Scottish High Court of Justiciary Decisons

Gardiner v. Her Majesty's Advocate [2002] ScotHC 24 (07 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lady Cosgrove Lord Kingarth	Appeal No: 707/00 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in NOTE OF APPEAL AGAINST CONVICTION by IAN GARDINER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Miss Scott, Q.C.; Anderson Strathern

Respondent: Macaulay, Q.C.; Crown Agent

7 March 2002

1. The appellant went to trial along with three co-accused at Lanark Sheriff Court between 22 and 25 August 2000. He together with his three co-accused were charged that at a miners' welfare club in Coalburn they had committed a breach of the peace and also had maliciously damaged property within the club. The jury convicted the appellant of both charges by a majority.
2. The appeal against conviction proceeds on the basis that there was a miscarriage of justice in that the sheriff had allowed evidence to be introduced in cross-examination of a witness, Marion Anderson, which was highly prejudicial to the appellant, and had thereafter failed at the time or thereafter in the course of his charge to the jury to give the jury any directions in relation to hearsay evidence.
3. The relevant circumstances are set out in the sheriff's report. On the night in question a serious disturbance had taken place within the club. Around 1 a.m. the club premises had been invaded by a group of young men who shouted and swore, threw bottles, glasses, snooker balls, a fire extinguisher, tables and chairs and brandished snooker cues. In addition to damage to these items, damage was also caused to an inside wall and to windows within the premises. The advocate depute informed us that so far as the appellant was concerned, three witnesses had spoken to identifying the appellant. The first was the witness Greenshields, the president of the club, who knew the appellant as a regular visitor to the club and knew him by name and who identified him as a ringleader. The second was the witness Marion Anderson, a bar stewardess in the club, who also knew the appellant as a regular visitor to the club but did not know him by name and who identified him as a ringleader. The third was a witness Baxter, who knew the appellant and identified him as involved in the breach of the peace. In the course of the trial the appellant gave evidence on his own account. He had accepted that he had been present in the club. However he denied taking any part in the fracas and had stated that he had been swept up in the disorder and had himself been assaulted.
4. The sheriff states on the second day of the trial the witness Marion Anderson was being cross-examined by the solicitor for the appellant. After some questions about the events and the witness' actings on the night, she had said that at the time she had not known the appellant by name. Apparently she had been able to name the appellant when she subsequently attended an identification parade. The sheriff in his report says this:

"My notes of her evidence at this point are that she said: "I didn't know him by name at that time. I knew he worked in the same factory as my daughter and had seen him before. He had spoken to her after it and asked her what she had seen".

It is abundantly plain that the reference to the appellant speaking to the daughter and what she had been asked was derived from hearsay evidence. The cross-examiner did not take the matter any further. However when the procurator fiscal came to re-examine the witness he returned to the matter. The sheriff tells us this:

"According to my notes, (the witness) said that the appellant had approached her daughter the morning after the incidents. The procurator fiscal asked her what the appellant had said . My note is that the question was "What did he say?". Objection was taken to the question on the basis that the answer would be hearsay. I allowed the question. The matter had arisen in cross-examination and it was permissible in my view for the procurator fiscal to pursue it to a limited extent as the answer to the question was in fact known. Accordingly, I was prepared to allow that question, anticipating that the answer would be the same as had previously been given. I was doubtful that procurator fiscal should or could pursue the matter much further, but was prepared to allow him to ask the question which he posed.

As it transpired the answer given by the witness was, according to my notes:- "He asked her if she had seen anything - he told her to keep quiet and keep her mouth shut - she was pretty upset and came home from work". The procurator fiscal very properly did not pursue the matter further with the witness."

It is to be noted that the daughter of Marion Anderson was not a witness in the case.

5. We are in no doubt, and indeed the advocate depute did not pretend otherwise, that the sheriff was wholly wrong to repel the objection. The question asked was on the face of it directed to eliciting hearsay evidence. It should not have been asked. It had nothing to do with the issue of how Marion Anderson came to know the name of the appellant, raised in cross-examination. One implication of the reply (although not the only one, given the presence of others whose involvement the appellant might wish to keep hidden) was that the appellant himself had been involved in the incident and wished to prevent the daughter giving any information about what she may have seen to anybody. Such an implication was plainly prejudicial, especially standing the fact that the daughter was not a witness in the case and this must have been known to the examiner.
6. On the third day of the trial, the appellant came to give evidence. In the course of cross-examination the procurator fiscal returned to the matter in an attack upon the credibility of the appellant. The sheriff puts the matter thus:-

"At the very end of his cross-examination having put to the appellant that his account of his actings on the night of the events was fraught with falsity and untruths and that he had been one of the ringleaders, the procurator fiscal asked a question about the appellant having spoken to Mrs. Anderson's daughter. I do not have a note of the question about the appellant having spoken to Mrs. Anderson's daughter but it was very clear that the procurator fiscal wished to raise with the appellant what Mrs Anderson had said about this matter in her evidence the previous day.....My note is to the effect that I did not allow (the procurator fiscal) to pursue the question of the appellant speaking to Mrs. Anderson's daughter. I recall using the words "I do not think you should pursuer that matter, Mr. Fiscal". If the appellant's solicitor had not actually voiced an objection by that time, he was certainly on his feet. My recollection is that the procurator fiscal paused and I said to him that if he wished to pursue the matter I would hear him outwith the presence of the jury. He then indicated that he would not insist in the question. Thereafter his cross-examination concluded.

The matter was dealt with quickly and without argument. In light of the gratuitous remark the witness had made the previous day I was anxious not only that the matter was not re-opened but also that as little attention be drawn to it as possible."

It only remains to say that the sheriff recognised that he was bound to consider the question of whether he should give a direction relating to the matter of hearsay evidence when he came to charge the jury on the fourth day of the trial. By that time evidence had been given by and for the appellant and by another co-accused. In addition the jury had heard speeches for the Crown and for each of the four accused, two of whom were also individually charged with assault. The sheriff explains that because he considered that as little attention as possible should be drawn to "this very short piece of Mrs. Anderson's evidence", he decided not to give a direction in relation to hearsay. As he states:-

"There was no other evidence in the case of a hearsay nature and therefore any direction on hearsay would have to relate to this particular piece of Mrs. Anderson's evidence. It seemed to me that to include such a direction would simply draw attention to, highlight and remind the jury of the gratuitous remark. No further reference had been made to the remark, in speeches or otherwise. I had not been asked by the appellant's solicitor, or any of the other solicitors appearing in the case to include a direction on the matter. On balance, I considered that in all the circumstances the best course was not to draw the jury's attention to this remark."

7. For the appellant Miss Scott submitted that having regard to the prejudicial nature of the passage of evidence, at the very least the sheriff should have given a general direction aimed to alert the jury to exclude from their consideration any evidence which was hearsay. She accepted that if he had done so, it would have been difficult to fault him. However, he had not dealt with the matter either by way of a general or indeed any specific direction to exclude the hearsay evidence from their consideration of the evidence given before them. The evidence given was prejudicial. It bore upon the credibility of the appellant which had to be a primary issue in the case so far as it related to him. Having failed to repel the objection to the evidence in the first place and thereafter having given no direction in relation to its hearsay nature, these failures together gave rise to a miscarriage of justice in that the jury were left uninstructed in a matter of their approach to evidence which was on its face prejudicial to the appellant's defence and, in particular, to his credibility. The present case fell to be distinguished from circumstances such as those in McArthur v. HMA 2000 SLT 694 where the absence of any direction in relation to hearsay evidence was held not to have led to a miscarriage of justice. She pointed out that in McArthur Lord Justice General Rodger had said that the mere fact that an issue was not raised by the defence did not in itself mean that a sheriff did not require to give directions on it. The sheriff would still require to give such directions if the matter was critical to a proper consideration of the evidence. The sheriff's decision not to refer to the evidence to avoid giving it any prominence, while open to him, was unreasonable in the circumstances.
8. The advocate depute, for his part, while accepting that the procurator fiscal should not have asked the question and that the sheriff erred in failing to sustain the objection to it, contended that the failure to give any direction did not constitute in itself a miscarriage of justice in the circumstances of the trial and the issues arising from it. He made reference to the terms of the charge and in particular to the comments of the sheriff about the nature of the evidence to which they would look as being that of eyewitnesses. It was a matter for the sheriff's discretion as to whether it would be preferable or not to give the direction suggested by Miss Scott, having regard to the manner in which the trial was conducted and the manner in which the critical issues were put before the jury.
9. While we have no reason to think that the procurator fiscal was deliberately intending to elicit the information which the witness gave in reply to his question in re-examination, it must be regarded as a grossly careless question which opened the way for the witness to give hearsay evidence. Moreover it was not withdrawn, as it should have been, when objection was taken to it. In that regard it was deliberately insisted in and this error was compounded by the failure of the sheriff to sustain the objection. However at the time when the evidence was given neither the procurator fiscal nor the appellant's solicitor invited the sheriff to give a direction on hearsay nor does the sheriff appear to have considered taking that course. The attempt by the procurator fiscal to re-open the matter in cross-examination of the appellant was reprehensible. Nevertheless we are prepared to accept that the sheriff, by intervening as he did, was able to control the proceedings in such a way as to keep the matter low key and not draw any undue attention to the issue.
10. The sting of the evidence in the present case can be likened to the emergence of evidence of a prior conviction in the course of the trial and the prejudicial effect that that disclosure may have upon the credibility of an accused. The problem of whether such a disclosure can be said to have resulted in a miscarriage of justice must be a matter of the particular circumstances in the particular case. Sometimes even a clear direction to the jury to disregard the objectionable evidence will be insufficient to prevent an appeal succeeding on the ground that there had been a miscarriage of justice - see, for instance, the opinion of Lord Hunter in Binks v. HMA 1984 SCCR 335. There the defence had moved for the diet of trial to be deserted immediately following the giving of the evidence. It was not suggested by Miss Scott that this was such a case. Rather, her submission was that the sheriff could not avoid giving a direction to the jury to disregard any hearsay evidence whether that be done by way of a general direction or one specific to the particular piece of evidence given by Mrs. Anderson. In McAvoy v. HMA 1991 SCCR 123 at 130, the court were satisfied that the terms of a question did not constitute making a reference to previous convictions of an accused but indicated that it was ambiguous and on one view might have suggested involvement on the part of an accused with the criminal authorities. In those circumstances, Lord Justice Clerk Ross said this at p.130:

"We are of opinion, however, that it was a matter for the trial judge to determine in his discretion whether he ought to say anything to the jury about it or not. In some cases he may feel that for him to say anything to the jury would remind the jury of something that they may have forgotten, or would merely emphasise the objectionable evidence. There may be other cases where the judge concludes that it is necessary and desirable that he should give the jury directions to disregard some piece of evidence which is prejudicial to the accused. What the judge should do in this sort of situation is very much a matter for his discretion (Fyfe v. H.M. Advocate). In the present case the trial judge took the view that any implication contained in the question was not clear to the jury, and that in these circumstances it was preferable not to refer to the matter again. It cannot be said that trial judge's decision not to refer to the matter was a matter of discretion which no reasonable judge could have taken."

11. In the present case we have come to the view that in considering the question of whether a direction should be given in his charge, the sheriff was not bound to conclude that one should be given. The answer to the question undoubtedly contained prejudicial material but at the end of the day the live issue to be addressed by the jury concerned the evidence given by those present in the club at the time of the fracas, including the appellant, as to the events then taking place and the nature of the appellant's actings at that time. The evidence had been given two days before and the issue of the credibility and reliability of witnesses' evidence which had been addressed in the speeches to the jury on behalf of the Crown and of the appellant two days later, had made no reference at all to the objectionable evidence. Having regard to these matters we have reached the view that the decision taken by the sheriff in the circumstances of the present case not to make any reference to the objectionable evidence by way of either a general or specific direction, cannot be said to have been one which no reasonable sheriff could have reached and that the failure to give the direction did not lead to a miscarriage of justice. The appeal against conviction is accordingly refused. The appeal against sentence remains to be determined.