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Cite as: [2005] HCJAC 35, [2005] ScotHC HCJAC_35

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Valenti v. Her Majesty's Advocate [2005] ScotHC HCJAC_35 (18 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Marnoch

Lady Cosgrove

[2205HCJAC35]

Appeal No: XC802/03

OPINION OF THE COURT

delivered by LORD MARNOCH

APPEAL AGAINST CONVICTION (NO. 1)

GEMMA VALENTI

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: J. Thomson, Q.C., Miss Jack; Drummond Miller, Edinburgh

Respondent: McCallum, A.D.; Crown Agent

18 March 2005

[1] The appellant, along with her mother Isabell Veronica Carvill, was convicted after trial of the following charge:

"on 11 July 2002 at 5 Abigail Place, Blantyre, you did assault Kenneth Nichol Brown Finnie, care of Strathclyde Police, Hamilton, and did punch him on the head and body, knock him to the ground, repeatedly kick him on the head and body, repeatedly jump and stamp on his head and body, strike him on the head with a bottle or similar instrument, repeatedly strike him on the head and body with a broken piece of plastic or similar instrument, strike him on the head and body with a glass or similar instrument, strike him on the body with a knife or similar instrument and you did murder him".

Another co-accused, Isobel Black, was convicted of attempted murder under deletion of the words "strike him on the body with a knife or similar instrument".

[2] The grounds of appeal which we have been asked to consider are in the following terms:

"1. The trial judge erred in repelling a submission that the Crown failed to

establish concert with regard to the use of the knife which inflicted the fatal injury.

2. Throughout the evidence the Crown position was that there were

bodies of evidence supporting either the appellant or Isabell Carvill being the person who inflicted the single fatal blow. There had been evidence led directed against both women. This included confessions by both parties (all of which could be said to be inconsistent with the pathology), eye-witness evidence of Isabell Carvill being in possession of a knife (described by a Crown witness as possibly being the knife that inflicted the fatal wound) at a time when she and Isobel Black were both punching the deceased, and when the appellant was entering the house in possession of a screwdriver. In presenting the Crown case the Advocate Depute did not seek to show that any particular accused was responsible for inflicting the fatal stab wound. It was clear that the Advocate Depute intended to leave the question of who had inflicted the fatal wound to the jury.

That position changed during submissions after the close of evidence and after the intervention of the trial judge, prior to speeches. [Reference is made to the notes taken by the instructing solicitor during the course of submissions which were produced in support of the appeal against refusal of leave to appeal.]

As a result of said intervention by the trial judge, the Crown was forced to deviate from its position and instead adopted the position that the appellant was the person responsible for the fatal wound. The Advocate Depute then addressed the jury on the basis that the appellant was the person responsible for the fatal wound. The Advocate Depute sought a conviction of Isabell Carvill on an art and part basis only.

The trial judge erred in law in seeking to influence the manner in which the Crown case was presented to the jury. In doing so the trial judge usurped the function of the Crown. The change in the Crown approach, as elicited by the trial judge, was to the prejudice of the appellant. It is reasonable to infer that had it not been for the intervention of the trial judge, the Crown would have addressed the jury on the basis that it was open to them to find that either the appellant or Isabell Carvill was the actor.

3. Prior to the trial the appellant lodged a Notice in terms of section 78(1)

of the Criminal Procedure (Scotland) Act 1995, intimating that she intended to lead evidence which may tend to incriminate inter alios Isabell Carvill. It was clear throughout the conduct of the case, that the position of the appellant was that the fatal wound was inflicted by Isabell Carvill. The appellant went to the jury on that basis. The manner in which the trial judge charged the jury had the effect of removing the appellant's defence from the jury.

The trial judge failed to direct the jury that the Crown's submission that the appellant was the actor may not have in fact been in line with the evidence adduced and that it was open to them to consider whether (a) the third accused [Isabell Carvill] was the actor and (b) whether or not the appellant was acting in concert in relation to the use of the knife.

4. The trial judge erred in charging the jury in relation to the striking of

fatal wound. The trial judge directed the jury only on the basis that the actor was the appellant. In his charge to the jury, the trial judge stressed that it was not open to the jury to hold that Isabell Carvill had inflicted the fatal blow and therefore they could convict her only on an art and part basis. The only options available to the jury were that the fatal wound had either been inflicted by the appellant, or by a third party, or that there had been no fatal stab wound. As a result, the jury were deprived of accepting the position of the appellant, namely the incrimination of Isabell Carvill. It is reasonable to infer that the jury would have taken the judge's comments to mean that they could not accept the body of evidence which pointed to Isabell Carvill inflicting the fatal blow, including her clear and unequivocal written signed confession to the police.

5. In the course of the trial there was evidence led on behalf of Isabell

Carvill. The evidence adduced was of a 'confession' made by the appellant in the presence of a named witness who was on the list of witnesses for the third accused. The said witness was never called to give evidence and therefore no evidence was led in support of the alleged confession. In his charge, the trial judge failed to direct the jury to ignore that evidence."

[3] We deal with each in turn.

[4] As the trial judge comments in his report, it is difficult to understand the first ground of appeal, as stated. This is because the Crown sought conviction of the appellant only on the basis that she was actor, and this was made plain to the jury in the course of the judge's charge. Mr. Thomson, Q.C., for the appellant, made it clear that nothing more was intended by this ground of appeal than was contained in grounds (2), (3)and (4), all of which to a considerable extent overlapped.

[5] So far as the second ground is concerned, the whole argument came to be rested on the following passage contained in notes taken by the appellant's solicitor:

"AD: Crown can only rely upon the evidence ... The Crown have to accept that there is no basis that IB is the one who administered that stabbing. There are then admissions by IC and GV. It would not be possible for the Crown to submit which of them was the actor. There are cases where an actor cannot be identified.

JUDGE: If actor cannot be identified, the Crown must rely on concert.

AD: We have evidence of both of them, more than one, being the actor.

JUDGE: If you have two persons who are admitting to doing one thing, which could only be done by one, surely the Crown have to take a position on this? Difficult to see where there is a body of evidence pointing to both being the actor, but only one could be the actor, Crown can simply say it doesn't really matter.

AD: Based on the evidence available to the Crown, the actor was the second accused. That is the Crown's position."

[6] In our opinion it is quite impossible to infer from the foregoing exchange that the trial judge acted in any way improperly, let alone that he influenced the Crown in departing from what is said to have been its earlier position of leaving open the question of who inflicted the single fatal stab wound.

[7] In the first place, in the early part of the exchange it is clear that both the advocate depute and the judge were well aware that there could be cases where no actor can be clearly identified and where, instead, the Crown must rely on concert. Brown v. H.M. Advocate 1993 S.C.C.R. 382 was just such a case and we have no doubt that the same approach could have been left open to the jury in the present case in the event that they were unable to identify who, as between the two remaining accused, was the actor.

[8] The second part of the exchange deals with a quite separate proposition advanced, as it seems, rather unthinkingly by the advocate depute, namely that both accused could be found guilty as actor. It was to that proposition that the judge responded by stating what appears to us to be no more than the obvious, namely that where there is only one fatal stab wound there can be only one actor. If, therefore, this exchange had the effect of persuading the Crown to do anything, it could only have been to refrain from advancing to the jury the quite impossible proposition that this was a case where they could find both accused guilty as actor. In that situation there is clearly no miscarriage of justice whatsoever.

[9] Before we leave this ground of appeal we should perhaps point out that both it and grounds (3) and (4) appear to proceed on the basis that the Crown and/or the trial judge were in some way obliged to put the case before the jury on the footing that they would have to decide which, if either, of the accused was the actor. In our opinion, however, that is a false premise and, if the Crown had not opted to treat the appellant as actor, it is almost inevitable that matters would have been left entirely open by leaving it to the jury to decide whether either could be found guilty as actor; if so, whether the other should be found guilty art and part; and, if not, whether either or both should be found guilty through the application of that same doctrine. In the result, it is very difficult to see how the appellant was in any way prejudiced by the decision of the Crown to proceed against her only on the basis that she was guilty as actor.

[10] Turning now to the third ground of appeal, we have already pointed out that the question of concert did not really arise so far as this appellant is concerned. For the rest, we are in no doubt, first, that the Crown, in its wisdom, was entitled to seek convictions against the two accused on the basis of principal actor and concert respectively, and, second, that the trial judge then had no option but to charge the jury on the same basis. Notwithstanding this, we are quite clear that the trial judge in no way "removed the appellant's defence from the jury". On the contrary, at page 58 of the charge, the trial judge says this:

"You will take into account the submissions made by Mr. Thomson and his submission that the Crown are wrong to abandon the evidence that points to Isabell Carvill being the actor who stabbed Kenneth Finnie".

In our opinion this makes it perfectly clear that, in deciding whether to convict the now appellant as actor, the jury had to take into account everything said by her and her counsel to the opposite effect, including, in particular, the suggestion that it had been the co-accused who stabbed the deceased.

[11] Mr. Thomson eventually accepted that the fourth ground of appeal raised no new issue beyond those raised by the second and third grounds and in our opinion he was right to make that concession. In any event, for the reasons just given in relation to the third ground of appeal we are satisfied that this ground of appeal is likewise without substance.

[12] That leaves only the fifth, and last, ground of appeal which we can deal with very shortly. As stated, it is rather misleading because, as Mr. Thomson accepted in the course of his submissions, there was no evidence adduced of a "confession" in the circumstances to which the ground of appeal refers. All that happened was that counsel for Isabell Carvill put it to the witness, John Hamilton, that some weeks before the trial, at Isabell Carvill's house and in the presence of Isabell Carvill, himself and a woman named Ann Maguire, the appellant had started to cry and had said "I'm just going to tell that it was me that done it. It was an accident", or words to that effect. To that question, however, John Hamilton replied that he did not remember this being said. In the course of his charge the trial judge directed the jury, in terms, that "questions themselves are not evidence unless the witness agrees with the contents of the question" and, in our opinion, that was a careful direction, not always given, which fully met the situation. Mr. Thomson suggested that because of the dramatic nature of this particular question some special reference should have been made to it by the trial judge. In our opinion, however, that would have been a very dangerous course to embark on and might well have been open to the criticism that it simply focused attention on the suggestion which had been made. Mr. Thomson also submitted that the trial judge should have directed the jury that the question ought not to have been put by counsel in the absence of evidence to support it. As to that, it seems to us that there was no way in which the trial judge could have been alert to the state of counsel's instructions and this, in any event, is not a matter which would normally be canvassed before the jury.

[13] Furthermore, we fail to see how Mr. Thomson can complain about the putting of this question by counsel for Isabell Carvill when, only moments earlier, in the course of his own cross-examination of John Hamilton, he himself had put it to John Hamilton that he had never been present when it might have been suggested that the appellant had admitted to her mother that she had done the stabbing.

[14] For all these reasons, we have refused the appeal.