APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C826/97
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST CONVICTION AND SENTENCE
JOHN McFARLANE CARROLL and DAVID SAMUEL SANTINI
HER MAJESTY'S ADVOCATE
Appellants: Hamilton, Q.C., Hughes; Allan McDougall & Co.; Henderson, Q.C., Thom; Brodies
Respondent: Mulholland, A.D.; Crown Agent
16 June 1999
The appellants are John McFarlane Carroll and David Samuel Santini who were co-accused on an indictment charging them with being concerned in the supplying of Diamorphine at various addresses, including a flat at 1393 Dumbarton Road, Glasgow, between 1 December 1996 and 26 June 1997. Carroll was convicted of the charge, but the jury restricted the libel to a period of four days from 23 to 26 June 1997 inclusive. Santini, on the other hand, was convicted of the charge covering the period from 20 December 1996 to 26 June 1997 inclusive. Carroll was sentenced to seven years imprisonment from 26 June 1997, while Santini was sentenced to thirteen years imprisonment from the same date. Although both have appealed against sentence as well as against conviction, we are concerned in this opinion with their appeals against conviction only.
The trial ended on 23 September 1997. It appears that a month later, on 23 October, the agents for Carroll were told that difficulties were being encountered in transcribing the Trial Judge's charge to the jury. The agents for Santini were also in contact with Justiciary Office and over the following months they were aware that attempts were being made to see whether the charge could be transcribed. In the end, to make a long story short, all attempts to transcribe any material portions of the charge proved futile, since the equipment in the court had not worked properly and had failed to record the Judge's words. The position was explained to the agents for both appellants in a letter from Justiciary Office dated 14 April 1999. In the meantime on 24 September 1998 the agents for Carroll lodged a note of appeal setting out various grounds of appeal, while those acting for Santini lodged a note of appeal on 30 September 1998, followed by a "First Supplementary Note of Appeal" dated 28 October. All of these documents stimulated responses by way of reports from the Trial Judge.
At the hearing before us Mr. Hamilton, Q.C., advanced two arguments in support of the appeal by Carroll. The first was based fair and square on the fact that, because of the failure of the equipment, the Judge's charge had not been recorded and no transcript was available. This constituted a breach of Section 93 of the Criminal Procedure (Scotland) Act 1995 which in itself constituted a miscarriage of justice.
Section 93(1) provides
"The proceedings at the trial of any person who, if convicted, is entitled to appeal under Part VIII of this Act, shall be recorded by means of shorthand notes or by mechanical means."
Subsection (5) defines "proceedings at the trial" for these purposes as meaning
"the whole proceedings including, without prejudice to that generality -
(a) discussions -
(i) on any objection to the relevancy of the indictment;
(ii) with respect to any challenge of jurors; and
(iii) on all questions arising in the course of the trial;
(b) the decision of the court on any matter referred to in paragraph (a)
(c) the evidence led at the trial;
(d) any statement made by or on behalf of the accused whether before
or after the verdict;
(e) the judge's charge to the jury;
(f) the speeches of counsel or agent;
(g) the verdict of the jury;
(h) the sentence by the judge."
A cursory examination of the terms of the Section shows that the failure to record the Trial Judge's charge to the jury constituted a manifest breach of Section 93(1). Mr. Hamilton in effect argued that the requirement imposed by the Section was mandatory, so that any appellant was entitled to succeed simply by showing that a breach had occurred. The intention of Parliament had been that the whole proceedings should be recorded and so made available for the consideration of the appeal court which could not deal adequately with any appeal without the transcript, in particular without the transcript of "the most important part of the proceedings", the charge to the jury.
We reject this extreme argument. As the Advocate Depute pointed out, it could never have been the intention of Parliament that the failure to record some part of the proceedings which was irrelevant to the appeal should automatically result in an accused's appeal being allowed. That was, however, the consequence of the argument advanced by Mr. Hamilton. Suppose, for example, that there had been a failure to record a defence objection to a juror, which had succeeded and resulted in the juror being replaced, that would constitute a breach of Section 93(1) and, on his argument, it would require this court to allow the accused's appeal even if the only ground of appeal relating to the merits were, say, insufficiency of evidence. Such a result would be completely at odds with the interests of justice.
We regard that argument of the Advocate Depute as being in itself compelling and do not therefore require to examine the other arguments which he advanced to bolster it. We note that it finds support in the passage from the judgment of Channell J. which we refer to later in this opinion. We therefore reject Mr. Hamilton's argument that the breach of Section 93 alone should lead to his client's conviction being quashed.
Mr. Hamilton submitted that, even if that argument failed, the appeal should still be allowed. Whatever might have been the reason for the Judge's charge not being recorded, the fact remained that something fundamentally wrong had occurred in breach of a straightforward requirement laid down by Parliament. In that situation the appellant should be entitled to succeed, if he could show that the blunder might have led to a miscarriage of justice.
Drawing upon his considerable experience, Mr. Hamilton explained the habits of counsel listening to and pondering a trial judge's charge to the jury. They would listen attentively, but not take notes. Having heard the charge, if counsel had a shadow of doubt about any element in it, counsel would instruct an appeal on the ground of misdirection and then, when the transcript of the charge was available, they would scrutinise it. On this basis, they might then decide to advise that the appeal should be abandoned or that it should proceed, with the grounds of appeal being finalised on the basis of the transcript. Counsel would be failing in their duty to their clients if they did not scrutinise the charge in this way. Here, however, there was no transcript available for scrutiny and, by the time when Mr. Hamilton had been asked to draw the grounds of appeal, about a year after the end of the trial, he could no longer remember the charge; the few notes which he might have taken during the charge would have long since been destroyed. For these reasons he had been irremediably handicapped in drafting proper grounds of appeal. In that situation it was indeed possible to say that there might have been a miscarriage of justice which could not be detected due to the absence of any recording of the charge to the jury. To put the matter at its lowest, the lack of a transcript meant that Mr. Hamilton could not advise Carroll that the Trial Judge had given the jury proper directions on all the points which were material for their consideration of his case.
Mr. Hamilton informed the court that, despite spending a day and a half in the Advocates Library, he had been unable to find any case which was exactly in point - that was an indication of just how rare such a breach was. The nearest case he had found was McLaughlan v. H. M. Advocate 1996 S.L.T. 304 to which we shall refer in a moment. The court pointed out that a search beyond the borders of Scotland might have produced some cases on the point, in particular the observations in R v. Elliott (1909) 2 Cr. App. R. 171 at p. 172. Referring to some earlier decisions, Channell J. said:
"They amount to this, that the provision of the statute with regard to there being a shorthand note taken of the proceedings at the trial, is directory only. The absence or insufficiency of a shorthand note is not of itself a ground upon which a prisoner can succeed upon appeal, nor the existence of a proper note a condition precedent to a good trial. Where, however, there is reason to suspect that there is something wrong in connection with the hearing of a case, the absence or insufficiency of a proper shorthand note may be material."
The courts in England have consistently applied that approach, as is shown, for instance by R. v. Le Caer (1972) 56 Cr. App. R. 727 at pp. 730 - 731 where Lord Widgery C.J. referred to Channell J.'s comments and added:
"The Court would adopt those words as being entirely appropriate to the present facts and to the present case; in other words, the simple fact that there is no shorthand note is not of itself a ground for saying that the conviction is unsafe or unsatisfactory. In order that the appellant may claim that conclusion, he must be able to show something to suggest that there was an irregularity at the trial or a misdirection in the summing-up. Unless there is something to suggest that an error of that kind took place, the absence of a shorthand note simpliciter cannot cause the Court to say that the verdict of the jury was unsafe or unsatisfactory."
The same view was taken by the Court of Appeal (Criminal Division) in R. v. Richards  Crim. L. R. 48. We note in passing that the courts in New Zealand have proceeded on the same basis: R. v. Hooker  3 N.Z.L.R. 562 at p. 565 per Blanchard J. giving the opinion of the Court of Appeal.
Although Mr. Hamilton counselled us against too readily accepting the guidance afforded by decisions from other systems, we can detect no reason why in these particular circumstances they would be likely to lead us into error. If we followed them, we would have first to consider whether the appellant had pointed to any misdirection which he thought had occurred in the Judge's charge; if he had done so, then the absence of the transcript might be material to a consideration of the appeal in so far as based on that misdirection.
Mr. Hamilton argued, however, that the surest guidance for this court was to be found in the decision in McLaughlan. In that case the appellant had been convicted of assault to severe injury and appealed to this court, in effect contending that there was no sufficient basis for the finding that the assault had been to severe injury. Counsel for the appellant moved the court to allow the appeal to the extent of substituting a verdict of assault to injury. It appears that the Lord Advocate, who appeared in the appeal, indicated that he would not oppose that motion, because he was aware that the procedure at the trial had gone wrong. In his charge to the jury the sheriff had said nothing about the aggravation of the assault and had given the jury no guidance on how to approach that matter. The sheriff's report recorded that, shortly after the jury retired to consider their verdict, the sheriff reconvened the court and "in the absence of the shorthand writer" gave further directions to the jury on the question of severe injury. He said that he had made it clear that if the jury were not satisfied that severe injury had been established it was open to them to delete the word "severe" from the charge.
Giving the opinion of this court, the Lord Justice Clerk said that it had been quite wrong for the sheriff to give directions to the jury in the absence of the shorthand writer and added that the court were very surprised that the experienced sheriff had done so. It therefore appears that the court were proceeding on the basis that the sheriff must have been conscious that he was giving the supplementary directions without the shorthand writer being present. The court concluded that there had been a clear breach of the provisions of Section 274(5) of the Criminal Procedure (Scotland) Act 1975 (equivalent to Section 93 of the 1995 Act). Having referred to two earlier decisions, the Lord Justice Clerk summarised the position in this way:
"In the present case although the sheriff has described to us what he made clear to the jury when he reconvened his court, there is no record of that and there can be no certainty as to what he said. That being so, we can well understand why the Lord Advocate in this case did not resist counsel's motion. We shall accordingly set aside the verdict of the jury in relation to charge 2 and we shall substitute therefor a verdict of guilty of assault to injury, that is a verdict of guilty under deletion of the word 'severe'."
Mr. Hamilton argued that, even though the court in McLaughlan had been given an account of what the sheriff had said to the jury in his supplementary direction, the court had still considered that the appeal should be allowed because there could be no certainty as to what he had said. This indicated that a doubt or uncertainty as to whether the jury had been properly directed was in itself a sufficient basis for holding that there had been a miscarriage of justice. We should apply that approach in the present case in preference to the one to be found in the English authorities.
Even were we satisfied that McLaughlan was inconsistent with the other authorities, we should hesitate before treating it as definitive of the approach which we should adopt. The outstanding feature of the case is perhaps that the court proceeded on a concession which had been made by the Lord Advocate on an issue which had not, apparently, been tackled in that way by counsel for the appellant. We have already pointed out that, on one interpretation at least, the court took the view that the sheriff had knowingly given the directions in the absence of the shorthand writer and had thereby consciously breached the requirement of the statute, thus creating the uncertainty about what he had said. Further, neither in McLaughlan nor in the earlier cases referred to in it was there any attempt to analyse the effect of the statutory provision in the way that the Advocate Depute analysed Section 93 in this case.
In fact, however, we see no necessary inconsistency between the approach in McLaughlan and the line of cases beginning with Elliott. In the Elliott line the starting point is that counsel can point to an irregularity or misdirection; the absence of a transcript may then be material to the court's consideration of that issue. In McLaughlan also the starting point was that the sheriff had failed to give the jury any direction on "severe" injury. Having realised his error, he recalled the jury and gave a direction which was intended to correct the misdirection. The issue would therefore have been whether the supplementary direction had redressed the error. In the absence of any transcript there could be no certainty as to what had been said and as to whether it had truly corrected the error. In that situation the absence of the transcript was truly material to the issue of whether the initial misdirection had been corrected.
For these reasons we are satisfied that there is nothing in McLaughlan which demonstrates that the guidance in the Elliott line of authorities should not be followed. Having examined those authorities, we consider that they do indeed indicate how we should proceed. The first requirement is that counsel should identify an issue on which it is said that the Judge misdirected the jury in his charge. Mr. Hamilton frankly admitted that, when the trial was over, there was only one point upon which he considered that he might found an appeal: that issue forms the subject-matter of a different ground of appeal to which we must turn shortly, but it has nothing to do with the directions given to the jury during the Judge's charge. Counsel was therefore unable to point to any alleged misdirection in the Judge's charge even though, as he explained to us, he would have listened to the charge with great care. The first element in the Elliott test is therefore not established and the appeal by Carroll, so far as based on the lack of a transcript of the Judge's charge, must accordingly be refused.
In the case of Santini Mr. Henderson in effect accepted that the absence of the transcript of the Judge's charge would be material only if he could point to some aspect of the charge which might have been defective. He indicated that, having studied such notes of the charge as were available to him, he considered that the Judge might not have given an adequate account of the defence case, in particular, the appellant's contention in evidence that he had a number of legitimate businesses, involving imports, which could account not only for the sums of money found in his home but also for the trip to the Netherlands and to Antwerp in the middle of June 1997. All that the Judge appeared to have done was to refer to Mr. Henderson's speech to the jury - which might not have been sufficient, given the importance of this issue. The issue was relevant to the point made on behalf of Santini that he should at most have been convicted of being concerned in supplying over the period from 23 to 26 June 1997 when he was observed by the police entering the flat in Dumbarton Road in Glasgow. Mr. Henderson indicated that on this basis he could not indeed seek anything more than that the court should substitute a conviction over that more limited period - which might, however, he said, have implications for sentence.
It appears to us that this particular potential criticism of the Judge's charge is not actually focused in the grounds of appeal stated on behalf of Santini. Since, however, it was adequately brought out in the submission to us and is recorded in this section of our opinion, we shall - since the Crown maintain that the conviction should stand in its unamended form - ask the Trial Judge to provide a supplementary report explaining, as best he can after all this time, why he dealt with the defence case in this way.
On behalf of Carroll Mr. Hamilton advanced a further argument which concerned a video recording. During the trial certain evidence had been put before the jury in the form of a video recording. The recollection of the Trial Judge was that the whole of the recording had been played to the jury, but there appeared to be doubt about that and we proceed on the basis, for which Mr. Hamilton contended, that only parts of the video tape had been played during the leading of evidence. When they had retired to consider their verdict, the jury returned to court and asked to be allowed to see certain parts of the video recording. What happened is set out in the minute of the Clerk, Mr. Higgins:
"The jury returned into Court and through their spokesperson asked the following questions, viz:-
1. Can we see the opening shots on the video including the questioning of George Faulkner, Christopher McCall and David Samuel Santini?
2. Can we see the shot of the kitchen showing the top of the fridge and the panning round by the video operator of the kitchen?
3. Can we see the entry of John Carroll into the house and his questioning?
The Court, after consultation with the Advocate Depute and counsel for each of the accused John McFarlane Carroll and David Samuel Santini, each of them consenting, allowed the jury to again see the excerpts of the video recording requested by them at heads 1, 2 and 3....
The court, of consent of all parties, directed that the jury together with both the video operator and the Clerk of Court remain in Court whilst everyone else be excluded to allow the jury to view the above mentioned excerpts of the video tape.
The jury again retired to consider their verdict at 3.38 pm."
Mr. Hamilton's recollection was that the jury had returned with their request before the lunch adjournment, though it appeared that Mr. Henderson thought that they had come into court after lunch. The significance of the point appeared to be that, according to Mr. Hamilton, the jury had spent the time from, say, two o'clock until about half-past three in the jury room watching the video. What, he asked, had they been watching for all that time? It could not simply be the three excerpts: it must therefore be supposed that they had watched some other portion of the video recording and, since not all of the recording had been played in evidence, the inference must be that they might well have watched portions which formed no part of the evidence. The problem was that the procedure adopted did not allow any check on what had happened while only the jury, the Clerk and the video operator were present. The Trial Judge had been at fault in permitting the jury to view the tape recording under those circumstances.
We regard this criticism as wholly unwarranted. As the minute shows, the procedure was adopted with the express consent of all the counsel present, including, of course, Mr. Hamilton himself. That goes a very long way indeed towards drawing the sting of any conceivable criticism of the procedure. In any event Mr. Hamilton's argument is based not merely on his personal recollection of the timing of events, which may well be faulty, but also on the sheerest speculation as to supposed events in the jury room. The argument does not begin to get off the ground unless the court assumes that not only the jury, but the operator of the video recorder and the Clerk of Court himself all flouted the directions of the Judge. This is a most serious allegation and there is not a shred of evidence to support it. We have no hesitation in rejecting this ground of appeal also.
In the result the appeal against conviction by Carroll is refused and the appeal against conviction by Santini is continued to a date to be afterwards fixed pending the report from the Trial Judge on the point which we have identified earlier in this opinion. The appeals against sentence of both Carroll and Santini are likewise continued to a date to be afterwards fixed.