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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Macfadyen
Lord Johnston
Lord Wheatley
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[2008] HCJAC2
Appeal Nos: XC697/07
M133/07
OPINION OF THE COURT
delivered by LORD
MACFADYEN
in
BILL OF ADVOCATION
by
ROBERT WILLIAM WILSON
MEECHAN PATERSON
Complainer;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Act: Jackson, Q.C., Forbes;
Balfour + Manson LLP
Alt: McSporran, A.D.; Crown Agent
15 January 2008
Introduction
[1] By this Bill
of Advocation the complainer seeks to have this court recall an order
pronounced by the trial judge deserting his trial pro loco et tempore, and substitute an order deserting the
proceedings simpliciter. In addition to the Bill of Advocation there
is before the court a petition to the nobile
officium seeking the same remedy.
When the matter called before the court for a hearing it was common
ground between the complainer and the respondent that the appropriate process
in which to consider the issue raised was the Bill of Advocation. We accept that that is correct. We shall accordingly address the matter by
reference to the Bill of Advocation.
Whatever the outcome of that process, the petition to the nobile officium will be refused as
incompetent, since the Bill of Advocation, if well founded, affords the
complainer a remedy.
The circumstances
leading to desertion
[2] The
complainer was indicted at the instance of the respondent on six charges. Charge 1 was a charge of murder by
shooting. Charge 2 was a charge of
assault by presenting a firearm. Charges
3, 4 and 5 were of statutory offences under the Firearms Act 1968 as amended. Charge 6 was a charge of attempting to
pervert the course of justice. There
were two associated indictments, one charging a further contravention of the
Firearms Act 1968, and one charging contraventions of sections 103(1)(b) and
143(1) and (2) of the Road Traffic Act 1988.
Hereafter in this Opinion references to "the indictment" are references
to the indictment which contained the murder charge.
[3] The
complainer's trial on the indictment began on 2 July 2007.
A jury was sworn, and thereafter a hearing took place in respect of a
minute presented by the complainer under section 72 of the Criminal Procedure (Scotland) Act 1995. Evidence was led in the course of that
hearing. On 10 July the trial judge
ruled on the issue raised in the minute.
In consequence of that ruling the indictment was amended by the deletion
of charge 6. Thereafter, because a
number of members of the jury had holiday commitments which made them
unavailable for the continuing trial, the trial judge ex proprio motu deserted the diet pro loco et tempore. On 11
July a new jury was sworn, and the trial re-commenced.
[4] In the course
of the trial, evidence was led from a Crown witness, Brian Adair, of an
admission allegedly made to him by the complainer. Adair spoke to the complainer and the
deceased being present together in his home; of an argument between them; of
their leaving the house; and of his then hearing two gunshots. He then spoke to leaving the house and
finding the body of the deceased nearby.
He said that while he was tending to the deceased he received a call
from the complainer on his mobile telephone, in the course of which the
complainer said:
"Is he dead yet? If not, tell him I'm going to put another one
in him".
[5] The Crown
were aware that Adair would or might give evidence about that alleged
admission. A statement which he had
given to the police contained a passage referring to the alleged
admission. That statement was disclosed
to the complainer's solicitors. The
passage in the statement which referred to the alleged admission had, however,
been "redacted" from the copy of the statement so disclosed. In other words, that passage had been
obscured so that it could not be read, although it remained evident that there
was a passage which had been so obscured.
[6] Following
Adair's evidence in chief, counsel for the complainer sought and obtained an
adjournment in order to check the terms of the original handwritten version of
Adair's statement. On so checking the
handwritten statement, counsel learned for the first time that Adair's
statement contained reference to the alleged admission which he had spoken to
in evidence, and that that reference had been redacted from the copy statement
disclosed to the defence.
[7] The following
day counsel for the complainer, in the absence of the jury, moved the trial
judge to desert the diet simpliciter. Counsel sought to support his motion by
reference to a number of other aspects of the Crown's conduct in addition to
the redaction of Adair's reference to the alleged admission. Having heard counsel and the Advocate depute,
the trial judge refused the motion to desert the diet simpliciter, but deserted the diet pro loco et tempore. He set
out his reasons for taking that course at length in a written judgment.
The complainer's
submissions
[8] Mr Jackson
submitted that the relevant test to be applied in determining whether a diet
should be deserted simpliciter had
been set out authoritatively in H. M.
Advocate v Fleming 2005 JC 291,
2005 SCCR 324. At paragraphs 33 and 34,
Lord Justice Clerk Gill, with whom the other members of the court agreed, said:
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"[33] When a judge has to decide whether or not to desert a
trial, he bases his decision on such facts as are known to him at that stage
(Donaldson v Kelly [2004 SCCR 153], paragraph 18). He should desert the trial if the fairness
of it has been prejudiced or if there is at least a material risk that it may
have been. As I have said in another
context, a judge may be justified in deserting a trial even where a
subsequent investigation of the circumstances establishes that there was in
fact no miscarriage of justice (Gray v
H.M. Advocate [2005 SLT 159, 2005
SCCR 106], paragraph 6).
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[34] But when the trial judge has to decide whether to
desert pro loco et tempore or to
desert simpliciter, he has to
direct his attention to the future and particularly to the circumstances in
which any retrial will take place.
Counsel for the first respondent has submitted that the test is
whether at a retrial a fair trial could be guaranteed. I do not agree. In my view the test is whether at a retrial
an unfair trial would be inevitable."
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[9] Mr Jackson
recognised that a number of the points made in the Bill of Advocation could not
satisfy that test. He submitted,
however, that two factors rendered it inevitable that a retrial would be
unfair, and therefore justified desertion simpliciter. It is therefore sufficient for us to confine
our attention to these factors.
[10] The first
factor on which Mr Jackson relied was that, by the time the redaction of the
alleged admission from Adair's statement came to light in the course of the
trial, six or seven important Crown witnesses had been led and had been
cross-examined. When they came to give
evidence at any retrial, they would be forewarned of the likely lines of
cross-examination, and would be in a position to adapt their evidence
accordingly. That was inevitably
prejudicial to the complainer. It would,
in the circumstances, render an unfair trial inevitable. Mr Jackson recognised that it could be said
in relation to any retrial that witnesses who had given evidence at the original
trial would be forewarned about lines of cross-examination, and the accused
would thereby be prejudiced. He
submitted, however, that where a retrial was inevitable, without any fault in
the system, as for example when the first trial was deserted because the judge
fell ill in the course of the trial, retrial had to be accepted, and, although
prejudicial, was not properly to be regarded as unfair. Where on the other hand, the cause of the
need for the retrial was fault on the part of the Crown, it was unfair to
subject the accused to a second trial in which the witnesses were forewarned of
the likely lines of cross-examination.
[11] The second
factor on which Mr Jackson relied related to the issue which had been raised in
the section 72 minute in respect of the identification procedures which had
been followed. The trial judge had ruled
that certain identification procedures had been unfair and that evidence
derived from them was on that account inadmissible. The effect of that was, it was submitted,
that the Crown had, by conducting the unfair procedures, deprived the
complainer of the opportunity to take part in a fair identification procedure
and so be exculpated. It was accepted,
however, that a number of the eyewitnesses knew the complainer.
[12] Mr Jackson
submitted that these two factors, when taken together, satisfied the test set
out in Fleming. If a retrial were to take place, it would
inevitably be unfair. The diet should
therefore have been deserted simpliciter. The Bill of Advocation should therefore be
passed and the trial judge's refusal of the motion to desert simpliciter should be reversed.
Discussion
[13] Having heard
Mr Jackson, we did not consider it necessary to call upon the Advocate depute
to reply. Mr Jackson rightly identified
the relevant test. The question is
whether it can be said that any retrial would inevitably be unfair (Fleming, paragraph 34).
[14] Mr Jackson
recognised that he could not say that the fact that witnesses who had given
evidence at the original trial would be forewarned about likely lines of
cross-examination inevitably led to an unfair retrial. If that were so, no retrial could ever take
place after material witnesses had given evidence at the original trial. He sought to distinguish the situation which
arose where the need for the retrial arose without fault on the part of anyone
from the situation which arose where the need for a retrial was caused by fault
on the part of the Crown. We do not
consider that that distinction is sound.
It seems to us that it cannot be said that a retrial rendered necessary
because of some fault on the part of the Crown is inevitably unfair, when it is
recognised that a retrial made necessary without fault is, or can be,
fair. The potential prejudice - that
material witnesses will have been rehearsed, and may tailor their evidence to
meet the line of cross-examination that they have been forewarned will probably
be deployed - is the same in either case.
[15] We are not
persuaded that the deficiencies in the identification parade procedure which
led the trial judge to exclude certain evidence as unfair and therefore
inadmissible has the consequence that any retrial will inevitably be
unfair. Whether there is any merit in
the contention that the complainer has been deprived of the opportunity to
obtain, from a fair identification procedure, evidence tending to exculpate him
depends on viewing the identification evidence as a whole after it has been
given. We note that a number of the
Crown witnesses knew the complainer.
That may affect the strength of the point.
[16] We do not
consider that the points relied upon by Mr Jackson, either individually or in
aggregate, yield the conclusion that any retrial would inevitably be
unfair. It may be that after retrial
these points can be restated and will support the conclusion that the retrial
was unfair. Applying the Fleming test, however, we cannot say at
this stage that that is inevitable. We
therefore conclude that the trial judge was right to refuse to desert the diet simpliciter, and right to desert pro loco et tempore.
Result
[17] For the
reasons which we have set out we refuse to pass the Bill of Advocation. As we have already indicated, since the Bill
of Advocation was the appropriate procedure by which to bring before the court
the issues which the complainer sought to raise, the petition to the nobile officium, which raised the same
issues, is refused as incompetent.
