds that court disallowed testimony of victim’s sister

Man convicted of attempted murder fails in appeal against conviction on grounds that court disallowed testimony of victim’s sister

A man who was convicted of assaulting his sister and attempting to murder another man at her Edinburgh flat along with a co-accused and was sentenced to nine years’ imprisonment has lost an appeal against conviction in the High Court of Justiciary.

It was argued by appellant Darren Hughes, who along with Mark Mitchell had assaulted Ashley Hughes and Ryan Farrer, that the trial judge ought to have allowed Mr Farrer’s sister to testify. While the Crown had not objected to the initial application to add her to the witness list, it argued that the judge had been correct to refuse to admit her at a witness.

The appeal was heard by the Lord Justice General, Lord Carloway, sitting with Lord Boyd of Duncansby and Lady Wise. S Collins, solicitor advocate, appeared for the appellant and G Anderson KC for the Crown.

Present in the courtroom

On 3 February 2022 the appellant was convicted of two charges relating to an incident that took place in December 2019 at an address in Pilton, Edinburgh. The first was of entering the flat of his sister, Ashley Hughes, uninvited, punching her on the head and kicking her on the body to severe injury. The second was of assaulting Mr Farrer to the danger of his life by stabbing him repeatedly and attempting to murder him. Mr Mitchell was also convicted of both charges but in his case the aggravations and the attempted murder were deleted.

It was not disputed that what had happened to Mr Farrer, who died in advance of the trial from unrelated causes, amounted to attempted murder. In a statement to the police the morning after the incident, he said that he had woken up to someone assaulting him whom he identified as Mr Mitchell. He blamed Mr Mitchell for the stabbing, although he had not seen him with a knife and did not know he had been stabbed until the assault had ended.

The two accused lodged special defences of incrimination blaming the other for the stabbing. During the trial diet the appellant sought to lead evidence from Mr Farrer’s sister, Danielle Farrer, who had not been on the defence list of witnesses but had been present in the courtroom for the first two days of trial. After indicating to the Crown that she had information about the case, the police took a statement from her in which she said that she had encountered Mr Mitchell shortly after her brother’s funeral and he had told her “I’m no gonnae get caught for it anyway as there’s no evidence”.

It was reported that, although no mention of it had been made in her police statements, Miss Farrer was also going to testify that her brother had repeatedly told her that it had been Mr Mitchell who had stabbed him. The trial judge refused to allow her to give evidence, reasoning that she was highly likely to be influenced by what had taken place in court. Counsel for the appellant submitted that, in refusing to allow her to testify, he had placed inappropriate weight on considerations that were of no relevance or significance.

Fundamental evidence

Delivering the opinion of the court, Lord Carloway began: “It is now competent to permit a witness who has, without permission, been present in the courtroom during proceedings, to give evidence if that presence was not due to culpable negligence or criminal intent and the witness has not been unduly instructed or influenced by what took place during her presence, or that injustice will not be done by his examination. It is for the person seeking to adduce the witness to satisfy the court that these pre-conditions (they are not tests) have been met.”

He continued: “The trial judge took the view that, having sat through the most fundamental and important passages of evidence, it was highly likely that the witness would have been influenced by what she had seen and heard during the trial. That was an entirely reasonable conclusion in the circumstances. In reaching it, the judge was entitled to take into account that, in relation to the references to what her brother had told her, Miss Farrer had made no previous mention of that, even when interviewed by the police during the currency of the trial.”

Lord Carloway concluded: “Having reached a view that Miss Farrer would have been influenced by what she had heard, the trial judge was bound, in terms of the section, to disallow this evidence as one of the conditions for its admissions had not been met.”

In a postscript on whether a miscarriage of justice could have arisen from disallowing Miss Farrer to testify, he added: “In relation to what Mr Mitchell had said to her in the supermarket, that did not amount to any form of admission by him. A statement from Mr Farrer, to the effect that it had been Mr Mitchell who had stabbed him, was already before the jury in the form of that given by Mr Farrer to the police on the morning after the incident. Any evidence of a later statement to the same effect would have been of little evidential value.”

The appeal against conviction was therefore refused.

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