Scottish High Court of Justiciary Decisons

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Cite as: 2008 SCCR 857, [2008] ScotHC HCJAC_52, [2008] HCJAC 52, 2008 SCL 1260, 2008 GWD 32-481

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Wheatley

Lord Mackay of ~~Drumadoon~~Drumadoon

~~Revised by M of D 25 August 2008~~

[2008]HCJAC 52

Appeal No: XC347/04

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL

KEVIN JAMES GIBSON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Shead, Mackenzie; Gillespie MacAndrew

Alt: Ogg, Q.C., A.D.; Crown Agent

25 September 2008

The background circumstances

[1] On 16 April 2004, at the High Court in Edinburgh, the appellant was convicted in respect of charges (1), (2) and (3) of the indictment which he faced, subject to certain deletions and amendments. The terms of those charges, in the form in which the convictions were recorded, were as follows:

"(1) between 13 June 2003 and 15 July 2003, both dates inclusive, at Dunedin Harbour Hostel, 4 Parliament Street, Edinburgh, you did assault Timothy Simon Wallace, born 8 November 1978, late of 192 Gala Park, Galashiels, and did on various occasions repeatedly punch and kick him on the head and body, repeatedly stamp on his head and body, repeatedly strike him with a belt, compress his neck by bodily pressure or other means, throw at him a kettle containing boiling water, all to his severe injury and you did thereafter fail to obtain medical assistance for him and he died as a consequence of said injuries at and you did murder him;

(2) between 14 July and 15 July 2003, both dates inclusive, at Dunedin Harbour Hostel, 4 Parliament Street and elsewhere in Edinburgh, you having committed the crime libelled in charge (1) hereof and being conscious of your guilt in respect thereof did place the body of Timothy Simon Wallace, born 8 November 1978, late of 192 Gala Park, Galashiels, then deceased, into a suitcase weighed down with bricks or similar objects, convey and deposit same in the Water of Leith near Coburg Street Bridge, Edinburgh, or elsewhere in Edinburgh, and all this you did with intent to conceal or destroy evidence in respect of said crime and to avoid detection, arrest and prosecution in respect of said crime and with intent to defeat the ends of justice and you did attempt to defeat the ends of justice; and

(3) on the dates specified in column I of the Schedule attached hereto at the premises specified in column II of the Schedule you did pretend to employees specified in column III of said Schedule that you were Timothy Simon Wallace residing at 192 Gala Park, Galashiels and were entitled to income support in said name, the truth being as you were well aware that you were not said person and were not so entitled, and you did thereby induce said employees to deliver to you in exchange for foils from a benefit book belonging to said Timothy Simon Wallace payment to the value specified in column IV of said Schedule amounting in cumulo to £208.02 and you did thereby obtain £208.02 by fraud."

[2] On 16 April 2004, the trial judge sentenced the appellant in respect of charge (1) to life imprisonment, with a punishment part of 15 years; in respect of charge (2) to imprisonment for 5 years; and in respect of charge (3) to imprisonment for a period of 1 year; said periods of imprisonment were ordered to run concurrently, commencing from the date of their imposition.

[3] On 1 September 2004, the appellant lodged a note of appeal against conviction containing three grounds of appeal. Since, at the outset of the hearing before us, it was indicated on behalf of the appellant that ground 2 was not to be argued, it is necessary only to notice grounds 1 and 3. They are in the following terms:

"1. The appellant appeared on indictment on a murder charge at Edinburgh High Court for trial. He was represented by senior and junior counsel. Evidence was led on behalf of the Crown from a large number of witnesses. On the eleventh day of evidence namely 1 April 2004 senior and junior counsel withdrew from acting as did the agents. New legal representatives were put in place and on 2 April 2004 a motion on behalf of the appellant to desert the indictment pro loco et tempore was refused. The trial was adjourned until 7 April 2004 to allow the appellant's legal representatives to listen to the court tapes of the evidence and to take whatever other steps were necessary to be in a position to represent the appellant for the remainder of the trial.

It is submitted that the court erred in refusing the motion to desert pro loco et tempore. It is submitted that this motion should have been granted allowing the Crown serve (sic) a fresh indictment.

It is submitted that the appellant did not obtain a fair trial. For the trial to continue would involve the appellant's new legal representatives becoming fully informed of what had already taken place. Even if that could be achieved it is submitted that the new legal representatives were denied the opportunity to observe the witnesses who had already given evidence in order to comment on their manner and demeanour in which they gave that evidence to the jury. One of the main issues in this case was the reliability and credibility of some of the civilian Crown witnesses.

In these circumstances it is submitted that there has been a miscarriage of justice.

...

3. It is submitted that the learned trial judge misdirected the jury when directing them on the evidence that they could rely upon to bring back a verdict of guilty of murder. It is submitted that where it is stated at page 22 lines 13-18 inclusive in the judge's charge to the jury that the evidence of the appellant cashing the deceased's benefit book was relevant to the question of who was responsible for killing the deceased and could be taken into account was a material misdirection. It is therefore submitted that there has been a miscarriage of justice."

Submissions of the appellant

[4] At the outset of his submissions, counsel for the appellant indicated that a petition for the recovery of documents and a devolution issue minute were to be lodged in this case, in which the trial had taken place ~~had been determined~~ before the decisions of the Judicial Committee of the Privy Council in Holland v H.M. Advocate 2005 SCCR 417 and Sinclair v H.M. Advocate 2005 SCCR 446 had been issued. It was being alleged that the Crown had failed to fully disclose the witness statements which have been available throughoutin the present case. The implications of those matters could not, at present, be dealt with, since the decision of the Judicial Committee of the Privy Council in McDonald v H.M. Advocate ~~[2007] HCJAC 75~~2008 S.C.C.R. 154, which would bear on these matters, was awaited. Accordingly, while the existing grounds of appeal could be argued and a decision reached on them, the appeal as a whole could not be determined. Counsel also explained that he did not intend to argue ground of appeal 2.

[5] Turning to ground of appeal 1, counsel explained that, on 1 April 2004, senior and junior counsel then acting for the appellant had withdrawn from acting, followed by their instructing solicitors. Thereafter fresh legal representatives commenced acting on behalf of the appellant and, on 2 April 2004, a motion on behalf of the appellant for the desertion of the indictment pro loco et tempore was made. In his report, the trial judge said that he was aware, both from his own experience and that of colleagues, that the practice of dispensing with legal representation after a trial had been underway for some time was becoming more and more frequent. There was perhaps a perception that some advantage might be gained by an accused person from such a manoeuvre. In these circumstances, he took the view that a point of general importance might arise in connection with the foregoing motion. Accordingly, he requested the assistance of two other judges in dealing with the appellant's motion for desertion. Thus, on 2 April 2004 the motion had been heard before the trial judge and the two consulted judges, Lords Johnston and Lord Reed. A transcript of the proceedings on that occasion was available. Counsel went on to refer in detail to the submissions that had been made on that occasion. As appeared from page 12 of the transcript, the Crown had relied upon Venters v H.M. Advocate 1999 S.C.C.R. 441. It was evident from page 13 of the transcript that the Advocate depute had been under a misapprehension as to the factual situation; he had indicated to the court that the then accused had "dispensed with the services of solicitors who have represented him from the time that he was in police custody ... He also dispensed with the services of eminent senior counsel." That was a misapprehension. The fact was that counsel and, after them, the solicitors hitherto acting had withdrawn from acting. That did not reflect a decision by the appellant. The same misapprehension was evident from the observation of the trial judge at page 19 of his report. Thus the context in which the decision on desertion had been taken was "unhappy" because of erroneous perceptions. However, ~~on 2 April 2004~~ the court ~~court~~ ~~then~~ had not made enquiries into the circumstances in which the appellant's original~~then~~ legal advisers had withdrawn from acting.

[6] At this stage in his submissions, counsel for the appellant submitted that the question of the desertion of the trial pro loco et tempore had not been a matter for the exercise of a ~~discretion~~atheir discretion by the larger court. The question was whether the accused could or could not receive a fair trial, the right to which was absolute. It was not correct to suppose that what that court should have been involved in was a balancing exercise. The question truly was whether desertion was necessary to secure a fair trial. The case of Venters v H.M. Advocate was of little assistance, since the facts were rather different from those of the present case. When pressed by this court in relation to the submission which he had just made, that the matter had not been one for the exercise of the court's discretion, and on being referred to the observations to the effect that it was in paragraph 18.21 of Renton & Brown's Criminal Procedure 6th edition, counsel appeared to eschew suggesting that the authorities there relied upon, Hume, ii.276, and Allison, ii.98 and 355, were wrong. Reverting to the transcript of the proceedings on 2 April 2004, counsel referred to the Crown submission that before desertion should be granted there ought to be "further enquiry"; certain of the arguments deployed by the Crown, narrated at page 15 of the transcript, were irrelevant or of limited relevance. It had been wrong for the Crown to argue that the appellant had been seeking to rely upon a situation manufactured by himself. Counsel appeared to acknowledge, however, that the Crown's practical difficulties of remounting the trial were relevant. Nevertheless, if the Crown might have faced difficulties in bringing reluctant witnesses to court, it had to be borne in mind that those witnesses had, in many cases, given their evidence; in those circumstances section 259 of the Criminal Procedure (Scotland) Act 1995 could be relied upon. The Crown had contended that, in the absence of a clear explanation as to why the appellant would not be afforded a fair trial, the court ought to refuse the desertion sought. However, that position did not recognise the difficulty that the appellant's fresh legal advisers had not had the opportunity of observing the demeanour of the witnesses who had given their evidence at the trial.

[7] The decision of the court to refuse desertion was explained at pages 20-21 of the transcript of the proceedings on 2 April 2004 and at page 21 of the trial judge's report. It was evident from the latter document that the court had agreed with the submissions made by the Advocate depute on that occasion. That had involved agreement with the Crown contention that there had been a grave risk that a further trial could simply not be mounted. It was submitted that that was a "forensic overstatement". At this point in the discussion of the appeal, reference was made by the Court to Article 6 of the European Convention on Human Rights and Fundamental Freedoms and the commentary upon it in Renton & Brown's Criminal Procedure Legislation volume II at pages A.1058/22/4.

[8] Counsel went on to rely upon H.M. Advocate v Fleming and Brady 2005 S.C.C.R. 324 at pages 328 and following, particularly paragraph [33]. A trial ought to be deserted if there was a material risk of prejudice to the accused in its continuance. That test had been met in the present case. It might be the case that a trial might require to be deserted, on the basis of information available to the court at the time when the question arose, although, in the end, if that were not done, there might not be a miscarriage of justice. The position was that the threshold for a decision in favour of desertion was not high, as appeared from Gray and O'Rourke v H.M. Advocate 2005 S.C.C.R. 104 at paragraph [4]. Counsel submitted that, in the present case, the trial ought to have been deserted. The prejudice to the appellant had been obvious and "extreme". The appellant's fresh legal advisers had not seen the witnesses give their evidence, which had put them at a serious disadvantage. It was important to recognise that there had been a serious issue as to whether the appellant should be advised to give evidence. The formulation of such advice without an awareness of the demeanour of the witnesses who had given evidence against him would inevitably have been unsatisfactory. The Crown had exaggerated the difficulties of mounting the trial a second time. If the witnesses had been got to court once, they could be got to court again. The issue had not been approached on the right footing. In any event, it might be that the matter should have been approached on the basis of "appearances", that is to say, the impression of the well- informed and fair- minded observer. In this connection reference was made to Bullock v H.M. Advocate 1999 S.C.C.R. 492 and Mason and McDougall v H.M. Advocate (unreported: 27 May 2008). Justice had not been seen to be done in the present case. It had not been a question of balancing interests, but, if it had been, the balance was all in one direction, in favour of the appellant. Counsel attempted at one point to rely upon H.M. Advocate v McGill 1997 S.C.C.R. 230, a case concerned with oppression on the ground of delay. He did not elaborate the contention he was attempting to make, which we did not understand.

[9] The essential submission for the appellant was that the conviction should be set aside because the court's refusal to desert the trial had created actual ~~of the~~ prejudice ~~that had come into being~~ to a fair trial for the appellantt, ~~resulting from the~~ ~~refusal to desert the trial~~. It had been wrong for the court making that decision to rely on all of the points made by the Crown, which were without substantial merit. Further, the court had been misled into approaching the issue in an erroneous manner. A proper approach to the matter would have involved the examination of "appearances". If one looked at the substance of the prejudice involved, it was extreme in the present case.

[10] Counsel then turned to make submissions in support of ground of appeal 3. It was contended that the trial judge had misdirected the jury at page 22, lines 13-18 of his charge in the respect indicated in this ground of appeal. In the circumstances here, the appellant's actions in availing himself of the benefits that belonged to the deceased had no rational connection with the killing. There had been no dispute that the appellant had done what was alleged in charge (3). The issue in relation to the charge of murder had been whether the appellant had been responsible for inflicting the injuries which had proved to be fatal. The fraud alleged in charge (3) had no bearing upon that matter.

The submissions of the Crown

[11] The Advocate depute submitted that the appeal, so far as it was based upon the contention in ground of appeal 1, proceeded upon a fundamental misunderstanding regarding prejudice. Before prejudice was relevant, it had to be prejudice to the fairness of the trial. The solicitor advocate who appeared for the appellant on 2 April 2004 had agreed that what the court was engaged in on that occasion was a discretionary balancing exercise, as appeared from his observations at page 7 of the relevant transcript. It was submitted that there had in fact been no prejudice to a fair trial arising out of the fact that of a successor solicitor advocate had defended the appellant during ~~conducting~~ the remainder of the trial. That solicitor advocateHe had had the opportunity, afforded by the adjournment given by the court, to listen to the court's tapes of the evidence which had been given before he came into the case. That would have gone some way to conveying to him the demeanour displayed by the witnesses who gave that evidence. In any event, the appellant himself had sat through all the stages of the trial and he had been able to observe the demeanour of the witnesses and would have been able to communicate his impressions to his new solicitor advocate. Furthermore, that solicitor advocate had had the opportunity of consulting with the solicitors who had formerly acted for the appellant and his former senior counsel regarding the demeanour of witnesses. In any event, there was no suggestion made in this case that there was some particular witness whose demeanour might be crucial. Counsel for the appellant had not pointed to any such witnesses, nor had he cited any case decided by the European Court of Human Rights in which it was said that a trial could not be fair if a successor counsel had not had the opportunity to have seen the witnesses. In H.M. Advocate v Fleming, at paragraph [33], it was said that a trial judge should desert a trial only if the fairness of the trial had been prejudiced, or if there was at least a material risk that it might have been. That was not the case here. The solicitor advocate who had agreed to represent the appellant, in the event of desertion being refused, had been content to do that. There was no particular difficulty about his giving advice to the appellant as to whether he should give evidence or not. There had been a special defence of incrimination, in consequence of which it was almost inevitable that the appellant would have required to have given evidence. The fact was that no practical prejudice to the fairness of the trial had been identified by counsel for the appellant. In any event, there was a presumption in law that a trial, once commenced, should run to its end, enshrined in section 91 of the 1995 Act. In the whole circumstances, ground of appeal 1 should be rejected.

[12] Turning to ground of appeal 3, the Advocate depute submitted that it possessed no merit. The passage in the charge, which was the focus of criticism, appeared at pages 21 and 22 of the transcript of it. In that passage the trial judge had indicted that evidence relating to one charge might be relevant to more than one charge, which was unexceptionable. At page 22, the trial judge had said that the jury were entitled to use the evidence relating to the disposal of the body, led in support of charge (2) and not disputed, to consider whether or not the appellant had been responsible for the killing, provided that they considered that evidence was relevant to that question. He also directed the jury that the same applied to the evidence of the use of the deceased's benefit book to obtain cash, which was the subject of charge (3). What he said was:

"If you consider that to be relevant to the question of who was responsible for the killing then you may take it into account."

That was beyond criticism. The use of that evidence was left entirely to the jury, if they considered it to be relevant to the question raised by charge (1). This ground of appeal possessed no merit.

The decision

[13] We deal first with the issues raised in ground of appeal 1. In connection with that ground of appeal there was some discussion before us as to what approach ought to have been adopted by the court which dealt with the application for desertion pro loco et tempore on 2 April 2004, consisting of the trial judge and the two consulted judges. Counsel for the appellant vacillated between the contention that the exercise in which they had been engaged was not a discretionary exercise at all, the only criterion being whether the accused could or could not receive a fair trial; and the contention that the appellant's application for desertion pro loco et tempore did involve the exercise of a discretion. In our opinion, it is quite clear that the granting or refusal of a motion to desert a trial diet pro loco et tempore is a matter for the exercise of the discretion of the court. That is amply vouched by what is said in Renton & Brown at paragraph 18.21 and in the authorities there cited. That view is confirmed by what was said in H.M. Advocate v Fleming, at paragraph [33], by Lord Justice Clerk (Gill). There he said:

"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 at 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."

[14] In this case, of course, the court that dealt with the application for desertion on 2 April 2004 exercised their discretion against desertion. However, we ourselves are now involved in the consideration of certain grounds of appeal against the conviction which followed the refusal of desertion pro loco et tempore. That being so, the question for this court now is quite different from that which faced the court on 2 April 2004. We have to determine in this appeal under section 106(3) of the 1995 Act whether a miscarriage of justice has come into being in consequence of the refusal of the application for desertion pro loco et tempore. That is the only question which we have to address. We are not therefore directly involved in a review of their exercise of their discretion.

[15] In the debate before us, counsel for the appellant acknowledged that the question was whether the appellant's trial had been rendered unfair by virtue of the fact that his solicitor advocate, who came to represent him following the withdrawal of his former counsel, had not had the opportunity personally to observe the demeanour of Crown witnesses as they gave their evidence in court prior to his involvement with the case. In approaching this issue, it has to be borne in mind that, following the refusal of the application for desertion, the court afforded the solicitor advocate sufficient time to enable him to acquaint himself with the details of the case and, in particular, to listen to the court tapes of the evidence as it was given. Accordingly, the point raised by counsel for the appellant comes to focus upon whether the fairness of the trial was prejudiced by the fact that the solicitor advocate did not actually see the witnesses giving their evidence. We have come to the conclusion that it was not prejudiced by that circumstance. The appellant's solicitor advocate had the opportunity to consult with the appellant himself, who had, of course, sat throughout the whole trial listening to the witnesses who gave evidence against him and observing their demeanour. Furthermore, the solicitor advocate had the opportunity to consult with the solicitors and counsel who had formerly represented the appellant in the earlier part of the trial. In these circumstances we are not persuaded that there was any significant prejudice to the fairness of the trial involved in the situation described. No authority was cited to us to suggest that a trial could never~~not~~ be fair where, following a change of representation, the succeeding advocate had not had the opportunity to actually to see witnesses give their evidence. We are reinforced in the conclusion which we have reached by the circumstance that it was not said on behalf of the appellant that there was any particular witness whose demeanour was of unusual importance in the evaluation of their evidence. In these circumstances, we do not consider that the refusal of the application for desertion pro loco et tempore has resulted in a miscarriage of justice. We therefore reject this ground of appeal.

[16] Before parting with this aspect of the case, we think it right to observe that, to some extent, we have been discommoded in our consideration of the issues arising out of ground of appeal 1 by the absence of an Opinion of the Court following upon the hearing on 2 April 2004. It is true that each of the three judges involved in that hearing has written a note concerning what occurred and their reasons for the decision which they took. However, we think that it would have been preferable if, following upon that hearing, an Opinion of the Court had been issued explaining the reasons for the decision then taken. That would have conduced to clarity and convenience.

[17] In evaluating ground of appeal 3, we think that it is necessary to notice all of what was said by the trial judge on pages 21 to 22 of the transcript of his charge. The relevant passage begins at line 16 on page 21 and is as follows:

"The next point I wish to make, ladies and gentlemen, is again I am sure just a matter of common sense and it is where there is more than one charge on an indictment you must consider and treat each charge separately. That is to say, there must be sufficient evidence on each charge before you can convict.

Now that does not mean that one piece of evidence may not be relevant to more than one charge, but what you cannot do is to say just because you are satisfied that the accused is guilty of one charge he must be guilty of another. That is just common sense, I am sure you think.

It follows from that in this case that you may use the evidence of the disposal of the body, led in support of charge (2) and not disputed, to consider whether or not the accused was responsible for the killing if you consider that evidence should be relevant to that question. That is a matter for you.

The same applies to the evidence of cashing the now deceased's benefit book which was the subject of charge (3). If you consider that to be relevant to the question of who was responsible for the killing then you may take it into account."

[18] In this passage, the trial judge repeatedly made plain to the jury that, if they considered that evidence relating to one charge might be seen as relevant to another, they were entitled to take that evidence into account in relation to that other charge. What he said was qualified by words to the effect that it was a matter for the jury to consider whether such evidence could be relevant to such a question.

[19] While we recognise that certain charges in an indictment might be so disparate that a reasonable jury could not rationally suppose that evidence relating to one of those charges~~them~~ could ~~not rationally be supposed to~~ be relevant ~~by any reasonable jury~~ to another charge, we do not consider that that is the position~~true~~ in this case. In our opinion the jury were quite entitled to consider the significance of evidence led in relation to charges (2) and (3) in relation to the issues raised by charge (1). In these circumstances, we conclude that what the trial judge said to the jury in relation to these matters did not constitute misdirection. Accordingly, we reject this ground of appeal also.

[20] For the reasons already foreshadowed, we shall not determine the present appeal. We shall adjourn it to a procedural hearing to be held as soon as the decision of the Judicial Committee of the Privy Council in the case of McDonald v H.M. Advocate becomes available.