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Cite as: [2005] HCJAC 132, [2005] ScotHC HCJAC_132, 2006 SCCR 40

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Sneddon v. Her Majesty's Advocate [2005] ScotHC HCJAC_132 (12 October 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lord Kingarth

Lord Reed

[2005HCJAC132]

Appeal No XC494/04

OPINION OF THE COURT

delivered by LORD MACFADYEN

APPEAL AGAINST CONVICTION and SENTENCE

STEVEN WILLIAM SNEDDON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Central Criminal Lawyers, Livingston

Respondent: Stewart, Q.C., A.D.; Crown Agent

29 November 2005

Introduction
[1] On 27 May 2004 at Ayr Sheriff Court the appellant was found guilty of six charges of assault, all committed on the same date, namely 27 May 2002, and at the same place, namely Highfield Farm, St Quivox, Ayr. On 17 June 2004 the sheriff imposed a cumulo sentence of three years imprisonment. The appellant lodged a note of appeal against conviction and sentence. On 24 April 2005 the court noted that the original ground of appeal against conviction was not being insisted upon, and allowed the appellant to lodge substitute grounds of appeal.

The ground of appeal
[2] The sole substitute ground of appeal against conviction is in the following terms:

"The Sheriff failed to direct the jury on the status and effect of the appellant's statement to the police. It was a mixed statement and formed the basis of the appellant's position at trial. The failure to give such a direction was apt to impair the right of the appellant to found on the parts of the statement which were exculpatory.

In any event, the context of the statement was such that it required the Sheriff, in the context of the Crown case, to explain its significance to the jury."

The evidence
[3] In the course of the trial, evidence was led by the Crown of the terms of a statement made by the appellant to police officers on 26 July 2003 (Crown production No. 26). In the course of the statement, the appellant admitted that he was present when the assaults libelled took place. He denied having any of the weapons mentioned in the libel, namely a hammer, a baseball bat and a knife. In answer to the question, "Did you assault anybody?" he made a reply which was accepted on his behalf as implicating him, as actor, in the assault on Andrew Richardson libelled in Charge (6), but not otherwise tending to inculpate him in the charges in the indictment. He admitted that one of the men involved in the assaults had a baseball bat, but said that he had not agreed to that. He denied knowing about, or seeing, a hammer or a knife.

[4] The appellant did not give evidence. Nor was any evidence led on his behalf.

The judge's charge
[5] The sheriff's Charge contained the following passages in juxtaposition. At page 9, line 11, to page 10 line 14, the sheriff said:

"Now in relation to Mr McEwan [the appellant's co-accused] I stress that in general terms there is no burden of proof on him, he does not need to prove his innocence. If he tries to establish something either by giving evidence on his own behalf or by calling Defence witnesses he does not have to prove anything to any particular standard nor does he have to corroborate anything. If he gives evidence as he has done and gives an account of what happened which is consistent with his innocence and you believe him then you must acquit him. If you don't believe him but you believe there is a doubt about his guilt you must acquit him and if anything said by a Defence witness gives you a reasonable doubt about the guilt of the accused you likewise must acquit. In all cases the real question is whether the Crown has proved its case. If you have a reasonable doubt about that, whatever causes you to have that doubt, then the accused is entitled to the benefit of the doubt and he must be acquitted."

At page 10, line 15, to page 11, line 7, the sheriff said:

"Now, in relation to Mr Sneddon [the appellant] you will have observed, ladies and gentlemen, that he has not given evidence on his own behalf nor has he called any Defence witnesses. He is perfectly entitled in law to adopt this position because as I have said earlier he is presumed to be innocent. He may elect to put the Crown to the proof of his guilt. You must not assume that just because you have not heard from the accused or any Defence witnesses that the Crown case has been proved. The Crown itself must prove its case beyond reasonable doubt. If you have a reasonable doubt about that, whatever causes you to have that doubt, then the accused is entitled to the benefit of the doubt and must be acquitted."

Misdirection
[6] It was not suggested that those directions were in any way incorrect. It was, however, submitted that they provided the context in which the sheriff's failure to give certain other directions should be assessed. In particular, the sheriff failed to give any directions at all as to how the evidence of the police officers about the statement given by the appellant to them should be approached. The sheriff's charge was entirely silent on that point.

[7] For the appellant Mr Shead submitted that the sheriff ought to have given the jury an explicit direction as to how they should treat the evidence of the statement given by the appellant to the police. He submitted that the statement was plainly a mixed statement, that is one capable of being both incriminatory and exculpatory. It was potentially incriminatory in that it placed the appellant at the locus of the assaults at the time when they were committed and implicated him in the assault on Richardson. It was potentially exculpatory in so far as it involved denial of use of, or acquiescence in the use of, a baseball bat, and denial of use of, or knowledge of the use of, a hammer and a knife. In such circumstances, it was submitted, the jury should have been directed that they should consider the whole statement, both the potentially incriminatory and the potentially exculpatory parts, and determine whether the whole or any part of it was accepted by them as the truth. Such a direction was particularly necessary in the context of the passages in the Charge quoted in paragraph [5] above. There was a real danger that, in the absence of such a direction, the jury would not know how properly to approach the evidence of the statement. They might, in particular, draw the inference from the passage at pages 10 - 11 of the Charge that the statement was not evidence on which the appellant was entitled to rely. That danger was enhanced by the passage at page 4 of the judge's Charge to the effect that the evidence the jury had to assess was to be found in the answers of witnesses to questions put to them.

[8] The Advocate depute accepted that the sheriff had not followed the guidance given in Morrison v H. M. Advocate 1990 SCCR 235 at 248C. He concentrated his submissions on the contention that there had, in the circumstances, been no miscarriage of justice. We shall return to that issue in due course. It is, however, appropriate that we should first consider whether the sheriff misdirected the jury by failing to instruct them as to the use that could properly be made by them of the evidence of the statement made by the appellant to the police.

[9] We are satisfied that it was incumbent on the sheriff to direct the jury that they should consider the whole statement, both the potentially incriminatory parts and the potentially exculpatory parts, and come to their own conclusion as to whether the statement or any part of it was the truth (Morrison at 248C). Such a direction is normally required in a case where evidence has been led by the Crown of a mixed statement made by an accused person. We agree with Mr Shead that in the circumstances of the present case the directions given by the sheriff at pages 9 to 11 of the Charge, which we have quoted in paragraph [5] above, while sound so far as they went, increased the risk that the jury, if uninstructed as to the proper approach to a mixed statement, would fail to understand that the exculpatory parts could properly be regarded as evidence supporting the position adopted by the appellant. We are therefore satisfied that the sheriff failed in a material respect to give the jury the guidance which they required.

Miscarriage of justice
[10] In terms of section 106(3) if the Criminal Procedure (Scotland) Act 1995 the question for determination in any appeal is whether there has been a miscarriage of justice. Mr Shead referred to two cases in which the question of whether a failure to give an appropriate direction about a mixed statement resulted in a miscarriage of justice had been considered. The first of these was Lennox v H. M. Advocate 2002 SCCR 954, in which the sheriff, at one part of his charge, directed the jury that the statement in question was wholly exculpatory and, at another, directed the jury that it was a mixed statement and should be treated accordingly. It was held that the effect of the charge was at least to impair the appellant's right to found on the exculpatory part of the statement, and that there was accordingly a miscarriage of justice. The second case was Jones v H. M. Advocate 2003 SCCR 94. In it the sheriff left it to the jury to decide whether a statement was a mixed one or was wholly exculpatory. That was held to be a misdirection, but it was held that it was clear that the jury would correctly have held that the statement was a mixed one and would have applied the sheriff's directions as to how to approach a mixed statement, and there was therefore no miscarriage of justice. Mr Shead submitted that in the present case it was impossible to say how the jury would have regarded the appellant's statement, if a proper direction had been given. Moreover, there was, in contrast to the situation in Jones, no direction here as to how a mixed statement should be treated. It therefore could not be said that notwithstanding the misdirection there was no miscarriage of justice.

[11] The Advocate depute, in submitting that there was in the present case no miscarriage of justice, began by pointing out that it was to be assumed that the jury would take account of all the evidence placed before them, unless they were directed to the contrary. The way in which the statement was placed before the jury was in fact favourable to the appellant. The statement was on balance more incriminating than exculpatory, but in so far as it was exculpatory, it was before the jury without the sort of "health warning" mentioned in Morrison at 248E, namely a reminder that it was not made on oath and not subject to cross-examination.

[12] The Advocate depute's submissions on this issue depended largely on the way in which the jury had been asked to approach the statement in the speech of counsel for the appellant, and on the fact that the sheriff permitted the jury to take the statement with them when they retired to deliberate upon their verdict. At page 78 of the transcript of closing submissions, counsel for the appellant invited the jury to look at the transcript, and (subject to the sheriff's permission):

"to take [it] into your jury room with you in consideration of Mr Sneddon's position".

At page 79, counsel continued:

"Now, so far as this transcript is concerned I think I can put it this way. Mr Sneddon accepts his position. Firstly he accepts responsibility for his own actions. He indicates quite clearly to the officers in the course of his interview with one exception, that he said he saw no weapons, a hammer or knife at any stage. So, that is clearly what he is saying to the officers in the interview - at no stage did he see a hammer or a knife.

He also indicates quite clearly that he was unaware of anybody using a hammer or a knife. He does indicate however - and it is on page 4 of the transcript, and you might just like to note page 4. I do not intend to refer you to it in detail but you might like to consider it in the jury room - he does indicate that somebody did have a baseball bat which he said he hadn't agreed to."

At page 81 counsel reiterated:

"So, you have the transcript and I am suggesting that in the context of making your deliberations it might well be useful for you to have that in your jury room to consider it".

At page 91 counsel concluded:

"I would ask you to acquit [the appellant] of the hammer and knife assaults with perhaps a question mark in the shape of a not proven verdict on the charges involving the baseball bat which he says he was aware of, did not approve of and did not see being used".

[13] In the event, at the request of defence counsel, the sheriff permitted the jury to take the transcript of the appellant's interview with them into the jury room when they retired to consider their verdict. Seen against the background of the way in which the jury had been addressed by defence counsel, and in light also of the fact that the sheriff, at page 5 of his charge, commended the speeches of counsel to the jury, the Advocate depute submitted, it was clear that the sheriff had indicated his approval of the proposition that the jury should have regard to the support which the transcript of the interview provided for the position adopted by the appellant before the jury. It was therefore unrealistic to suppose that the jury might have failed to realise that they could take into account in the appellant's favour the exculpatory parts of his statement. There was therefore no miscarriage of justice.

[14] In our opinion the Advocate depute's submissions are to be preferred. The cases cited by Mr Shead are both readily distinguishable. The question is whether, when regard is had to the way in which the trial actually proceeded, it can be affirmed that the misdirection which we have identified resulted in a miscarriage of justice. We answer that question in the negative. It is clear from the terms of the transcript of defence counsel's speech that the appellant's position as put to the jury was founded wholly on the exculpatory parts of the mixed statement. The jury were asked to accept those parts of the statement as true and on that basis to acquit the appellant of all but the assault on Andrew Richardson. They were invited by counsel to take the transcript of the statement into the jury room to consider while deliberating on their verdict. They were permitted by the sheriff to do so. The sheriff commended the speeches of counsel to the jury, without expressing any reservation about their considering the exculpatory parts of the statement. In these circumstances it is not in our view realistic to suppose that the jury might have thought that they were not entitled to attach weight to the exculpatory content of the statement if they accepted it as true. We are therefore satisfied that, notwithstanding the misdirection, it has not been shown that there has been a miscarriage of justice.

Result
[15] The appeal against conviction is therefore refused.