Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord Osborne Lord Weir	Appeal No: C289/01 OPINION OF THE COURT delivered by LORD COULSFIELD in NOTE OF APPEAL AGAINST CONVICTION by ARTHUR ROBERTSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: C. Shead, Barr; Balfour & Manson

Respondent: S. Di Rollo, Q.C., A.D.; Crown Agent

9 October 2002

1. The appellant was charged with the murder of Donald Charles Rocks on 6 September 1999. On 26 March 2001 he was convicted, after trial, and sentenced to life imprisonment, backdated to 24 November 2000.
2. The deceased was a drugs dealer and resided at a flat at 1 Taransay Street in Govan. He was last seen alive at about 10.30 p.m. on 5 September 1999. The police were called to his flat at about 00.54 a.m. on 6 September 2000 after some disturbance had been reported. The deceased was found to have sustained three stab wounds. He was still alive and was taken to the Southern General Hospital but died shortly after admission. The evidence showed that the appellant had been at a flat in the neighbourhood during the evening of 5 September, that there was some disturbance in the flat and that a telephone call was made to the deceased with a view to purchasing drugs from him. According to the witness who spoke to the telephone call, the appellant was present at the time and heard her conversation with the deceased. Another person present at this time was Frederick O'Hara, who was later incriminated by the appellant. O'Hara and another person left the flat and the appellant followed shortly after. There was then evidence that at about midnight there was a disturbance at the deceased's flat involving breaking glass. There was evidence from witnesses who saw a man outside the front window of the deceased's flat. This man climbed through that window and one of the witnesses picked out the appellant at an identification parade as resembling the man at the window. Another witness, who saw what he described as a man jumping backwards and forwards in front of the window of the deceased's flat, said that, shortly thereafter, a man emerged from the doorway at the close mouth, turned left and ran along the street towards the witness's flat. That witness picked out the appellant at an identification parade as the person who had emerged from the close with, he said, 80/85% certainty. Another witness, Anna Doran, who lived in a street parallel with Taransay Street was wakened by a noise and thought that there was someone at her door, but when she looked out saw no one. Later, police officers retrieved from a ledge above her front door a knife which could have caused the injuries to the deceased and which was contaminated with the deceased's blood. The appellant was a friend of the son of Mrs. Doran. In addition to the foregoing evidence there was forensic evidence. The fingerprints of the appellant were found on a window of the deceased's flat and blood, identified as that of the appellant, was found on the outside door of the deceased's flat and on the livingroom door within the flat.
3. After the deceased's death, the appellant disappeared from his family home for several months. He was finally arrested on 28 March 2000 and on that day impressions of his fingerprints were taken. Police officers searched the bedroom occupied by the appellant in the house where he had been hiding. In a pocket of a pair of trousers within that bedroom, they found a piece of paper which had, on one side, a number of telephone numbers of Social Work Department offices and police stations in the Paisley area. On the other side, the paper had some handwriting. It was headed "MISCARRIAGE OF THE LEGAL SYSTEM" and a number of words were written under that, including, "(1) WINDOW FINGERPRINTS, (2) footprints, (3) THE knife, (4) THE SHIRT, SHOVEL HAMMER". The paper also bore two drawings of a knife. The appellant gave evidence in which he incriminated O'Hara. O'Hara also gave evidence in which he claimed to have no clear recollection of what he did on the evening of 5 September but denied going to the deceased's flat that night.
4. The appeal arises from what took place during certain passages of the appellant's evidence. In the course of evidence in chief he was asked whether, during the period in which he had disappeared from the family home, he was getting any information from people about what was going on. That question was objected to by the advocate depute but allowed after the appellant's counsel explained that the evidence was directed to demonstrating the appellant's state of mind. The appellant's counsel then again asked him about information which he was receiving from a person called McMorrow and the appellant said:

"Well he was going down to Govan and he was finding out things. And he was told that my fingerprints had been found in 1 Taransay Street and he was told that there was a knife recovered. There was a hammer, there was a shovel".

5. Later in his evidence the appellant explained that what was written on the piece of paper, Crown Production 21, was information which he was gathering and setting down for the purposes of his own investigations. In cross-examination, he was asked again about that document and confirmed that the reference to fingerprints was made because someone had told him that the police had his fingerprints, and he said:

"Pat McMorrow told me, because he was going down to Govan and people were saying these things to him. This is what I was being told, that the window fingerprints and footprints. They also had the knife, the shirt, the shovel and the hammer."

6. He agreed, in answer to questions, that he must have written what he had written on Production 21 before 28 March 2000, the date on which he was arrested. So far, no objection had been taken to any of the questioning. The advocate depute then continued:

"Q. I want you to look at another document for me and that is Production 19. Do you have that?

A. Yes. This is when my fingerprints were taken, when I was arrested.

Q. And the ladies and gentlemen have heard from a fingerprint officer with the Fingerprint Bureau, and you will agree that that fingerprint form was created on 28 March 2000. Is that right?"

The judge then intervened because he was apprehensive that the questioning might, even inadvertently, elicit evidence of previous convictions of the appellant or some previous charge against him. He therefore asked the advocate depute to explain the purpose of his questions. Counsel for the appellant also intervened and referred to section 266(4) of the Criminal Procedure (Scotland) Act 1995 in regard to questions tending to show that the accused had committed or been convicted of or charged with an offence other than the one for which he was being tried. After a discussion, the advocate depute said that he would not explore the line further. However, when the jury was recalled the questioning continued as follows:

"Q. Can you please confirm Mr. Robertson that fingerprint form is dated 28 March for me?

A. If you say so sir.

Q. Well can you confirm that it is dated 28 March.

A. Yes. That is correct.

Q. And that was the day you were taken into police custody, wasn't it?

A. Yes.

Q. And you were, I think, arrested that day and certain procedures followed on that including the taking of blood samples and fingerprints. Is that right?

A. Yes.

Q. And that form relates to the giving of the fingerprints. Is that right?

A. Yes."

7. There was no further intervention by the judge, who explains that he was anxious not to alert the jury to the possibility of speculation about how the police had had the appellant's fingerprints prior to 28 March 2000 and counsel for the appellant did not make any further objection, possibly for similar reasons. However, once the appellant's evidence had been concluded, counsel for the appellant moved to desert the case either simpliciter or pro loco on the ground that there had been a breach of section 266(4). There was then a discussion, in the course of which the advocate depute accepted that he had been in breach of section 266(4). When the judge came to consider the submissions made to him, which involved a full reference to authority, he took the view, as he explains in his report, that it was by no means clear that the questions asked by the advocate depute actually revealed anything new to the members of the jury, in the sense of tending to suggest something that had not already been suggested to them by the evidence in chief. However, in the light of the concession made by the advocate depute, he proceeded on the basis that there had been a breach of section 266(4) and he therefore considered whether there had been material prejudice or a risk of such prejudice such as to warrant desertion of the diet. He took into account the evidence which had been heard and also took into account that, by that stage, the appellant had admitted that he had entered the deceased's flat during the night when the deceased was killed, so that the fingerprint evidence was unlikely to figure largely in the jury's deliberations. He considered the questions actually asked as compared with those which had been asked in evidence in chief and concluded that there had been no risk of material prejudice created. The judge also explains that he decided not to make any specific reference to these matters in his charge.
8. Section 266(4) provides:

"An accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any offence other than that with which he is then charged, or is of bad character, unless - ..."

9. There follow three exceptions, none of which could be relevant to the present proceedings. As was explained in Barnes v. H.M. Advocate 2000 S.C.C.R. 995, as well as in other cases, this provision derives from the Criminal Evidence Act 1898 which made provision for accused persons to give evidence in their own defence, both in England and in Scotland. As a result, English authority is relevant to the position in Scotland. The meaning of the section was considered by the House of Lords in Jones v. D.P.P. 1962 A.C. 635. The House of Lords held, by a majority, that on the true construction of the section, the words "tends to show" meant tend to suggest to the jury. That was the interpretation which was followed in Barnes supra and in Dodds v. H.M. Advocate 1987 S.C.C.R. 678. All these cases as well as other cases on the application of the section stress the extreme importance of the protection to the accused afforded by what is now section 266(4). The submission for the appellant was that the questions asked by the advocate depute did indeed tend to show that the appellant had previously been convicted or charged because they drew the jury's attention to the fact that his fingerprints must have been available to the police before the date on which he was arrested and fingerprinted in connection with this charge. While it was true that the information about fingerprints contained in Production 21 had been referred to in the course of the appellant's evidence in chief, the questioning of the advocate depute took the matter further and, in any event, reinforced for the jury the point about the availability of the fingerprints to the police. It followed that there had been a breach of section 266(4). It was true that in a similar case, Ross and Duff v. H.M. Advocate (unreported 2 February 1995) a similar reference to fingerprints had been held not to amount to the placing of a previous conviction before the jury on the ground that any inference of a previous conviction would be too remote and speculative. But that case had been concerned with the prohibition on reference to previous convictions, not with section 266(4) or its statutory predecessor. The likely effect of the questions asked was to convey to the jury that the appellant had been "in the hands of the police" and that such a vague reference would be even more prejudicial than, for example, the revelation of a minor previous conviction. Reference was also made to the case of Cordiner v. H.M. Advocate 1991 S.C.C.R. 652. Counsel accepted that in addition to showing that there had been a breach of the section, it was necessary to establish a miscarriage of justice if the appeal was to succeed. He pointed out that the credibility of the accused, who had given evidence denying his guilt and incriminating O'Hara, was vital. The sort of factors which were important in this context could be found in the decision in Binks v. H.M. Advocate 1984 S.C.C.R. 335. By reference to those factors it could be seen that the evidence in this case was elicited intentionally, that there was no overwhelming inference of guilt, even if the case could be regarded as strong, that the appellant's own evidence was not in itself blatantly incredible and the fact that the conviction in this case had been by a majority was also relevant.
10. The advocate depute submitted that there had been no breach of section 266(4), despite the concession made by the advocate depute at the trial. The mere fact that the police had a person's fingerprints did not tend to show anything relevant since there were a number of reasons why the police might have access to a person's fingerprints which did not involve any reference to a previous conviction or charge, or anything falling within section 266(4). Secondly, it was submitted that the defence had brought out all the information themselves and while it was difficult to explain precisely what the advocate depute at the trial had had in mind by repeating the reference to the date on which the appellant's fingerprints had been taken, that repetition was not in itself so serious as to give rise to a breach of the section. In any event, if there was a breach, it was one stage removed from the particular question of previous conviction or charge and whatever was added by the Crown as a result of the breach was slight, so that there was no risk of material prejudice and no miscarriage of justice.
11. In our view, it is clear that the questions and answers in evidence in chief were capable of conveying to the jury that the police had access to fingerprints of the appellant before his arrest. In one sense, therefore, it is true that the specific reference by the advocate depute to the fingerprint form taken on 28 March did not give rise to any suggestion or inference which was not already, in some form, before the jury. The questions did, however, make the matter more specific. The significance of the references in evidence in chief might very easily have passed the jury by and the specific reference to the fingerprint form and its date in cross-examination must have reduced the possibility that the matter would be overlooked. For that reason it is, in our view, clear that it was inadvisable for the advocate depute to ask these questions, especially as it is not possible to discern any proper purpose in asking them. Nevertheless, the question remains whether the references to the availability of the appellant's prints to the police before the date of his arrest did tend to show, in the sense of the statute, that he had committed, been convicted of or been charged with some offence other than the charge before the jury. This is a narrow question but we have come to the conclusion that, while the members of the jury might have asked themselves how it was that the police were able to check the accused's fingerprints, it could not reasonably be anticipated that they would go from that question to the answer that he must have been convicted of or charged with an offence. They had, of course, been warned not to speculate about matters not explored in evidence.
12. In any event, in the circumstances of this case, we are satisfied that there was no miscarriage of justice. The whole of the questions and answers founded on in the argument for the appellant occupied a very short space in a substantial amount of evidence. There was, in our view, a very substantial amount of other evidence against the appellant. As the judge pointed out in his report, the appellant had admitted that he had been in the deceased's flat so that the actual role of the fingerprints in the proof was diminished and would not engage particular attention on the part of the jury. We accept, of course, that section 266(4) is a crucial protection for an accused person who gives evidence and that the question of the appellant's credibility was critical. Nevertheless, having regard to the whole circumstances, we do not consider that there was any risk of a miscarriage of justice and this appeal, therefore, fails.