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Cite as: [2005] ScotHC HCJAC_34, [2005] HCJAC 34

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Meyl v. Her Majesty's Advocate [2005] ScotHC HCJAC_34 (29 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Hamilton

Lord Weir

[2005HCJAC34]

Appeal No: XC1258/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL AGAINST CONVICTION

VADIM IZRAILEVICH MEYL

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Balfour & Manson

Respondent: Gilchrist, A.D.; Crown Agent

29 March 2005

[1] In the High Court at Aberdeen the appellant was convicted of a charge of contravening section 1 of the Road Traffic Act 1988. The charge was in the following terms:

"On 1 September 2002 on the A96 Keith to Fochabers Road, at Regent Square, Keith, on the outskirts of Keith near to its junction with the B9017 Road to Newmill, and near to its junction with the unclassified road to North Bogbain, Keith, Moray, you did drive a mechanically propelled vehicle, namely motor car registered number FD02 OXT dangerously and you did drive said vehicle close to and fail to maintain a safe distance between motor vehicle registered number N616 DMM and motor vehicle registered number FD02 JYT driven by you, attempt to undertake said vehicle, repeatedly overtake vehicles when road markings prohibited such manoeuvres and when views were restricted, drive at excessive speed and did thereafter cross on to the opposing carriageway and collide with motor car registered number P708 EAS forcing it off the carriageway and causing said vehicle to roll down an embankment whereby James Stephen MacRae, late of 16 Culduthel Park, Inverness, who was then driving said vehicle and Jean Ellen Mary MacRae, late of 129 Balloan Road, Inverness, a passenger in said vehicle were so severely injured that they died and said motor vehicle registered number P708 EAS was damaged; CONTRARY to the Road Traffic Act 1988, Section 1 as amended".

[2] The appellant is a 33-year-old Russian citizen who was employed by a company which placed Russian pupils at British public schools. On 1 September 2002 he was driving northwards for an appointment at Gordonstoun School. At least by the time that he reached Keith he knew that he had to make up time. The charge libelled four episodes of driving as dangerous. The last was at a left hand bend at a place called Rummach Croft, where the appellant's vehicle crossed to the opposite carriageway and collided with the vehicle driven by Mr MacRae, knocking it directly off the road at an angle of 90 degrees to its direction of travel, and down a steep embankment and into the bed of a burn.

[3] There was no independent eyewitness as to how the two vehicles collided with each other. According to the report by the trial judge the appellant gave evidence that he was not in a hurry. When he came round the bend at a speed of 50-55 mph he encountered three vehicles coming from the opposite direction. One of these vehicles, which was not the first of them, came across on to his carriageway. He did not remember whether he applied his brakes. He took action in an endeavour to avoid the vehicle but his vehicle collided with it.

[4] The Crown relied on the evidence of Sergeant Paul Bremner as an expert witness. He gave evidence that the physical signs on the surface of the road indicated that the appellant had not applied his brakes but had lost control of his vehicle. It had crossed the road, in his opinion, at a "critical speed" of between 67 and 74 mph. Sergeant Bremner was content to take the most conservative of these figures, namely 67 mph, as the critical speed. The Crown's case that the appellant had driven at an excessive speed also relied on the evidence of Valerie Brander, who was in the porch of a house at Rummach Croft, which is located at the bend in the road. She gave evidence that she heard his vehicle approaching the bend at a speed which, by reason of the noise which the engine was making, she described as " a hell of a lick". She said that, shortly after his vehicle went round the bend, there was " an almighty bang".

[5] A traffic expert led by the defence, Mr Gilfillan, who was a former member of the traffic department of Strathclyde police, considered that the appellant had gone round the corner at a lower speed, namely 60 mph. He said that he himself had successfully negotiated the bend at that speed. He also said in evidence that it was very difficult to judge speed from the sound of an engine.

[6] The grounds of appeal with which we are concerned relate to the directions of the trial judge to the jury. It is not maintained that the evidence was not sufficient to entitle the jury to convict the appellant of dangerous driving or that the trial judge misdirected the jury as to the test for dangerous driving or as to its application to the evidence in the case. In the first ground of appeal it is maintained that the trial judge ought to have directed the jury that, in the event of them finding the appellant was not guilty of contravening section 1 of the Road Traffic Act 1988, it was open to them to convict the appellant of a contravention of section 3.

[7] It is not in dispute that the Advocate depute did not invite the jury to consider this as an alternative verdict, but concentrated on the case that the appellant was guilty of causing the death of the deceased by dangerous driving. In the course of the hearing of this appeal we have had the opportunity of listening to the tape recording of the speech to the jury of the solicitor advocate who represented the appellant. It is clear from that recording that, having referred to the test for dangerous driving and to evidence in the trial, he observed that dangerous driving should be distinguished entirely from careless driving, for which there was a lesser standard, adding that he could perhaps leave that to be explained to them by the trial judge. From this it is clear that he to did not invite the jury to consider the alternative of a conviction of section 3, but used the reference to careless driving in order to highlight his submission that the evidence failed to come up to a case of dangerous driving.

[8] Mr Shead, who appeared for the appellant, pointed out that the driving libelled in the charge fell into four episodes. In regard to the last episode, the gravemen was that the appellant was guilty of dangerous driving by reason of his having driven at an excessive speed. It was in this respect that evidence in regard to the earlier episodes was relevant to the last one. Excessive speed might or might not provide evidence of dangerous driving. It was not clear cut, but a matter of degree, depending on the circumstances of the case. The trial judge had been incorrect to observe in his report that there had been no evidence of careless driving. There was, in his submission, a real issue about careless driving, which did not depend on whether either party invited the jury to consider convicting of section 3. The solicitor advocate for the appellant had to make a tactical decision as to what he should say to the jury about section 3. If the jury rejected the appellant's account about the last episode - as they appeared to have done - they still had to consider whether they were prepared to go so far as to say that the appellant was guilty of dangerous driving. The evidence of Sergeant Bremner was central to the Crown case. In his speech to the jury the solicitor advocate for the appellant advanced a number of criticisms of his evidence by reference to that of Mr Gilfillan. It was open to the jury to conclude that they were not satisfied that the appellant's speed had been as fast as Sergeant Bremner's estimate. Mr Shead also pointed out that the form of the charge had created a difficulty. The jury could have concluded that the appellant had been driving dangerously during one or more of the earlier episodes, but not during the last one. The trial judge should have directed the jury that it was open to them to bring in verdicts of contravention of section 1 and of section 3 in respect of different episodes. The overriding question was whether the giving of a direction in regard to section 3 was necessary in order to ensure that the appellant received a fair trial. This was not a matter for the discretion of the trial judge. Even if it was a matter for his discretion, the trial judge had not exercise that discretion properly.

[9] It is not in doubt that a judge may require to give directions to the jury in regard to a verdict which, as a matter of law, is an alternative to the charge which has been libelled. Where one or other of the parties has raised this as an issue the trial judge would normally direct the jury to consider that verdict. However, he or she would not necessarily have to do so. It is not difficult to envisage situations in which the jury should be directed that an alternative is not open to them. The Crown may have sought to persuade the jury to convict the accused on an alternative where there is insufficient evidence to support such a conviction. The defence may have invited the jury to consider the conviction of the accused of a lesser crime where on no view of the evidence could that arise.

[10] What then of the situation in which neither of the parties has mentioned an alternative verdict which could properly be returned on the evidence before the jury? If a direction in law is required as a matter of fairness the judge ought to give it (Templeton v H.M. Advocate 1961 J.C.62, per Lord Guthrie at page 69). Otherwise it is neither wise nor practical to lay down any hard and fast rule. Where an alternative crime is in some sense subordinate to the crime which has been libelled, the position may be comparatively straightforward. Thus, in the case of a charge of theft, it may be appropriate for the judge to give directions in regard to the crime of reset (Steele v H.M. Advocate 1992 J.C.1). However, it may often be right for the trial judge to proceed on the basis that, for tactical or other reasons best known to each of the parties, they have chosen to polarise the issue between them on an all or nothing basis. It should not readily be inferred that the absence of a lesser alternative would affect the prospect of the jury delivering a true verdict in regard to the charge libelled.

[11] In the present case neither party invited the jury to consider the statutory alternative of conviction of section 3. As we have already noted, the reference by the solicitor advocate for the appellant in his speech to the jury was designed to indicate how different careless driving was from dangerous driving. The former was a distinct offence and not an element in the proof of the latter. While we appreciate that, on the evidence in this case, it could have been argued that, if the appellant was guilty, he was guilty only of an offence against section 3, this was not an issue which either party sought to have determined by the jury. In our view the trial judge was not in error in not directing the jury that they should consider this alternative. In the circumstances we do not to require to consider the implications of the jury being invited to consider the delivering of different verdicts in respect of separate episodes of driving. We reject this ground of appeal.

[12] The second ground of appeal relates to the trial judge's directions to the jury in regard to the standard of proof of guilt. His directions were as follows:

"The standard of proof of guilt which is required of the Crown is proof beyond reasonable doubt. Now, these words mean very much what they say. Note, it is a reasonable doubt. Not a fanciful, speculative or academic doubt. Not a mathematical certainty either. It is if you like a doubt for which you can give a good reason or a doubt which is based upon a good reason. So if having considered the evidence you are satisfied beyond reasonable doubt that the accused is guilty it is your duty to convict him but if you are left with a reasonable doubt as to his guilt it is your duty to acquit him. So you ask yourselves the broad question are we satisfied beyond reasonable doubt that the crime in question was committed and if so that it was committed by the accused, that he was responsible for it. In view of what I have said, when I refer later, as I may do, to the question of whether the Crown have satisfied you that what is charged has been proved, you will understand I have in mind the standard of proof beyond reasonable doubt"

In this ground of appeal it is maintained that the directions were inadequate, in respect that the jury were not directed that it was the kind of doubt which would cause them to hesitate or pause before taking an important decision in the conduct of their own affairs, and that such a direction was required to allow the jury to apply the correct standard to their deliberations. In developing this ground of appeal Mr Shead sought to rely on a passage in A v H.M. Advocate 2003 S.C.C.R.154 at paragraph [12] where the court stated that

"a trial judge or sheriff adequately fulfils his duty if he tells the jury clearly and concisely that the standard of proof that the Crown are required to meet is that of proof beyond reasonable doubt and describes the idea of a reasonable doubt as one that would cause a juror to hesitate or pause before taking an important decision in the conduct of his own affairs (cf MacDonald v H.M. Advocate [1995 S.C.C.R. 663]: Buchanan v H.M. Advocate [1997 S.C.C.R.441]. There is no need, in our opinion, for the trial judge or sheriff to go beyond those directions".

[13] Mr Shead submitted that the direction which was omitted by the trial judge would have provided a practical understanding of the standard of proof. In the present case it was important in view of the narrow difference between the experts as to the speed of the appellant's vehicle.

[14] We are not persuaded that the judge's directions were inadequate in this respect. In A v H.M. Advocate the appeal arose out of the fact that the trial judge had misdirected the jury by introducing the expression " reasonably sure". We understand the court to be indicating in paragraph [12] what would be sufficient to enable a trial judge or sheriff to fulfil his duty, rather than prescribing a mandatory form of direction. We note that in MacDonald v H.M. Advocate, which was cited by the court, the Lord Justice Clerk (Ross) said at page 671:

"In our experience, under present-day practice it is common for judges to direct juries that a reasonable doubt is a doubt which would cause them in the conduct of their own affairs to hesitate or pause before taking a decision. Such a direction is a sound direction, but it obviously need not be given in every case because each judge has a discretion as to how he is to direct the jury on the matter of reasonable doubt".

[15] In our view the directions given by the trial judge in the present case were adequate without the need for the addition of the form of words referred to in the ground of appeal. Accordingly we reject this ground of appeal.

[16] In the course of the history of the appeal the court allowed an additional ground of appeal to be received. In this ground of appeal it is maintained that a report which the appellant's agents have obtained from Dr Bryan Chinn in April 2004 casts doubt on the methodology used, and the conclusions reached, by the police, and that had Dr Chinn been called as a witness it is likely that his evidence would have had a material bearing on the jury's assessment of the crucial issues at the trial. As regards the need for a reasonable explanation as to why the evidence of Dr Chinn was not heard at the trial, it is pointed out that the expert instructed for the appellant, that is to say Mr Gilfillan, did not criticise the methodology used by the police or suggest that there was something fundamentally flawed in the approach of the police. Accordingly there was no reason for agents to consider the need to obtain a second opinion or question the advice which was then offered.

[17] We have before us a copy of Dr Chinn's report, along with affidavits from him and from the solicitor advocate who represented the appellant at trial. Before proceeding further with this ground of appeal we require to be satisfied that the evidence which Dr Chinn is able to give is not merely more support for the defence but is in substance a new attack on the police evidence. We require for this purpose the transcripts of the evidence given by Sergeant Bremner and Mr Gilfillan. Since Dr Chinn's criticisms are apparently based on a police report rather than the evidence given in court by Sergeant Bremner, he should be given the opportunity to comment in writing on Sergeant Bremner's evidence. A copy of the police report should be produced for use in this court. Mr Gilfillan should also be invited to comment in writing on the differences between his approach and that of Dr Chinn.

[18] This ground of appeal will be further considered when these steps have been taken. We continue this appeal to a procedural hearing before three judges, at which the court can satisfy itself that the necessary preparations for a full hearing have been carried out.