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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General
Lord Kingarth
Lord Eassie
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[2008] HCJAC 29
Appeal No: INFO
OPINION OF THE COURT
delivered by THE LORD
JUSTICE GENERAL
in
APPEALS AGAINST CONVICTION
and SENTENCE
by
MURRAY KENNETH MASON
First Appellant;
and
SIMON JAMES McDOUGALL
Second Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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First Appellant: Gilfedder, solicitor
advocate, Walker, solicitor advocate;
Gilfedder & McInnes, Edinburgh
Second Appellant: Shead; Bruce Short, Dundee
Respondent: Prentice, Q.C., solicitor
advocate, A.D.; Crown Agent
Introduction
[1] The
appellants were, with two others, Derek Tarbett and William John Getty, tried
in the High Court at Edinburgh with various offences arising
primarily out of events which took place in Dundee on 30
November 2002. The first appellant was found guilty of
charge (1) (reset of a passport); under
certain restrictions, of charge (5) (assault of Derek Simpson); under certain restrictions, of charge (6)
(assault and robbery of Vassilis Gaganis); of charge (7) (assault of Kostas Gaganis, with
intent to rob him); and, under certain
restrictions, of charge (10) (assault and robbery of Robert Fraser Smith). The second appellant was found guilty of
charges (5), (6) and (10) (each as restricted), but in the case of charge (5)
also of robbery of the complainer; and he
was found guilty of charge (7); he was
also found guilty of charge (8) (assault with intent to rob of Duncan Sinclair
Hunter) and of charge (9) (assault with intent to rob of David Leon
Goodchild); in his case the offences
were each aggravated by the appellant having been, at the relative time, on
bail. The trial judge sentenced the
first appellant to a cumulo term of
ten years' imprisonment and the second appellant to a cumulo extended sentence of sixteen and a half years' imprisonment
of which the custodial term was twelve and a half years (including six months
in respect of the bail offences) and an extension period of four years. Each appellant appeals against both
conviction and sentence.
The circumstances
[2] The
complainer on charge (5) was, at the material time, a 19 year old student. He had spent the evening of 29 November taking
alcohol i.e. drinks in the company of friends in Dundee.
He had later gone to a nightclub, which he left at about 1.45 a.m. on 30 November. As he was walking home a car containing
several occupants passed him. A verbal
altercation appears to have occurred between the complainer and these
occupants. The complainer proceeded on
his way, but the car was driven round certain streets to intercept him. An occupant then got out of the car, attacked
the complainer and rendered him unconscious.
Property belonging to him was stolen.
[3] Within a very
short time thereafter and in a nearby street the car and its occupants came
upon the complainers in charges (6) and (7).
These were two Greek brothers, one of whom (Vassilis Gaganis) lived and
worked in Dundee.
His brother, Kostas, was in Dundee on holiday. The
brothers each had had two or three drinks in the Students' Union but remained
sober. As they were making their way
home they came upon the car and its occupants.
According to the evidence of Kostas, occupants of the car emerged from
it and sought directions to a nightclub.
Both brothers were then set upon and knocked to the ground. The assaults involved punching and kicking
and, in the case of Vassilis, stamping upon his head and body. The appellants were each convicted of assault
upon Vassilis to his severe injury, permanent impairment and to the danger of
his life and of his attempted murder.
They were also convicted of the robbery of certain property from him. They were further convicted of assault upon
Kostas to his severe injury and with intent to rob him.
[4] The
complainers in charges (8) and (9) were also students. Both had that evening been drinking in the
Students' Union. When they left both
were affected by alcohol. As they were
walking home together along a street, a short distance from where the events
giving rise to charges (5) - (7) had taken place, they were approached by two
people, who asked them for directions to the Enigma nightclub. Thereafter they were set upon and knocked to
the ground. The assailants were
interrupted when a taxi stopped and a man and woman got out to come to the
assistance of the victims.
[5] The victim on
charge (10), who was attacked between the attacks narrated in charges (6) and
(7) and those narrated in charges (8) and (9), was again a student. He had also been at the Students' Union. As he was walking home alone a person crossed
the road and asked him for directions to the Enigma nightclub. He was then assaulted, being pushed onto his
back and repeatedly stamped on the face.
At least one other person was present.
A demand was made for the complainer's wallet, which he handed
over. It contained money, bank cards and
credit cards. When he got home, the
complainer realised that he had also been robbed of his mobile phone.
[6] There was
ample evidence that the various assaults described comprised a sequence of
concerted crimes committed against innocent and vulnerable victims within a
short space of time and all in the same part of Dundee.
The use of a Peugeot car was associated with charges (5), (6) and
(7). The first appellant was, on his own
admission, the owner and driver of that car.
The first appellant was also associated with charge (10) in that the
bank and credit cards then stolen were later recovered from his home. The first appellant, who for most of the
trial was not legally represented, gave evidence from the witness box, in which
he admitted driving the car that night and having as passengers the other
accused and another man (a brother of the accused Getty). He denied any criminal involvement in the
assaults perpetrated. The second
appellant did not give evidence. The
accused Getty gave evidence on his own behalf in which he denied any criminal
involvement but incriminated both appellants.
The charges against Getty were found not proven. The accused Tarbett was found guilty on
charge (5) of theft of a mobile phone and of reset of a wallet, the only charge
then outstanding against him.
Submissions for the
second appellant
[7] At the
hearing of the appeal submissions on behalf of the second appellant were made
first. It is convenient to adopt the
same order in this Opinion. The written
grounds of appeal lodged on his behalf were defuse and difficult to
understand. Leave to appeal against
conviction was, however, granted in respect of grounds (a), (b) and (c) (which
appeared to be interrelated) and ground (e).
In his oral submissions to us Mr. Shead, on the second appellant's behalf,
treated grounds (a) - (c) as essentially giving rise to a single issue, namely,
whether there was, in respect of charges (8), (9) and (10), sufficient evidence
of the second appellant's participation in the commission of these crimes. Ground (e) was related to an alleged
misdirection by the judge.
[8] In developing
these contentions Mr. Shead submitted that, in the context of the application
of the Moorov doctrine, it was
necessary that any single source of evidence inculpating an accused on a
particular charge required to demonstrate that he was the perpetrator (or one
of a number of perpetrators) of the crime in question. (Lindsay
v HM Advocate 1993 SCCR 868, per
Lord Justice General Hope at pages 873E-874B). None of the complainers in the three charges
in question had identified the second appellant as an assailant. The only evidence inculpating him on charges
(8) and (9) had been his statement at police interview which included an
admission that he was one of four persons present when these complainers were
attacked but in which he had also denied having participated in these attacks,
his statement being that two of the others had been the perpetrators. As regards charge (10), the only additional evidence
associating the second appellant with that attack had been forensic science
evidence to the effect that small spots of blood at the bottom of his jeans
were linked to the DNA of the complainer on that charge. Mere presence was not enough. The case had been presented by the Crown on
the basis of proof based on the Moorov
doctrine and the trial judge had charged the jury accordingly. There had been no attempt at the trial to
rely on the principles described in Howden
v HM Advocate 1994 SCCR 19. It was plain that different principles
applied in Howden from those in Moorov (Gillan v HM Advocate 2002
SCCR 502). Howden was particularly difficult where there was more than one
perpetrator and, possibly, a different composition of perpetrators of each
crime. If there was an insufficiency of
evidence against the second appellant on charges (8), (9) and (10), this might
have an impact on his conviction in relation to other charges where the jury,
on one view of the evidence, might likewise have been relying on single sources
of evidence. Ground (e) did not add much
to grounds (a) - (c), but the way in which the judge had charged the jury may
have led them to think that they could apply the Moorov doctrine as between two charges which embraced a single
incident, as was the case in charges (6) and (7) and charges (8) and (9).
Response by the Crown
[9] The Advocate
depute in response to these submissions argued that, where the Moorov doctrine applied, the
identification of a perpetrator might be indirect (Lindsay v HM Advocate). The perpetrator was not restricted to the
actor or actors but could include a person guilty art and part including, in
appropriate circumstances, a person who by his presence aided the assailants (Hume on Crimes I page 264). There was ample evidence of a common plan (to
attack and rob vulnerable pedestrians) and of the second appellant's
participation in that common plan.
Reference was made to McKinnon
v HM Advocate 2003 SCCR 224,
especially at para. [29] and to Cameron v
HM Advocate [2008] HCJAC 10, at para.
[15]. The second appellant had at police
interview accepted that he was present (in the vehicle) when charges (5), (6)
and (7) had been committed and present (on foot, in the street) when charges
(8), (9) and (10) had been committed.
This was not a case of a bystander caught up in a single outbreak of
violence, but one where the second appellant had been present throughout the
course of a series of violent incidents.
Other blood on his jeans has also been linked by DNA to the complainer
on charge (5). As to the jury being entitled
to accept an admission by an accused and reject a related explanation given by
him, reference was made to Croly v HM Advocate 2004 SCCR 389. The judge's charge had, if anything, been
unduly favourable to the second appellant.
The judge might have given, but did not give, a direction based on Howden.
Had that been given, it was difficult to see how the jury could have
done other than convict the second appellant, the series of attacks having
singular similarities. There had been no
miscarriage of justice.
Discussion of the
second appellant's appeal
[10] It is
unnecessary for the purposes of this appeal to discuss the principles
enunciated in Howden v H.M Advocate (identification of the
perpetrator of one crime by proof that he perpetrated another crime and by
circumstantial evidence that the perpetrator of the one was also the
perpetrator of the other). This case
proceeded on the basis that for proof of the second appellant's participation
in charges (8), (9) and (10) the jury, as well as being satisfied that there
was a common and concerted course of action, required to find in relation to
each charge a single source of evidence which implicated the second appellant
as a perpetrator of these crimes. That
evidence might be direct or indirect.
There was ample evidence of a series of attacks perpetrated within a
short period and a narrow geographical compass by some, at least, of the
occupants of the car driven by the first appellant. The second appellant was one of those
occupants. There was, independently of
the application of the Moorov
doctrine, sufficient evidence of his participation in the assaults libelled in
charges (5), (6) and (7). The next
assault chronologically was that libelled in charge (10). That involved the complainer being stamped
repeatedly on his face. Blood from him
was found on the bottom of the second appellant's jeans. Against the background of the previous
assaults and the second appellant's participation in them, that forensic
evidence provided sufficient, indeed compelling, evidence of his participation
in that assault. Charge (8) and (9) in
effect comprised a single incident. The
complainer in charge (9) referred to three or four persons having been involved
in the attack upon him and his companion.
The second appellant's statement at police interview was that four
persons, all from the Peugeot car, were present although two, not including
himself, were involved in the "battering".
For the purposes of sufficiency it is legitimate to proceed on the basis
of the admission of presence (physically on foot) without accepting the
explanation by way of denial of physical participation. Even if the evidence was not sufficient to
implicate the second appellant in physical participation in these assaults, his
presence might have been apt in the circumstances to demonstrate that he lent
assistance to the assailants and so be sufficient to prove guilt art and part (Hume on Crimes vol. I page 264). But the evidence went further. The complainer on charge (9) spoke to four
people having been involved in the assaults upon him and his companion. The jury, by accepting that evidence along
with the second appellant's admission of presence along with the others, would
have been entitled to conclude that the second appellant was one of those
assailants. In these circumstances there
was sufficient evidence in law on which the jury could convict the second
appellant on these three charges.
[11] The judge
directed the jury:
" ... there is not a sufficiency of
evidence to enable you to convict the third accused [that is, the second
appellant] of charges 8, 9 or 10, unless you decided that they formed part of a
course of criminal conduct by him and you applied the special rule [the Moorov doctrine]. So 8, 9 or 10 he must be acquitted unless you
decide that the special rule applies, and applies to those charges or any of
them."
It was quite plain on the evidence that the events giving
rise to charges (8) and (9) comprised a single incident in which two persons in
each other's company were assaulted by a group of men. The evidence implicating the second appellant
implicated him equally upon both charges.
No jury, reasonably following these directions, could have supposed that
the same evidence on charges (8) and (9) was corroborative of itself. Plainly the jury would have understood that
charges (8) and (9) were, for the purposes of the Moorov doctrine, to be treated as a single incident. Ground of appeal (e) is without substance.
[12] In these
circumstances the second appellant's appeal against conviction must be refused.
The first appellant's
appeal - procedural history
[13] The appeal of
the first appellant raises quite different issues.
[14] The case first
called for trial on 28 March 2003 in the High Court at Forfar. On the motion of the fourth accused (adopted
by counsel then appearing for the first appellant) the diet of trial was
adjourned to the sitting of the High Court at Edinburgh commencing on 12 May. On 21 May the case called in that
sitting. Counsel for the second appellant
and the fourth accused each sought adjournment of the trial. Counsel for the first accused and for the
first appellant did not object to an adjournment. The case was further adjourned to the sitting
at Edinburgh commencing on 23
June 2003. On 26 June the case called in that
sitting. The accused Tarbett and Getty
and the first appellant tendered pleas of not guilty to the charges. Counsel for the second appellant advised the
court that, for reasons into which he was not prepared to go, he along with his
instructing solicitor was withdrawing from acting. The second appellant intimated that he wished
to secure the services of another counsel and agent. The court adjourned the trial to a later date
in the sitting. On 1 July the case
called again. Counsel then appearing for
the second appellant advised the court that he had only recently been
instructed and that, having previously acted for the accused Tarbett, he was
unable to act for the second appellant.
There were also difficulties about the absence of appearance by counsel
for the accused Tarbett. The court
adjourned the case until later that day.
It was called several times in the course of that day. At the last calling (at 4 p.m.) new counsel had not yet been
instructed for the second appellant. The
case was adjourned to the following day.
It was then further adjourned until 4 July.
[15] On that day (a
Thursday) the trial commenced, all accused being now represented by counsel and
solicitors. The jury having been
empanelled and the first witness sworn, the case was then adjourned to the
following day. On that day (a Friday)
evidence was led, including evidence from the complainers on charges (5), (8)
and (10). After the close of the
evidence on that day and the retiral of the jury for the weekend, counsel for
the first appellant, Mr Beardmore, addressed the court. The following exchange took place:
"MR. BEARDMORE: I am in an extremely difficult position. I can only apologise to the Court for any
inconvenience that has been caused by Mr. Mason and myself. Certain discussions have been taking place
and I am put in an extremely difficult professional position and I reluctantly,
given the progress of this case, I am under no option other than to seek your
Lordship's leave to withdraw from acting.
LORD HARDIE: Well, is that the only alternative, Mr. Beardmore? I mean, I don't know what discussions have
been taking place and I don't know what change if any in your instructions you
have received and clearly I don't want to know but in some situations it is
possible for counsel to continue acting on the understanding that they don't
put forward a false case and to take an example unconnected with this case,
supposing there was three charges and let's say three charges of housebreaking
and the instructions to begin with were to plead not guilty to all three and
then in the course of the trial the plea altered or the instructions altered to
plead guilty to one of the three, then counsel could continue to act in the
trial, assuming counsel did not seek to cross-examine in relation to the charge
with the plea of guilty for the housebreaking, for the third charge of
housebreaking, but could continue to act in relation to the other two and could
still make submissions to a jury in respect of the charge for which the
instructions had been given to plead on the basis of the sufficiency of the
Crown evidence. I leave that with you.
MR. BEARDMORE: Your Lordship's advice on that was half
anticipated and that obviously causes me a degree of professional consideration
and personal ...
LORD HARDIE: Yes, I just leave it for you. It is really ultimately a matter for you and
your advisers but I may say, Mr. Beardmore, that it may be that your client
will have to represent himself.
MR. BEARDMORE: That has been explained to him, my Lord. I don't think I can particularly advance
anything further. My Lord knows that I
am in a professionally difficult position and I wonder if my Lord would allow
me some time to consult with those across the road?
LORD HARDIE: Yes. Well, I don't want to inquire further. It would be wrong for me to do so so I will
leave it with you. We will adjourn until
Monday at half past nine on the understanding that if you have no option but to
withdraw it may well be that Mr. Mason will just have to carry on the trial as
a party litigant without counsel."
[16] The trial was
then adjourned to Monday 7 July. The
principal witness on charges (6) and (7) (Kostas Gaganis) had not yet given
evidence.
[17] Before the
jury entered court the following exchange took place between counsel for the
first appellant and the trial judge:
"MR. BEARDMORE: My Lord, it is with some regret that I have
to renew the motion that I made to my Lord on Friday which is to withdraw. That goes for myself and those instructing me
unfortunately.
LORD HARDIE: Yes.
Did you take any advice, Mr. Beardmore, as to whether you could
continue?
MR. BEARDMORE: Yes, I did, my Lord. Both I and my solicitor spoke to those
relatively higher up in our respective professions, in my case the Vice Dean,
and the Vice Dean's advice I am quite happy to say in open Court was along
those lines which your Lordship were intimating before.
LORD HARDIE: Yes.
MR. BEARDMORE: But in respect of which I was given certain
further advice which is to protect everybody's interest in the eventuality that
the advice then changed.
LORD HARDIE: Yes.
MR. BEARDMORE: It was the understanding of those instructing
me and myself that over the weekend we had advice and coming into Court this
morning we were continuing to act on the basis of advice we were given, that
advice has been changed.
LORD HARDIE: Presumably, Mr. Beardmore, from my experience
when I was Dean, the advice usually was that counsel could continue in those
situations assuming the client signed an appropriate document and is that the
advice you got on this occasion?
MR. BEARDMORE: Indeed.
LORD HARDIE: And do I take it from what you say to me the
accused is refusing to sign a document?
MR. BEARDMORE: Sorry, my Lord?
LORD HARDIE: Do I take it you are saying that the accused
is refusing to sign a document?
MR. BEARDMORE: He did sign the advice as of this morning but
his instructions have now changed and a renewal on that advice he is not
prepared to sign.
LORD HARDIE: So it is really of his own ...?
MR. BEARDMORE: There is a document available for him to sign
and he is not prepared to sign the document.
LORD HARDIE: Very well.
Advocate Depute, what is your position about witnesses?
THE ADVOCATE DEPUTE: There are six witnesses as presently advised
in the building, my Lord. These include
Nos. 7 and 8. No. 7 being a Greek
witness and ...
LORD HARDIE: Has he travelled from Greece?
THE ADVOCATE DEPUTE: Well, there is uncertainty about that, my
Lord, but I understand he has certainly travelled from abroad to be here
today. It is my information that he was
originally on holiday in France and that information I am having
checked as to his availability within the next week or so.
LORD HARDIE: Well, at least he has travelled from abroad?
THE ADVOCATE DEPUTE: He has come today. There are two interpreters present, one for
the Court and one for the witness and, as I say, my Lord, there are six
witnesses present as presently advised.
LORD HARDIE: Do you have anything to say about this, Mr.
Mayer?
MR. MAYER: No.
LORD HARDIE: Miss Rao?
MISS RAO: No my Lord.
LORD HARDIE: Mr. Saddler?
MR. SADDLER: No, my Lord.
LORD HARDIE: Murray Kenneth Mason, it appears to me that
you have taken steps to ensure that this trial cannot proceed. There are two options available to me. One is to delay the trial by adjourning it
and the consequence of that is that two of your co-accused, Mr. McDougall and
Mr. Getty, would be required to remain in custody for a period of anything up to
three months depending, an additional three months, depending on the
availability of diets. You would also
have the opportunity of retaining the counsel and solicitors who are in the
case but you have taken steps to prevent them from acting in accordance with
their professional obligations and I anticipate that it would not be possible
to continue this trial if you insist upon separate legal representation. What I have got to do is to balance your
interests against the interests of justice of on the one hand two of your
co-accused spending even longer in prison than they already have and the fact
that a witness has travelled from abroad to be here today and is here
today. In the interests of justice I
consider that this trial should proceed and that you have (inaudible) options
still available to you but I will give you half an hour at the most to have
further discussions with your agents and counsel to comply with their
requests. If you don't do that then you
will represent yourself. Do you
understand that?
THE ACCUSED MASON: Yes, your honour.
LORD HARDIE: Very well, we will adjourn for half an hour."
Following an adjournment the following further exchange took
place:
"MR. BEARDMORE: It is with some regret, my Lord, I have been
unable to obtain the written mandate which my client knows he must sign.
LORD HARDIE: Very well.
I will allow you to withdraw from acting and your solicitors. The trial will proceed with the second
accused being unrepresented. Thank you
for your assistance."
Counsel and agent for the first appellant then withdrew.
[18] Immediately
thereafter, as further evidence was about to be led, the first appellant drew
to the trial judge's attention that he had no papers with which to conduct his
defence. The court adjourned for five
minutes during which time certain papers were handed to the first
appellant.
[19] Further
evidence was then led, the first witness being Kostas Gaganis who gave evidence
through an interpreter. He was asked by
the Advocate depute, under reference to certain photographs, about a Peugeot
car which had stopped in the vicinity of where he and his brother were walking
as they made their way home from the Students' Union. In the course of his examination-in-chief the
following exchange took place:
"How many occupants were there? -
Four or five.
And did the vehicle stop? - Yes.
Did anyone get out of the vehicle? -
Yes, as the car stopped someone got out from the right hand side of the
vehicle.
Would that be from the front of the
vehicle? - From the front.
Would that be where the driver sits?
- Yes.
Could you describe the man? - Should
I describe his clothing as well?
Yes? - He was wearing a striped
jumper with white and black stripes.
Yes? - He had quite a square face.
Yes.
Age? - He had a goatee or beard.
About 25.
Thank you. Can you say how tall the man was? - A bit
shorter than I am.
How tall are you? - One metre 90.
Did this man speak? I don't think people know what one metre 90
is unfortunately. One metre 90? - Yes.
Now, did the man speak to anyone? - I
want to clarify that he wasn't one metre 90.
I am one metre 90.
Thank you. Did the man speak to anyone? - He spoke to my
brother.
Did you hear what he said? - He was
next to my brother and he asked him about a club in the area.
Can you remember the name of the
club? - No.
Did Vassilis seem to know where this
club was? - Yes, more or less he did.
What happened next? - At that time
the passenger from the passenger seat next to the driver got out and came and
stood in front of me. At that time the
driver punched my brother.
What happened to your brother? (No
answer).
BY THE COURT: Sorry, you say the driver did what? - The
driver punched him."
[20] The witness
then described the subsequent stages of the assaults upon himself and his
brother. He was later asked by the
Advocate depute whether he recognised in court anyone from the incident he had
described. He then identified the fourth
accused (Getty). Of him he said: "I think he was the driver".
[21] In
cross-examination the first appellant made an attempt to challenge the
witness's account of who had come out of the car. This exchange took place:
"CROSS-EXAMINED BY THE ACCUSED
MASON: See when the driver got out of
the car, could it be possible that the back door of the car was open and you
saw somebody coming out of the back? - No, because at the time when the car
came up to us and stopped in front of us it was the driver that came out of the
car from the right hand side of the vehicle.
Are you sure? - Yes."
A general question was then asked about whether the witness
could see without his glasses, which he had lost in the course of the
incident. The witness again identified
the fourth accused as the driver. The
witness said he was not sure about the identification of any other person. No further questions were asked of him by the
first appellant.
[22] In the course
of cross-examination by counsel for the second appellant the witness confirmed
that the second person had come from "the left hand side" and was the front
passenger. There were two assailants
initially but later there might have been "two or three". Later he spoke of "the rest of the people
coming out of the car". The witness's
evidence was concluded that morning and he was excused from further attendance. Another witness (the girlfriend of Vassilis
Gaganis) then gave evidence. She was not
cross-examined by the first appellant.
Thereafter the court adjourned for lunch.
[23] We were
informed by Mr. Gilfedder for the first appellant that during that adjournment
the first appellant, who was at that stage still on bail, attempted to obtain
fresh legal representation by going to the Parliament House to secure counsel
where he was told, correctly, that he should seek a solicitor. His efforts to obtain a solicitor, we were told, were frustrated by that day
being a public holiday in Edinburgh when the offices of many local
solicitors were closed. The first
appellant arrived back late after the luncheon adjournment. The trial judge intimated that he would deal
with him at the close of business that day.
At the end of that day the Advocate depute, under reference to the first
appellant's late return after the luncheon adjournment, moved the court to
withdraw his bail. The court granted
that motion. The first appellant
remained in custody for the rest of the trial, which was concluded on 30 July.
[24] In the course
of the trial the judge endeavoured to assist the first appellant in the
presentation of his defence. For
example, when it was proposed to put a prior statement to a witness, the judge
explained to the second appellant the legal position as to the use of such a
statement; he further arranged, through
his clerk, for the first appellant to receive advice from a solicitor on certain
procedural matters, including in particular the making of submission of no case
to answer (which submission, when made, was in part successful), the giving of
evidence on his own behalf, and addressing the jury; arrangements were also made for the first
appellant to have an opportunity to peruse a textbook which gave some guidance
on jury speeches; concerns expressed by
the first appellant about the playing of a video tape and about the playing,
unedited, of another tape were addressed;
the trial judge assisted the first appellant when an issue arose about
the parties' entering into a joint minute;
arrangements were made to ensure that the witnesses whom the first
appellant had indicated he wished to call were available; when, the fourth accused (Getty) gave
evidence of matters adverse to the first appellant which had not been put by Getty's
counsel to the first appellant when the latter gave evidence, the trial judge
afforded to the first appellant the opportunity to return to the witness box,
which offer he declined.
[25] One other
procedural question of importance requires to be addressed. The submissions made by Mr. Gilfedder
proceeded on the basis that the question whether the first appellant would
require to represent himself for the principal part of the trial had been
settled finally at the stage when his counsel and agent were granted leave to
withdraw. However, attention was drawn
to the fact that the Book of Adjournal records that, shortly after the court
resumed following the luncheon adjournment on 7 July, the first appellant
"moved for an adjournment in order that he might secure the services of legal
representation. The Court Refused the
motion." Mr. Gilfedder stated that he
had had no prior knowledge of this having occurred. The trial judge's report makes no reference
to it. Indeed that report appears to
proceed on the premise that no such motion was actually made. Referring to the situation as it appeared at
the beginning of that day, the trial judge reports:
" ... I made it clear to the appellant
that in the circumstances of this case, he should sign the necessary mandate to
enable his counsel to comply with his instructions and that failure to do so
would result in his being obliged to conduct the case himself. I would not have allowed an adjournment of
the trial to enable the appellant to instruct new solicitors and counsel,
particularly in view of previous adjournments of the case and of the attendance
from Greece of Kostas Gaganis. It seemed
to me that the interests of justice would be served by the case continuing to a
conclusion and that the solution lay in the hands of the appellant. He would have retained the services of his
solicitor and counsel had he signed the necessary mandate. It did not seem to me to be unreasonable to
expect him to do so. By refusing to do
so the appellant took a conscious decision to dispense with the services of his
legal [advisers] and to conduct the trial himself."
[26] In order to
clarify the position we have listened to the tape recording of the proceedings
immediately after the luncheon adjournment that day. This reveals that, when the court convened
and the trial judge intimated that he would at the end of the day deal with the
first appellant's late attendance, he indicated that he was anxious to make
progress with the trial. The first
appellant then asked for an adjournment with a view to his obtaining legal
representation. The trial judge, without
seeking an explanation for the basis of that request, immediately refused it,
indicating that the matter had been dealt with that morning.
[27] We have not
found it necessary to reconvene the hearing of this appeal with a view to
having further submissions on this matter.
We regard it as sufficiently clear that, by the stage at which counsel
and solicitor for the first appellant had been granted leave to withdraw, the
trial judge had decided finally that the case must proceed with that appellant
unrepresented. He was not to be
persuaded to depart from that decision nor to listen to any submission by the
first appellant for new representation.
One of the issues for this court is whether that final decision, adhered
to when an application for an adjournment was expressly made, rendered the
first appellant's trial unfair.
Submissions for the
first appellant
[28] Mr. Gilfedder
submitted that in the circumstances justice had not been seen to be done, regard
being had in particular to the fact that the first appellant was left without
legal representation and the consequences which flowed from that, including the
consequences for the presentation of his defence. In particular, the judge had closed his mind
to any option other than self-representation if the first appellant would not
sign the mandate necessary to retain his existing counsel and solicitor; the first appellant had not initially had any
papers; the proceedings were then
adjourned for only five minutes to allow him to be given some papers, but the
first appellant was given no proper opportunity to study them; the papers when delivered were incomplete, it
emerging in the course of Kostas Gaganis's evidence that the first appellant
did not have copies of the photographs lodged by the Crown; the first appellant had been remanded in
custody for virtually the whole duration of the trial, for the last week of
which he had been accommodated in the same cell as the second appellant; he had been unable properly to cross-examine
witnesses or to present his defence; he
had not received any legal advice as to whether or not he should give evidence
on his own behalf; he had, through
ignorance of procedure, not taken the objection, which a legal representative
would have taken, to the leading by counsel for the accused Getty of matters
which were not, but which should have been, put to the first appellant. All this was to be seen in the context of a trial
of four accused, all bar the first appellant being legally represented, in
which the accused were incriminating each other and where complicated issues of
fact and of law arose, including matters of identification, of concert, and of
the application of the Moorov
doctrine.
[29] Mr. Gilfedder
put before the court an account of what had happened between the first
appellant and his legal advisers but which was inevitably not disclosed in full
to the trial judge. There had been
discussions between counsel for the first appellant and the Advocate
depute. That had resulted in the
Advocate depute indicating that he was prepared to accept from the first
appellant a plea of guilty to reset on charges (1) and (10), of simple assault
on charge (5) (on the basis that as driver of the motor car in question he was
art and part responsible) and a plea of not guilty otherwise; such acceptance was on the basis that the
first appellant would then give evidence as a Crown witness. The first appellant had originally indicated
his willingness so to plead but on Friday 4 July declined to do so. Thereafter his counsel intimated to the court
the difficulty he had in continuing to act.
The judge's reaction to that intimation has already been narrated. The following day (Saturday) there was a long
consultation between the first appellant and his legal advisers. At that consultation two options were
considered: (1) instructions to accept
the plea which the Advocate depute had indicated was acceptable to the Crown and
(2) instructions that, while pleading not guilty to all charges, the first
appellant authorised his counsel to conduct the case on the basis that he would
not seek positively to advance a case that the first appellant was not guilty
of the two instances of reset and of assault in respect of charge (5) on the
restricted basis mentioned. By the end
of the consultation the first appellant had renewed his instructions that he
would plead guilty in the terms referred to.
He signed a document to that effect.
However, by the Monday he had again changed his mind and withdrew his
instructions. He was offered the
alternative basis upon which his representatives could continue to act for him,
but refused to sign the relative document.
Mr. Gilfedder submitted that his refusal to do so was because he
was no longer able to accept the advice he had been given that, if he had - as
he maintained - remained in the car, he could be guilty of charge (5). However that may be, other factors which may
have influenced him were apprehension that, if he were convicted to any extent,
he might face a prison sentence (a prospect which his advisers could not
exclude) and an apprehension of giving evidence, which might have involved him
in implicating the second appellant, of whom he may well have been afraid. Mr. Gilfedder prayed in aid a
psychological report subsequently obtained in which the clinical psychologist
had opined that the first appellant
" ... would have had extreme difficulty
above and beyond the average person without legal training in being able to
conduct an adequate defence for himself in a High Court trial."
The author also concluded that the first appellant was
"functioning in the Borderline
Intelligence range for his Verbal Intellectual abilities and in the Average
Intelligence range for his Non-Verbal abilities."
[30] Mr. Gilfedder
challenged the reasoning of the trial judge as recorded in the transcript of
the proceedings set out above in paragraph [17] leading to the conclusion
that the trial must forthwith proceed.
The giving of an opportunity to the first appellant to obtain
alternative legal advice would not necessarily have resulted in the co-accused
having to spend further months on remand awaiting trial. An adjournment of 24, or at most 48, hours
would have been possible and would have been fair to the first appellant. Reference was made to Venters v HM Advocate
1999 SCCR 441. No enquiry had been made
as to whether the Greek witness could still be available after an adjournment
of a day or so. The trial judge did not
have a sufficient basis on which to face the first appellant with the stark
alternatives of agreeing to his defence being conducted on a restricted basis
and of conducting the defence himself.
The inference that the first appellant was unreasonably obstructing the
due progress of the trial was unjustified.
[31] Further, the
fairness of the trial had been prejudiced by the Crown's failure to disclose a
prior police statement by the witness Kostas Gaganis of which good use might
have been made to challenge that witness's evidence (1) that it was the driver
(rather than the front seat passenger) who had delivered the initial blow and
(2) that more than one person had punched and kicked his brother. Reference was made to Sinclair v HM Advocate
2005 SC (PC) 28 and Gair v HM Advocate 2006 SCCR 419. Although the witness Gaganis had spoken of
the driver as the initial assailant, he had identified the accused Getty as
that person. He had also identified
Getty, but not the first appellant, at an earlier identification parade; this had not effectively been brought out in
evidence. Counsel for Getty had not, in
cross-examining Gaganis, suggested that the witness had misidentified the
driver but had relied on the indisputable evidence that the driver was the
first appellant. A legal representative
acting for the first appellant would have highlighted the inconsistencies in
Gaganis's testimony with a view to pointing the finger away from the first
appellant. That appellant had not had
the skills to do so. Nor did he have the
skills to direct his own testimony to the true issues in the trial. In so far as charges (6) and (7) were
directed against the first appellant, the evidence of Gaganis had been crucial
(cf. Kelly v HM Advocate 2006 SCCR 9).
The trial of the first appellant had been unfair and there had been a
miscarriage of justice.
Response by the Crown
[32] The Advocate
depute submitted that it did not follow from the fact that the first appellant
had represented himself that he had not had a fair trial or that the trial
judge's action had been oppressive.
There was no absolute right to legal representation (Venters v HM Advocate, especially per the Lord Justice General (Cullen) at
page 447B-C). According to the minutes
the first appellant had made an application for an adjournment to seek new
legal representation and that application had been refused; that was the exercise of a discretion which
ought not to be lightly interfered with.
Venters had been decided on
its own facts and turned upon an interpretation of the dialogue between the
trial judge and the accused. All that
the first appellant, after repeated vacillation, had been required to do, was
to sign a mandate clarifying his instructions.
It was clear that his counsel and solicitor had gone to considerable
lengths to explain matters to him. There
was no basis for supposing that he did not understand those explanations. To refuse in the circumstances to sign the
mandate could be described as being deliberately obstructive. The trial judge was entitled to take into
account the interests of the co-accused, who were in custody, and of the public
interest in progressing the trial. The
Crown accepted that the police statement of Gaganis should have been disclosed
to the defence (although the trial Advocate depute had not had a copy of
it); but its non-disclosure had not
resulted in a miscarriage of justice or an unfair trial (Gair v HM Advocate,
especially at para. [32]). The statement
had been given at the hospital some twelve hours after the incident by a person
who spoke some English but who was not fluent in that language. Both in his statement and in his evidence the
witness had spoken of the assailants being the driver and the front seat
passenger. It was plainly a concerted
attack by these two persons; the first
appellant was clearly the driver. The
statement was not inconsistent with the witness's brother having been struck
repeatedly. The non-disclosure of the
statement had not caused any hindrance to the presentation of the first
appellant's defence. The trial judge had
assisted the first appellant, who had been provided with all necessary
materials. The trial had not been
unfair.
Discussion of first
appellant's appeal
[33] It is plain
that, from at least the close of the proceedings on Friday 4 July, the judge was
understandably anxious that the progress of the trial should not be impeded by
difficulties about the legal representation of the first appellant. That anxiety has to be seen against the
background of previous procedure. The
case had twice been adjourned to later sittings of the court. Progress in the current sitting had been
delayed by several days as a result of the parting of the second appellant from
his original legal representatives.
Difficulties were also occasioned by the failure of counsel for the
accused Tarbett timeously to attend. The
trial had ultimately begun on Thursday 3 July. Certain evidence had been led on the
following day, including evidence from the complainers on charges (5), (8) and
(10). When counsel had thereafter
indicated his professional difficulties, the judge had declined at that stage
to allow him and his solicitor to withdraw, suggesting that there might be an
alternative to that course. He adjourned
the trial until the Monday on the understanding:
"that if [counsel had] no option but
to withdraw it may well be that Mr. Mason will just have to carry on the trial
as a party litigant without counsel."
The possibility that the appellant might put forward a
reasoned application for a short adjournment to obtain alternative
representation at that stage was not referred to. When, on Monday 7 July, counsel for the first
appellant intimated that he would require to renew his application for leave to
withdraw and that application was granted, the only alternative to self-representation
by the first appellant apparently considered by the trial judge was desertion
of the trial. He gives as one of the
factors relied on for his decision the circumstance that two co-accused would
require to remain in custody "for ... an additional three months, depending on
the availability of diets". He had not
heard, nor invited, any submission for adjournment of the trial for a shorter
period (say, 24 or 48 hours) to allow the first appellant to seek alternative
representation. When an attempt was made
by the first appellant after the luncheon adjournment on the Monday to obtain
an adjournment to seek such representation, it was immediately refused on the
basis that the matter had already been decided.
[34] An accused has
no absolute right to legal representation and a decision by a trial judge to
grant or refuse an adjournment to seek it involves an exercise of discretion
with which an appeal court will not readily intervene (Venters v HM Advocate at
page 447B-C). But here, as in Venters, the trial judge neither invited
nor considered any grounds for a short adjournment. Such an adjournment need not have involved
the continued detention of co-accused for a substantial period; and while inconvenience would no doubt have
been involved (including to the witness who had travelled from abroad and to
the interpreters) that inconvenience required to be balanced against the real
disadvantage which the first appellant was likely to suffer if he had to
conduct his own defence on multiple charges in a case where there were three
other accused, all legally represented, and all blaming each other and the
first appellant. Inevitably, the judge
could not seek from the first appellant's counsel detailed information as to
what had passed between him and his client but, on such information as he had,
he told the first appellant that, unless he agreed to sign the document
authorising his counsel to defend him on a restricted basis, he would require
to represent himself. He denied to him
the opportunity to ask for further representation. Justice was not seen to be done (Venters v HM Advocate at page 447C-D;
see also Bullock v HM Advocate 1999 SCCR 492). Although it seems plain from his opening
remarks to the first appellant on Monday 7 July, and from his reports to
this court (in particular the second supplementary report of 22 December
2005), that the trial judge formed the view that the first appellant was being
deliberately obstructive, indeed that he had "taken steps to ensure that this
trial cannot proceed", we consider that there was no sufficient basis in the
necessarily limited information he had received for that conclusion. It is perhaps enough to say that, if the
explanation of what had taken place was as Mr Gilfedder advised us it was,
there would have been no proper basis for such a conclusion.
[35] We would add
the observation that the restricted basis upon which counsel was prepared to
conduct the defence was not without its difficulties. It involved an acceptance by the first
appellant that his legal representatives would not, as respects charge 5,
advance a defence on his behalf which would suggest that he was not guilty, on
an art and part basis, of assault by driving the perpetrators to the scene of
the crime. However, that acceptance had,
on the face of it, inevitable consequences for the defence of the first
appellant on the other charges which he faced and would, we think, have impeded
counsel in resisting those charges, as participation in the assaults in the
capacity of driver had been accepted - or at least could not be challenged by
counsel, given the restricted mandate.
All of this was, of course, unknown to the trial judge, but it
exemplifies the possible danger of assuming that restricted instructions,
consequent upon informal agreement to a possible plea, provide a defined basis
upon which a fair trial can properly be conducted.
[36] What we have
said should not be taken as discouraging judges from taking all reasonable
steps to expedite the progress of trials - including in appropriate
circumstances encouraging accused persons to remain with their existing counsel
and solicitors. Where, however, that is
not achieved, an accused must generally be given a proper opportunity of
applying for an adjournment to obtain fresh representation, which application
will fall to be decided on its merits.
[37] It may be that
our conclusion that justice was not seen to be done has the inevitable
consequence that the first appellant's conviction must be quashed. We reserve our opinion on that matter. However we are, in any event, satisfied that
in the whole circumstances there was in his case a miscarriage of justice. There can be little doubt that, despite the
careful steps taken by the trial judge to assist the first appellant and to see
that he had assistance on certain procedural matters, his defence was not as
well presented as one would expect it to have been had he been legally
represented. To take but one example,
there was undoubtedly a difficulty for the Crown about the crucial evidence of
the witness Gaganis as to who had emerged from the car to perpetrate the
assault upon him and his brother. He
spoke of one of these persons being the driver (who on the basis of other
evidence, including his own, was the first appellant) but at the same time made
a dock identification of that person as being the fourth accused, Getty, who,
on other evidence had been sitting in the back of the car. He had likewise at an identification parade
picked out Getty but not the first appellant as an assailant. Getty's counsel was able to exploit that
contradiction and secured the acquittal of his client. The appellant received the case papers on the
morning when Gaganis gave evidence and with little, if any, opportunity to
study and prepare his defence.
Unsurprisingly in these circumstances, he did not put to Gaganis that it
was Getty and not he whom he had identified at the identification parade. The case otherwise gave rise to complexities
including complexities in relation to concert and to the Moorov doctrine, with which an unrepresented person would be
expected to have serious difficulties in coping. In all the circumstances his appeal must be
allowed.
[38] It is
unnecessary in these circumstances to express a view as to the consequences of
the non-disclosure of the prior statement by the witness Gaganis. Had that been disclosed to the first
appellant as an unrepresented accused, it is doubtful whether he would have
been able to make effective use of it.
Had he been legally represented, the position might well have been
otherwise. For example, in that
statement Gaganis had described not only the appearance of the front seat
passenger and of the driver but had also given a broad description of their
respective clothing. He had described
the former as wearing a "white jumper with two horizontal thick stripes on the
front" and the latter as wearing "possibly a brown jumper". But in evidence (page 139) it was the driver
whom he described as wearing "a striped jumper with white and black
stripes". While failure to disclose a
prior statement does not of itself constitute a miscarriage of justice, the
possibility that the jury might, in the case of the first appellant, have
reached a different verdict if the statement by this crucial witness had been
disclosed is "real and certainly cannot be excluded" (Gair v HM Advocate, at
para. [39]).
Disposal
[39] In all the circumstances and for the
reasons given above we shall allow the first appellant's appeal to the extent
of setting aside the verdict of the trial court and continue his case with a
view to the Crown addressing us on further procedure. We shall refuse the second appellant's appeal
against conviction and in his case affirm the verdict of the trial court. His appeal will be continued for
consideration of his appeal against sentence.
