David Ronald Shanks Hunter v HM Advocate

12th March 2014

Background

On 17th December 2012, David Ronald Shanks Hunter was convicted of a charge in the following terms:

“On 19 October 2011 at Ladbrokes, West Main Street, Whitburn, West Lothian you DAVID RONALD SHANKS HUNTER did with face masked assault Kimberley Beresford and Mary Timmins, both c/o Lothian and Borders Police, Livingston and both employees there and did push said Kimberley Beresford towards a wall and seize her by the body, repeatedly seize said Mary Timmins by the body, present a knife at her and hold said knife to her face, repeatedly demand money from them and did rob said Kimberley Beresford and Mary Timmins of a quantity of money and a cash box.

“You DAVID RONALD SHANKS HUNTER did commit this offence while on bail, having been granted bail on 29 August 2011 and 11 October 2011 at Livingston Sheriff Court.”

In a supplementary report, the sheriff explains that while there was no uncertainty as to the offence having been committed, there was an issue as to whether Mr Hunter had perpetrated it. The defence had originally made a submission of no case to answer due to insufficient evidence of identification, but this was rejected by the sheriff.

Repelling the defence’s submission, the Crown cited, inter alia, a number of items of circumstantial evidence and self-incriminatory comments made by the accused. These self-incriminatory statements were also used by the defence and are called mixed statements.

Appeal

The defence, acting on behalf of Mr Hunter submitted an appeal of his conviction. The appeal features two grounds of appeal, designated ground 2(a) and ground 2(b). Both focus on a misdirection by the sheriff in respect to the statements made by Mr Hunter as recorded above.

Ground 2(a) alleged a failure on the part of the judge to direct the jury that statements made by Mr Hunter, and used by the prosecution, were also available as exculpatory evidence for the appellant. Additionally, it alleged the a failure by the judge to direct the jury that if they believed the exculpatory parts of the statements, or even if they raised reasonable doubt, the jury ought to acquit.

Ground 2(b) alleges a misdirection in respect of what constitutes a completely exculpatory statement made by the appellant. Alongside the two utterances recorded above, Mr Hunter is also recorded as having said “I never done it.” During the trial, the sheriff instructed the jury that they should put this statement out of their minds. Later the sheriff admitted that he ought to have directed them to consider the statement as showing Mr Hunter’s reaction at the time.

Conclusion

The appeal concluded that the sheriff’s conduct during the trial could have left no doubt in the minds of jurors that they could consider the whole of a mixed statement and not merely the parts that give incriminatory or exculpatory evidence. Despite the defence’s critical comments regarding the sheriff’s treatment of mixed statements, the transcript shows the sheriff reminding the jury numerous times that they can consider the entirety of a statement.

Ground 2(a) was, therefore, summarily dismissed.

Regarding the latter of the defence’s two objections, ground 2(b), the advocate conceded that there had been misdirection over the wholly exculpatory statement: “I never done it.” During the trial the sheriff had claimed the statement was “not evidence of the truth of what he said, so you’ll put it out of your minds during your deliberations.”

While it was not correct for the sheriff to instruct the jury to put the statement out of there minds, it was agreed that the misdirection was only important if it was to any extent material. The advocate’s position was that it was not and the appeal agreed. While misdirection took place the appeal concluded that it did not give rise to a miscarriage of justice.

Thus ground2(b) was dismissed.

With both branches of the appeal addressed and dismissed the Mr Hunter’s appeal was rejected.

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