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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Stewart v. Her Majesty's Advocate [2003] ScotHC 39 (01 July 2003)
URL: http://www.bailii.org/scot/cases/ScotHC/2002/39.html
Cite as: [2003] ScotHC 39
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Stewart v. Her Majesty's Advocate [2003] ScotHC 39 (01 July 2003)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice Clerk Lord Osborne Lord McCluskey
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Appeal No: XC447/03 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL by MARTIN ANDREW STEWART Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jackson, QC, Miss Livingstone; McCusker McElroy & Co.
Respondent:
McConnachie, AD; Crown Agent1 July 2003
[1] On 13 July 1998 at Glasgow High Court the appellant, who was then aged 18, was convicted of murder along with two other youths. A fourth accused, a girl of 16, was acquitted. The appellant appeals against conviction on the ground that there was a miscarriage of justice caused by his inability to hear the evidence properly or to give evidence effectively on his own behalf.
[2] The appellant's original grounds of appeal included the contention that he had a hearing deficiency. That contention was not substantiated and was withdrawn. The substituted grounds on which the present appeal was conducted are to the effect that the appellant could not always hear what was being said and frequently failed to make himself heard, with the result that his evidence made an adverse impression on the jury. Senior counsel for the appellant submitted that the transcript of the appellant's evidence demonstrated that these problems occurred and that the cause of them was the failure of the sound amplification system. The appellant had constantly to repeat his answers. This interrupted the flow of the evidence. It put him under unnecessary pressure. It made him frustrated and irritable, and it prejudiced the presentation of his case. His own evidence was crucial on the murder charge since he was incriminating both of the male co-accused and since both of the male co-accused were incriminating him.
[3] The advocate depute submitted that the most reliable source of information on these questions was the trial judge. His reports showed that there had been no miscarriage of justice. There was no information to support the contention that the sound system was defective. Such problems as existed were caused by the appellant's own failure to give his evidence clearly.
[4] Four documents have been submitted on the appellant's behalf relating to events at the trial, namely (1) an affidavit by the appellant; (2) an affidavit by Mr. Philip Rooney, his former solicitor; (3) a hand-written letter from Mr. Gerald Carroll, advocate, his former junior counsel, and (4) a note by Mr. Edgar Prais, QC, his former senior counsel.
[5] Senior counsel asked us to decide this case on the basis that the grounds of appeal were adequately demonstrated by the transcript of the appellant's evidence. He referred us to 132 of the 320 pages of the transcript.
[6] At the outset of the appellant's evidence, his senior counsel referred to there being a problem with the microphone (Transcript, Wednesday 8 July 1998, pp. 4 and 27). After the lunch adjournment that day, senior counsel addressed the trial judge outwith the presence of the jury. He referred inter alia to there being a difficulty with the microphone that was prejudicial to the interests of the appellant and was causing frustration (ibid pp. 82-85). The matter was touched on later in evidence in chief (at p. 105) and in cross-examination (at pp. 220-221). The clerk of court improvised a solution to the difficulty by having the microphone put on top of a cardboard box placed on the witness stand. The transcript shows that no further complaint was made to the trial judge about the sound system after that was done.
[7] In his affidavit the appellant refers mainly to his inability to hear what was being said; but there is no support for that in the passages in the transcript to which we have been referred. We therefore deal with this appeal on the basis of the appellant's complaint that he could not make himself properly heard and understood.
[8] We have studied the passages in the transcript on which counsel for the appellant relies. Apart from those passages relating to the microphone, to which we have already referred, the other passages fall into three general categories: (1) those where words, phrases or sentences in the evidence are shown as "inaudible"; (2) those where counsel asks the appellant to repeat an answer, there being about 35 to 40 examples of this, in most cases by saying to the appellant at the end of an answer "Sorry?", or some similar expression; and (3) those where the appellant is asked to speak up, or not to let his voice drop, or not to answer questions with the word "uhuh," or to stand closer to the microphone, or even to shout.
[9] As to the first of these categories, we cannot conclude that the inaudibility of part of the tape demonstrates that the sound system was defective. The tape operates from a separate microphone. The "inaudibility" of any part of the tape may merely signify that it was inaudible to or not understood by the transcriber. There are occasions in the transcript where the context makes clear that whatever was inaudible to the transcriber was understood by counsel at the time.
[10] As to the second category, the numerous requests to the appellant to repeat his answers are consistent with his having failed to speak clearly and distinctly. They are certainly more consistent with that interpretation than with the interpretation that the sound system was defective.
[11] As to the third category, we have no reason to conclude that the requests made to the appellant to speak louder and so on were caused by any technical fault in the system rather than by the accused's own failure to speak up.
[12] Counsel for the appellant has pointed out that at times during his evidence the appellant gave a poor impression by being irritable. He suggested that this irritability was caused by his frustration at being unable to make himself heard. We accept that in certain parts of his evidence the appellant showed signs of irritation; but we cannot conclude that that was caused by a failure of the sound system. It could equally well have been caused by the stress of a trial for a particularly violent murder in which the three male accused were incriminating one another.
[13] If this appeal fell to be decided solely by reference to the transcript of the appellant's evidence, we would refuse it. But the matter goes further than that, because there are other significant considerations that point against the appellant's case.
[14] If there was substance in the appeal, we would have expected cogent information on the point from the appellant's former legal advisers. The information that they have submitted gives only feeble support to the appeal. Senior counsel who defended the appellant, and who would seem to be best placed to comment, says "Alas, I can do no more than acknowledge a dim recollection of problems claimed in hearing and being heard." Junior counsel refers to there having been difficulties with the sound system, but his comments are of a general nature and, in our view, lack specification on the material points. The appellant's former solicitor was not present for the last two days of the trial, during which the appellant gave evidence, and there is no affidavit from his assistant, Maureen Morrison, who took his place on those days.
[15] There is no evidence that any difficulty was experienced with the sound system in that court in other trials held at about that time, or at any other time; and there is no technical evidence to suggest that the sound system may have malfunctioned. There was no request by counsel for the appellant at any stage during the trial that the sound system should be checked and, if necessary, repaired.
[16] The record of the trial does not disclose that any juror complained, in open court or through the macer or clerk, that he could not properly hear the evidence or that the sound system was inadequate.
[17] Neither of the male co-accused who gave evidence experienced difficulties of the kind complained of by the appellant. The female co-accused had difficulty, caused by her lack of height, in speaking into the microphone; but the court seems to have resolved that problem satisfactorily by having the microphone placed closer to her.
[18] The judge, who has long experience in criminal trials, did not consider it necessary to ask the jurors if they were having difficulty in hearing the evidence; or to adjourn the trial to have the system checked. His reports to this court undermine the grounds of appeal. In his first report he says: "It is difficult to accept that the appellant could have failed to hear Mr Prais's questions. In any case, my notes indicate that he answered the questions put to him by all counsel. He was in the witness box for a full day, completing his evidence around 11.30 am on the last day of the trial. His defence was articulate and consistent ... There was no indication that he had any difficulty in managing the content of his evidence. He did have a difficulty in managing his temper. But that appeared to be an aspect of his personality." In his second report, he says: "Overall, it remains my view that the appellant was articulate and consistent, and that he had no difficulty in dealing with counsel's questions. I have no reason to believe that the jury would have been any less able than I to hear and note the appellant's evidence."