Scottish High Court of Justiciary Decisons

ROBERT JACKSON RODGER v. HER MAJESTY'S ADVOCATE [1999] ScotHC 244 (16th November, 1999)

The appellant appeared in the High Court sitting in Dunfermline in November 1998 to face an indictment containing six charges. On the same indictment and facing the same charges was his co-accused, Stanley James Thomson. The charges all related to criminal activities carried out on the same day, 13 July 1998, in Newport-on-Tay. Charge (1) was a charge that the two accused stole a handbag and its contents in 4 Tay Street. Charge (2) was a charge of breaking into the premises of the Newport Tennis Club and there stealing a hammer and other items. Charge (3) was a charge of forcing open a motor car with intent to steal. Charge (4) was of attempting to force open a different motor car with intent to steal therefrom. Charge (5) alleged that both accused:

Charge (6) was in the following terms:

After trial the appellant was convicted unanimously on all the charges, subject to minor and, for present purposes, immaterial deletions from charges (2) and (5). Stanley James Thomson, the co-accused, was also convicted on the first five charges, but the jury by a majority verdict found charge (6) against him not proven.

It is convenient to incorporate a passage from the report provided by the trial judge to this court in response to the lodging of the appeal. It is in the following terms:

The grounds of appeal, lodged on 28 January 1999, may be referred to for their full terms. The essence of the grounds, so far as still advanced, is to be found in the passages reading as follows:

The grounds of appeal, as lodged, contained a further criticism to the effect that the trial judge should have directed the jury that they could acquit the appellant of the murder but at the same time convict the co-accused of the murder. That assertion, which is plainly wrong, was abandoned by counsel, Miss Scott, at the start of the hearing of the appeal. The only question which arises in this appeal, therefore, is whether or not the trial judge fairly presented the case to the jury and, in particular, failed to do so by not adequately balancing his account of the evidence founded upon by the Crown with an account of the evidence adduced in support of the defence case, being principally the evidence given by the appellant himself, and certain other adminicles of real evidence.

In order to assess the judge's charge to the jury in the light of this we should begin by reiterating what has been said repeatedly in this court: that the charge must be considered as a whole. To assist the court in performing that task Miss Scott took the court through the whole charge and drew attention to what the judge said on each matter. It is unnecessary to rehearse here what the trial judge said in relation to the respective roles of judge and jury, the general approach to evidence, the burden and standard of proof, corroboration and other matters of a general character. There was no criticism of these general directions. Nor, it should be noted, was there any criticism made of the judge's directions to the jury in relation to their treatment of the contents of the alleged voluntary statement. No objection had been taken to the admissibility of the contents of that statement and the judge gave the jury appropriate warnings of their approach to treating that as evidence pointing to the appellant's guilt. However, dealing with the approach to the evidence, the trial judge said (page 6D):

He then referred to the accused's evidence in the context of corroboration and, having dealt with that, added:

He then referred in terms to the fact that the statement given by the accused might be used as evidence and said:

He elaborated upon the jury's approach to the voluntary statement allegedly made and in that context again referred to the first accused's own evidence as given in court. He described that evidence as clearly challenging the evidence of the police officers about the conduct of the interview when the voluntary statement was given. He then dealt with defence evidence by saying

The trial judge then turned to other matters, including the definition of the crime of murder. He drew attention to the fact that the Crown case was that the appellant had struck Mrs. Peter and that the co-accused was guilty only on an "art and part" basis, which he then explained, under reference to concert. The trial judge then dealt with certain matters which were not in dispute and turned to the important question as to who it was who committed the murder. He summarised briefly what the Crown were asserting, namely that the accused personally wielded the hammer. In that context he mentioned that the Advocate Depute had referred to the evidence of a witness, Kieran Clifford, who claimed to have heard the appellant acknowledge that he had possession of the hammer at an earlier stage. Reference was also made to the bloodstaining on the clothing of the appellant and on the clothing of the co-accused and to the fact that the blood on the appellant's jacket was substantially more than that on the jacket of the second accused. The alleged voluntary statement was again referred to briefly. The trial judge then stated that the evidence founded upon by the Crown was "sufficient (in law) evidence for the conviction of the first accused for murder." Next he turned to the case for the appellant in the light of the directions that he had given to the jury about onus and said:

The trial judge then turned to "the Crown case against the second accused in charge 6." In that context reference was made to the green bag, which was a Marks & Spencer green bag thrown out of the window of the cottage and having the co-accused's fingerprint on it. Reference was also made to the fingerprints on the whisky bottle, referred to earlier, which suggested that the second accused was, at some stage, in the bedroom where the murder was committed. The trial judge was very careful in dealing with the evidence to make it clear to the jury that the Crown were not founding upon evidence from the first accused to show that the second accused had wielded the hammer; and that the Crown's case was purely and simply that the second accused was guilty because he was acting in concert with the first accused as the person who wielded the hammer which struck Mrs. Peter the fatal blows. The trial judge explained to the jury that he had taken longer to consider the evidence and the rules relating to the case against the second accused because, having regard to the need to understand and apply the concept of concert, "that is simply because the Crown's case against the first accused is necessarily more straightforward than the art and part case against to the second accused."

Little more than an hour after they had retired to consider their verdicts the jury returned to court and the foreman stated, "We need further clarification on the law on the aspects of arts and parts in concert, from yourself." The trial judge then addressed the law of concert in more detail. His directions commence at page 37 and include the passage quoted in the grounds of appeal at page 40B-C. In that context he stated (starting at page 39F):

It is important to note that there was no evidence at all in the case that the hammer changed hands in the context of some concerted assault. The appellant, in particular, gave no evidence to that effect. It was plain that in dealing with the Crown case of concert, the evidence of the appellant to the effect that the co-accused had alone carried out a hammer attack while he, the appellant, was not present, was not evidence which the Crown relied upon or evidence which supported any case of concert.

We have quoted some of the main passages from the judge's charge to the jury. We consider that it is abundantly clear from these passages that the trial judge presented the matter fairly and fully to the jury. None of the evidence was referred to in great detail. The trial judge merely referred to the evidence in a summary form. He referred in particular to the evidence of the appellant by summarising the submission made by Mr. Prais, Q.C. on behalf of the appellant, in addressing the jury. It is important also to bear in mind that the appellant was the last witness to give evidence and that he gave evidence spread over a period of two days immediately before the Advocate Depute addressed the jury. In our view there is no justification for criticising the trial judge for not rehearsing the appellant's evidence in detail. That evidence must have been clearly and prominently in the forefront of the jury's mind. The jury must have had that important and most recent evidence very clearly in mind as they considered all the evidence; for it was the only evidence given in court by anyone claiming to have been at the scene when the fatal assault was committed. The fact that the appellant gave evidence and that that evidence pointed to his own innocence of the attack on Mrs. Peter and to the co-accused's sole guilt of that attack would certainly have been absolutely clear to the jury. It is not the task of the trial judge in a criminal jury trial in Scotland to patronise the jury by taking them through the evidence which they have just heard, line by line, detail by detail and point by point.

We are satisfied that the trial judge properly described the defence case in relation to the murder and properly referred, when the context required it, to the main thrust of that evidence. He had no duty, as counsel for the appellant has now acknowledged, to tell the jury that the co-accused might be convicted on the evidence of the appellant (this being the point in the original grounds of appeal that has now been withdrawn). We are satisfied that the sole ground of appeal now advanced is not sustainable. The appeal is, therefore, refused.