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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2008] HCJAC
63
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Lord Osborne
Lady Paton
Lord Philip
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Appeal No: XC796/04
OPINION OF THE COURT
delivered by
LORD OSBORNE
in
STEVEN EDWARD NAISMITH
ALLISON
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: Jackson QC; CM Mitchell; Capital Defence; Liam
O'Donnell & Co
Alt: Allan QC, Crown Agent
7 November 2008
The background
circumstances
[1] The appellant
was indicted, along with five other persons, on an indictment containing six
charges, all brought under section 4 (3) (b) of the Misuse of Drugs Act
1971. The appellant pled not guilty and
went to trial at Glasgow High Court between 27 August and 9
September 2004. In due course, the appellant was
convicted on charges (1), (3), (4) and (5).
In each case, the libel had been restricted to a period between 12
November and 3 December 2003.
Each of these charges libelled a contravention of section 4 (3) (b) of
the 1971 Act at specified locations, which were 58 Whitelees Road, Cumbernauld,
81 Victoria Road, Falkirk, Logan, Ayrshire, Old Inn Services, A80, Cumbernauld,
Bo'ness Road, Chapelhall, Airdrie and elsewhere in the United Kingdom. Charge (1) related to cocaine, charge (3) to
nitrazepam, charge (4) to cannabis resin and charge (5) to ecstasy. During the course of the trial, the Crown
withdrew the libel against three of the appellant's co-accused. Another of them pled guilty to a restricted
libel in terms of charge (1) and a co-accused, Barry Smyth, was convicted on
the same charges as the appellant, but over a period between 12 and 21
November 2003.
[2] In a Note of
Appeal under section 109 (1) of the Criminal Procedure (Scotland) Act 1995, the
appellant set forth five grounds of appeal against conviction and a ground of
appeal against sentence. By an
interlocutor of this court, dated 23 February 2007, the court allowed an additional
Note of Appeal to be received containing a single further ground of appeal.
[3] At the outset
of the hearing before us it was indicated that senior counsel for the appellant
did not intend to argue grounds 1 and 4 in the original Note of Appeal. Thus it is unnecessary to consider them
further. The other grounds of appeal,
which he did argue were, as regards the original Note of Appeal, in the
following terms:
"(2) The learned trial judge erred in
refusing a defence submission made at the close of the Crown case that the
evidence introduced by the Crown of a statement made by a deceased witness,
John Stroner and contained within a transcript production 59 should not be
considered by the jury, the interpretation of the material contents of that statement
being significant and central to the Crown case and not supported by other
evidence. In particular, there was no
evidence to support the criminative inference to be drawn from said statement
that the appellant had instructed Stroner to be concerned in the supply of
drugs (see the charge page 22, line 19 to page 29, line 5).
(3) The learned trial judge erred in
refusing a defence submission that there was insufficient evidence in law which
would entitle the jury to convict the accused in respect of any charge of
concern in the supply of controlled drugs.
In particular the Crown failed to adduce any evidence that the appellant
was knowingly concerned in the supply of controlled drugs. ....
(5) In addressing the jury the
learned Advocate depute invited the jury to draw specific inferences from the
plea of guilty tendered in the course of the trial by a co-accused. Said invitation had no basis in law. To be cured the prejudice caused by such
invitation required to be cured by a specific direction. The conditional direction given by the
learned trial judge at page 31, line 17 to page 32, line 5 again taken with the
direction at page 33 lines 1 to 9 is insufficient. In the absence of such direction in the
circumstances of this case the appellant has suffered a miscarriage of
justice."
The sole ground of appeal in the additional Note of Appeal,
to which we have referred, is in the following terms:
"(1) It is respectfully submitted
that there was a failure by the Crown to fully disclose information pertaining
to the deceased witness John Stronach a.k.a. John McLaughlin, in relation to
previous convictions and his outstanding cases at the time of the trial. The evidence of this witness was led at trial
by way of the procedure set out in section 259 (5) of the Criminal Procedure (Scotland) Act 1995 as amended. The evidence of this witness was central to
the Crown case. (see ground 2 of the
existing Note of Appeal). The Crown has
now, after repeated requests, disclosed both the appellants (sic) full schedule of previous
convictions and full details of outstanding charges that the appellant (sic) had at the time of his death. The failure on the part of the Crown to
disclose to the defence the existence of all the previous convictions and
outstanding charges resulted in the defence being unable to prepare and
properly conduct their defence and the result was that the appellant did not
receive a fair trial, as guaranteed by Article 6 (1) of the European Convention
on Human Rights."
Submissions of the appellant
[4] Having
indicated which grounds of appeal were to be argued, senior counsel for the
appellant commenced his submissions with a consideration of ground (3) in the
original Note of Appeal, concerned with sufficiency of evidence. He intended then to proceed to ground (2),
followed by ground (1) in the additional Note of Appeal. That was linked to ground (2) of the original
Note of Appeal. Thereafter he would turn
to ground (5) in that Note.
[5] Dealing
with ground of appeal (3) senior counsel said that the case was purely a
circumstantial one, so far as the appellant was concerned. Despite that, it was contended that there had
been insufficient evidence against the appellant. In developing his argument, senior counsel
drew our attention to what was said at page 10 of the trial judge's report to
this court in relation to this ground.
He said that there was no challenge to the trial judge's legal
approach. There had been clear evidence
of drug trafficking involving the co-accused Barry Smyth, who had been
convicted on the same charges as the appellant, but over a reduced period. The point made was that there was never any
direct linking of the appellant to drugs.
There was no evidence that the appellant was ever in possession of
drugs, nor that he was present when drugs were found. No paraphernalia had been found in the appellant's
house. There was no statement
implicating him, nor was there any forensic evidence to do so. It was accepted that there had been certain
links between the appellant and those who plainly had been involved in drug
trafficking, but they had been insufficient to justify conviction of the
former.
[6] Senior
counsel then proceeded to examine the linkage which the trial judge indicated
had caused him to decide to repel the appellant's submission of no case to
answer on the charges on which he was convicted. The first of these was that on 20 November
2003 the
appellant had visited Smyth's flat and spent some time there. On the following day, the flat had been
searched and a large quantity of controlled drugs found within it. The second alleged linkage related to what
were claims to have been "drug runs".
Cocaine had been found in a car driven by Stronach, now deceased. He had been the driver of a Peugeot car on 24
November 2003
and in a Mercedes car driven by another co-accused on 27
November 2003. The alleged linkage was that the Peugeot car
had been at the appellant's house earlier in the day on 24 November
2003. There was a statement in terms of section 259
of the 1995 Act by Stronach, in which he stated that "Stevie" had sent him to
sell the car in Ayrshire. There had been
a serious issue of credibility in relation to that matter. A further factor relied upon by the Crown had
been that, a few days later, on 27 November 2003, the appellant had been involved in
securing the release of Stronach from custody.
The Crown alleged that the appellant was thus shown to have been linked
to two persons involved in drug running.
Another factor relied upon by the Crown was the circumstances
surrounding the Mercedes car. Two other
co-accused had been in the car, with one as the driver. Controlled drugs had been found in the
car. They had journeyed to Logan near Cumnock. The car had been at the house of the
appellant earlier on the day in question.
Thus it could be seen that the Crown's case against the appellant was
cumulative in nature. It was said that
he had links with three of those persons involved in the drug trafficking. It was submitted that that could not be a
proper basis for guilt under section 4 (3) (b).
The question was whether or not that basis for the Crown's case could be
supplemented by other evidence. One of
the features of that evidence was that the appellant had been associated with a
number of mobile telephones. There was
also evidence concerning letters recovered in the house of the appellant on 3
December 2003. It was submitted that those letters did not
bear the interpretation placed upon them by the police.
[7] If
the Crown was saying that the appellant had been concerned in the supply of
controlled drugs, it was necessary for them to show how he had been
concerned. In that connection reliance
was placed on Kerr v Her Majesty's Advocate 1986 S.C.C.R.
81. There had to be shown to be some
rational involvement, not simply presence or association with proved drug
traffickers.
[8] Senior
counsel then turned to support ground of appeal (2) in the original Note of
Appeal. It was submitted that where an
application was made under section 259 of the 1995 Act and where the
requirements of that provision could be shown to have been satisfied, the judge
had no discretion as to whether the relevant evidence could be led. However, a trial judge had a duty to consider
the fairness of the trial in relation to such evidence. If he considered that the fairness of the
trial would be irretrievably damaged, he might require to desert it. Alternatively, he might require to give
appropriate directions in relation to the evidence concerned. In this connection senior counsel relied upon
Nulty v Her Majesty's Advocate 2003 S.C.C.R. 378, Daly v Her Majesty's Advocate
2003 S.C.C.R. 393, McKenna v Her Majesty's Advocate 2003 S.C.C.R.399
and Campbell v Her Majesty's Advocate 2003 S.C.C.R.
779. Particular reliance was placed on
paragraph [35] of the opinion of the court in Nulty v Her Majesty's Advocate. The submission made on behalf of the
appellant was that the trial judge should have directed the jury that they
should not consider the evidence admitted under section 259. What he had done was to give certain other directions
about it only. The question was whether
the evidence concerned was "decisive" or "of critical importance", in terms of
the authorities relied upon. Those
expressions related to the weight to be given to the evidence in the
circumstances, not the fact that it might be essential for the purposes of
corroboration. Thus, the more important the evidence was, the less likely it
was that it could be used consistently with trial being fair in terms of
Article 6 of the European Convention.
[9] Senior
counsel then turned to consider the evidence involved. It included the statement that Stronach had
been asked to go to Kilmarnock by the appellant. It was
submitted that that was, on any view, important, indeed decisive evidence. Without that evidence, there had not been a
sufficiency against the appellant.
Assuming that submission were wrong, fairness demanded its exclusion
from consideration by the jury. If the
court took the view that there was a sufficiency of evidence, it was that
material that created that situation. It
was the only direct link between the appellant and the drug trafficking
operation involved, as opposed to the persons involved in it. The giving of an instruction by the appellant
to Stronach was highly significant, indeed crucial. In the circumstances, the trial had not been
fair and the resulting convictions ought to be quashed.
[10] Senior
counsel moved on to consider the ground of appeal contained in the additional
Note of Appeal, which related to a Crown failure to disclose information
pertaining to the deceased Stronach. The
Crown conceded that they had not disclosed previous convictions and outstanding
charges relating to him, despite being requested to do so. These convictions were of a serious
nature. Three out of four of them were
for crimes of dishonesty. The first, in
1985 was a conviction under solemn procedure in Paisley Sheriff Court of reset.
The second, in 1987 was a conviction for theft by opening lockfast places under
summary procedure in Glasgow Sheriff Court.
The third was a conviction for assault and robbery in 1997 in the High
Court of Justiciary in Edinburgh and the fourth was a conviction for
assault and breach of the peace in Cumbernauld District Court in 2002. Several cases were outstanding against
Stronach at the time of his death in December 2003. Two of these related to alleged
contraventions of the Misuse of Drugs Act 1971.
Others involved alleged Road Traffic Act offences and theft by
housebreaking. Senior counsel
acknowledged that he could not know precisely what use would have been made of
this material, had it been available at the trial to the appellant's
advisors. However, it could be said that
the previous convictions involving offences of dishonesty would undoubtedly
have been deployed. It could have been
contended upon that basis that Stronach was an out - and - out dishonest
person. It was unfair for Stronach's
evidence to be made use of without disclosure of this material. In this connection, senior counsel relied
upon McClymont v Her Majesty's Advocate 2006 SCCR 348 and Holland v Her
Majesty's Advocate 2005 SCCR 417, particularly what was said at
paragraph [72].
[11] Finally,
senior counsel supported ground of appeal (5) in the original Note of
Appeal. The Advocate depute at the trial
had surprisingly attempted to rely on the plea of guilty by one of the
appellant's co-accused; Barry Smyth had tendered a plea of guilty to charges
(1) and (3), which had not been accepted by the Crown, as appeared from page
133 of the transcript of the proceedings.
Another co-accused James Bruce had had his plea of guilty accepted. The matter had been dealt with by the trial
judge at page 31 of his charge to the jury.
It was accepted that the judge directed the jury that they should not
draw any inference or conclusion from pleas by co-accused. However, senior counsel submitted that what
had occurred was prejudicial to the appellant and that the direction given by
the trial judge had not cured the prejudice thereby caused. For that reason also the appellant's
convictions should be quashed.
Submissions of the Crown
[12] The
Advocate depute moved the court to reject all the grounds of appeal argued,
since no miscarriage of justice had occurred.
He commenced his submissions with a response to ground (3) in the
original Note of Appeal ,which raised the issue of sufficiency of evidence. His
submission was, in short, that, in this circumstantial case, there had been
sufficient material to entitle the jury to reach the verdict which they did, so
far as the appellant was concerned. It
was trite to say that, where there were different strands of evidence relied
upon in a circumstantial case, it was not necessary that each strand should
itself be of an incriminating nature.
The essential point was that, when taken together they required to
create a picture of involvement in the crimes alleged. In this case, the material available created
a picture of involvement on the part of the appellant in a drug trafficking
enterprise. The evidence had placed him
in intimate proximity with those shown to have been directly involved. The jury had been quite entitled to draw the
inference that they did as to his involvement.
Where the trial judge in his report to this court at page 11 set out the
evidence relied upon, the important features were the time of the association
between the appellant and other persons and, particularly, the association with
Barry Smyth. The trip to Logan was particularly important. It was evident from the evidence that the
appellant had been the common factor in the activities of others. It had been contended on the appellant's
behalf that the Crown had to show how the appellant had been concerned in the
supplying of controlled drugs. If that
meant that it was necessary for the Crown to demonstrate precisely the nature
of his involvement, that submission was rejected. The legislation was couched in wide
terms. It was unnecessary for the Crown
to specify, either in the indictment, or in evidence, exactly what function a
person was performing in the business of the supply of controlled drugs. A person might be a facilitator in some
way. His particular role might not be
capable of precise categorisation. The
Crown's submission was that there had been sufficient evidence against the
appellant, leaving out of consideration the statement by the deceased
Stronach. Prominent among that evidence
was the evidence relating to mobile telephones.
There had been evidence from a drugs squad officer that possession of
several mobile telephones was important where a person desired to avoid the
traceability of his communications. The
appellant had possessed four mobile telephones and six S.I.M. cards, some
useable on a pay as you go basis. Calls
made on the latter were untraceable and allowed anonymous communication. There also had to be considered the letters
found in the appellant's house. The jury
were entitled to have regard to the interpretation of those letters given in
evidence by police constables Thompson and Stitt. That interpretation was that the written
material related to unlawful transactions in controlled drugs. That was the case regardless of the truth of
what was said in the letters; it was a legitimate inference that could be drawn
from the form of the letters. They were
comparable to "tick lists", which were commonly employed to prove involvement
in transactions in controlled drugs.
In addition to this evidence,
there had been evidence, not referred to in the trial judge's report showing
that the appellant had been seen driving several difference motor cars on
different occasions. It was submitted
that the frequent use of different cars could give rise to the inference of
involvement in clandestine activity.
That was evidence given by a police officer. In the whole circumstances this ground of
appeal ought to be rejected.
[13] The
Advocate depute turned next to ground of appeal (2) in the original Note of
Appeal. He submitted that the trial
judge had been quite correct as to how he dealt with the matter of the evidence
introduced under section 259 of the 1995 Act.
He agreed with the exposition of the law provided by senior counsel for
the appellant. The difficulty was to
assess the importance of the evidence so introduced. The word "decisive" derived from decisions of
the European Court of Human Rights and had to be approached with caution. The importance of the evidence had to be a
matter of judgment for the trial judge.
If that was so, he must be afforded a reasonable discretion as to how to
deal with such material. There was
plainly a range of possible responses.
The trial judge was under an obligation to admit the statement, but had
to keep the fairness of the trial under constant review following upon
that. He had plainly acted in that way
and had dealt with the matter appropriately by giving the directions that he
did. The trial judge's directions were
to be found between pages 22 and 27 of the transcript of his charge. The Advocate depute submitted that these directions
were accurate and quite adequate to highlight the great care required in
evaluating the evidence of Stronach in the statement spoken to by police
officers. Indeed the jury were invited
to consider specifically whether the statement of Stronach was incredible as
regards many of the matters with which it dealt. The jury had been free to make of the
statement what they would; they were told to be very careful; the dangers
attached to the statement were pointed out.
Looking at the whole circumstances, it could not be said that the trial
had been rendered unfair by this material not having been excluded from the
jury's consideration.
[14] The
Advocate depute went on to make submissions on ground (1) in the additional
Note of Appeal. It was conceded that
disclosure had not been made of Stronach's previous convictions, or outstanding
cases. The Advocate depute said that he
might have made the suggestion that, unless the appellant's legal advisors had
requested the material concerned, it did not require to be disclosed. That was wrong. It was accepted that there was an obligation
to disclose the material regardless of that being requested. Accordingly, the Crown's submission was that
the materiality of the undisclosed information was not such as to prevent or
undermine the defence mounting an attack on the credibility of the maker of the
statement admitted under section 259 of the 1995 Act. It was fair to say that the incredibility of
Stronach was a matter which was not in dispute in any way, with the exception
of that part of the statement which had been relied upon at the trial by the Advocate
depute. Even though much of what
Stronach had said might be thought to be incredible, it did not follow that he
could not tell the truth in relation to that part of the statement. That was so even though he had the
convictions, details of which had now been disclosed. It had been acknowledged that he had told the
police lies in the course of his interview with them. Thus the question had to be asked what could
the defence have said about him that was not already said. As things were, without disclosure timeously,
his credibility was a serious issue in the case. The court should distinguish between this
case, where the propensity for dishonesty was manifest in the evidence and some
other case where a witness occupied no such position; in such a case as that,
previous convictions of crimes of dishonesty could be more significant than
they would have been in this case. Thus
while there may have been a breach of the obligation of disclosure arising out
of Article 6 of the Convention, the fairness of the trial had to be looked at
in the light of the whole circumstances.
Doing that, it was submitted that the trial had been fair.
[15] The
Advocate depute dealt finally with ground of appeal (5) in the original Note of
Appeal. He emphasised that the
submission made by the trial Advocate depute referred to in this ground of
appeal was quite wrong and should never have been made. That state of affairs had been recognised by
the trial judge. In the course of his
general directions, he said that matters of evidence were for the jury. More particularly, in the transcript of his
charge at pages 31 and 32, the trial judge directed the jury that they should
ignore the Advocate depute's contention.
This direction could not have been clearer, although it was brief. It was to be supposed that the jury would
follow the directions given to them in this regard. It could not be said that there had been a
miscarriage of justice on account of some residual effect of the objectionable
passage in the Advocate depute's speech to the jury. In all the circumstances the appeal should be
refused.
The decision
[16] We
deal first with the issue raised in ground of appeal (3) in the original Note
of Appeal, that of sufficiency of evidence.
It is plain from the evidence in the case and it was a matter of
concession that the case against the appellant was a circumstantial one. At page 11 of his report to this court the
trial judge outlines the Crown case against the appellant. He points out that there was evidence of
association on the part of the appellant with persons, places and motor
vehicles which were linked to drugs in large quantities. There was evidence of association between the
appellant and the co-accused Barry Smyth.
Smyth had called at the house of the appellant on his return from Logan on 12 November
2003. On 20 November 2003 the appellant had visited Smyth's
flat and spent some time there. On the
following day the flat was searched and a large quantity of controlled drugs
was found within it. The trips to Logan on 24 and 27 November were
demonstrated to be drug runs. On each
occasion a large consignment of cocaine was found in the car involved. Similar amounts of cocaine were recovered in
the Peugeot car driven by Stronach on 24 November 2003 and in the Mercedes car used by the
co-accused Bolton and Bruce on 27 November. The car driven by Stronach had been parked in
the driveway of the appellant's house earlier in the day on 24 November. On 27 November, the Mercedes which had been
used to transport cocaine from Logan had been at the house of the
appellant earlier in the day.
Furthermore, the appellant had been associated with a significant number
of mobile telephones and SIM cards.
Those circumstances were described as significant in police
evidence. In addition, there was the
evidence relating to the form of the letters recovered in the house of the
appellant on 3 December 2003, as interpreted by Detective
Constables Thompson and Stitt. These
were productions 19, 20, 21 and 22.
Looking at the foregoing material, we have reached the conclusion that
there was sufficient evidence available against the appellant to justify his
conviction on each of the charges (1), (3), (4) and (5). We consider that a corroborated case existed
against the appellant, without the necessity of taking into account the
evidence of the statement given by Stronach, admitted under section 259 of the
1995 Act. In reaching our conclusion we
regard the letters recovered from the appellant's house, to which we have referred,
as of particular significance. The form
of those letters, as explained in police evidence, was redolent of involvement
in drug transactions. Accordingly we
reject this ground of appeal.
[17] Turning
next to ground (2), it is appropriate to note that there was no dispute
regarding the law between senior counsel for the appellant and the Advocate
depute. In Nulty v Her Majesty's
Advocate the Lord Justice Clerk considered the procedural implications of
section 259 of the 1995 Act in paragraphs [35] - [37] of his opinion. In paragraph [35], he recognised that, there
being no discretion under the section in a trial judge to exclude hearsay
evidence that qualified under its terms, there was a continuing duty on the
trial judge to consider carefully the fairness of such evidence as the trial
progressed. In paragraphs [36] and [37],
he considered the various options available to a trial judge ranging from
desertion of the diet to the giving of directions to the jury, either to
disregard the hearsay evidence, or to treat it with caution, having regard to
the dangers inherent in such evidence.
What the trial judge in the present case decided to do was to give
directions to the jury in relation to the hearsay evidence of Stronach, which
are to be found at pages 22 - 27 of the transcript of his charge. What he did therefore was to leave the
evidence admitted under section 259 for the consideration of the jury, subject
to the careful directions which he gave.
The issue in this case appears to us to be whether that decision has led
to a miscarriage of justice in the particular circumstances of the case, taking
the form of an unfair trial.
[18] In
Campbell v Her Majesty's Advocate, detailed consideration was given to the
circumstances in which the placing of hearsay evidence, which could not be
cross-examined before the jury, might lead to an unfair trial and hence a
miscarriage of justice. We consider that
it is pertinent, in the context of this case, to quote what was said in
paragraph [15] of the opinion of the court in that case, delivered by
Lord Hamilton, as he then was.
There he said:
"The general rule under the
Convention is that an accused person should have the opportunity of examining
or having examined witnesses against him.
That rule is not, however, an absolute right. It has been recognised that a fair trial may
take place, notwithstanding that not every witness against the accused has been
made available for questioning. As Miss
Scott drew to our attention, the language used by the European court in
applying Article 6 (3) (d) has varied.
No single formulation has been adopted.
The indications, however, from the most recent cases are that a
violation of the right to a fair trial will or may arise if the conviction has
been based solely or to a decisive degree on statements made by persons whom
the accused has not, at any stage, had the opportunity to examine or have
examined. In Luca v Italy (2001) 36
EHRR 46 a conviction for a drugs offence was based solely on statements made by
a person to the public prosecutor before the trial; neither the accused nor his
lawyer was given an opportunity at any stage of the proceedings to question
that person. In considering whether there had been a violation of Article 6 (1)
and (3) (d) the court at paragraph 40 observed that, in accordance with earlier
authority, there were occasions on which it was necessary in certain
circumstances to refer to depositions made during the investigative stage but
'where a conviction is based solely or to a decisive degree on depositions that
have been made by a person whom the accused has had no opportunity to examine
or to have examined, whether during the investigation or at trial, the rights
of the defence are restricted to an extent that is incompatible with the guarantees
provided by Article 6'. A violation was
found to have occurred in that case.......
[16] Most
of the situations in which it has been held by the court that there had been a
violation of Article 6 (1) and (3) (d) could not arise in Scotland.
Against the requirement for corroboration of all crucial facts, a
conviction could not be based solely on the evidence of a single witness,
whether in primary or secondary form. Violations
of the Convention right have been established where the principal witness
against the accused has not been made available for questioning or, in
circumstances where there have been a number of principal witnesses, where none
of them has been made so available. No
case was cited to us in which a violation was held to have occurred in circumstances
where the accused had had the opportunity to question or have questioned the
complainer or other direct or central witness and other supporting evidence was
in statement form. "To a decisive
extent", as used in the European authorities, appears to be concerned with the
significance of the evidence as a matter of weight. It is not concerned with any rule that a
conviction cannot be based on a single source of evidence. The fact that the hearsay is required to meet
the rule about corroboration does not of itself render that hearsay 'decisive'
in the European sense.
[17]
In these circumstances we are not persuaded that in every case in which
hearsay evidence is a necessary ingredient of the Crown's corroborated proof
there will be a violation of Article 6 (1) and (3) (d)......".
[19] Against
the background of the guidance contained in the passage quoted, it is necessary
to consider whether the convictions recorded against the appellant were based
solely or to a decisive degree on hearsay evidence from a person whom the
appellant had no opportunity to examine or have examined. This plainly involves the assessment of the
significance of the hearsay evidence from Stronach as a matter of weight. In considering ground of appeal (3), we have
already concluded that sufficient evidence was available to support the charges
on which the appellant was convicted without the hearsay evidence from
Stronach. Thus, that evidence was in no
way essential to the Crown case even for the purpose of providing corroboration
of other evidence from witnesses who were examined. Thus, in our opinion, it may be said that the
preponderant evidence in support of the Crown's case came from witnesses other
than Stronach. Looking at that situation
and at the nature of the circumstantial case available against the appellant,
we have reached a conclusion that the Crown's use of that hearsay evidence
associated with the directions given to the jury concerning it by the trial
judge, has not resulted in an unfair trial.
In these circumstances the use of that evidence in the context has not
resulted in a miscarriage of justice. We
reject this ground of appeal.
[20] We
now consider ground of appeal (1) in the additional Note of Appeal, which is
concerned with the failure of the Crown to disclose the previous and
outstanding cases in relation to John Stronach.
It is to be observed from this ground of appeal that the contention that
the appellant's trial was unfair is based upon the failure of the Crown to
disclose fully information pertaining to Stronach's previous convictions and
his outstanding cases at the time of the trial.
We consider that, in this context, a distinction has to be made between
previous convictions and outstanding cases.
While, in appropriate circumstances, the existence of previous
convictions may be of importance in connection with the preparation of a
defence and to the challenge that may be mounted to the credibility of a
witness, we do not consider that the same may be said of outstanding cases. Where an individual is charged with crime, he
or she is presumed to be innocent until proved guilty. If a case is
outstanding, necessarily no verdict has been reached in it. In these circumstances we have insuperable
difficulty in understanding how information relating to those matters could be
properly deployed in the conduct of a defence.
[21] However,
the position is plainly different in relation to previous convictions. In Holland v Her
Majesty's Advocate 2005 SCCR 417 in paragraph [72] Lord Rodger of
Earlsferry made certain observations which are of relevance in the present
context as regards the disclosure of previous convictions. He said:
"Although it is open to the defence
to apply to the court for an order for production, the scheme envisaged by the
Book of Regulations places procurators fiscal and Crown counsel in the
invidious position of having to judge the relevance of previous convictions to
a defence, the lines of which the accused's representatives are generally under
no obligation to reveal. In reality,
however, the scheme is more deeply flawed since it is obvious that a reasonably
competent defence agent or counsel, considering how to approach the examination
or cross-examination of a witness, would wish to know whether the witness had
any previous convictions and, if so, their nature. Indeed it is precisely the kind of thing he
would want to know. What use, if any,
the agent or counsel chooses to make of the information is a matter for him and
he may well not be able to decide until he actually has it. But, at the very least, the information will
help in assessing the strengths and weaknesses of the witness. Therefore, information about the previous
convictions of the witness to be led at the trial 'would be likely to be of
material assistance to the proper preparation or presentation of the accused's
defence'. Under Article 6 (1) the
accused's agents and counsel are accordingly entitled to have that information
disclosed so that they can prepare his defence.
Since in this way both sides will have access to this information at
trial, the accused's right to equality of arms will be respected. The observations to the contrary effect in Her Majesty's Advocate v Ashrif [1988] S.C.C.R. 197 should not be
followed."
[22] On
the basis of these observations, without more, it might be thought that the
failure of the Crown to disclose the previous convictions of Stronach in this
case would have resulted in an unfair trial.
However, before reaching such a conclusion, it is necessary to consider
in more detail the particular circumstances of this case. It is obvious from the observations just
quoted that the importance of the disclosure of previous convictions of a
witness lies in the part that such convictions may have to play in a
consideration of how to approach the examination or cross-examination of the
witness concerned, on the part of defence counsel or agent. However, in this case, by virtue of the fact
that Stronach was not and could not be a witness in the case, on account of his
demise before the trial, there could be no question of his being examined or
cross-examined personally. What was
involved was the presentation of his statement to the police in terms of
section 259 of the 1995 Act. Thus any
convictions that might have been disclosed could not have been used for the
purpose contemplated by Lord Rodger of Earlsferry in the passage quoted.
[23] It
is conceivable perhaps that, faced with that situation, the appellant's
advisors might have sought to prove the existence of the convictions in
question in the course of the trial, with a view to establishing that, on the
basis of them, Stronach had not been an honest person, rather a person with
convictions for crimes of dishonesty.
Plainly they were unable to avail themselves of that option had it
commended itself to them. In considering
whether their being deprived of that option resulted in an unfair trial, it is
important to recognise the status of the evidence from Stronach at the trial. This can be discerned from the supplementary report
furnished by the trial judge on the ground of appeal now under consideration. In it he explains that the evidence of Mr
Stronach constituted one element in the Crown's circumstantial case. In dealing with ground of appeal (2), the
trial judge indicated that he had come to the conclusion that, in the context
of the circumstantial case against the appellant, it could not be said that the
evidence of the taped interview of John Stronach was of such significance as to
be decisive. It was one element in a
body of circumstantial evidence pointing towards the guilt of the
appellant.
[24] It
is helpful to note the trial judge's detailed comments upon the material
derived from Stronach. In his
supplementary report he says this:
"The evidence of Mr Stronach was
contained in Crown production 59 which was the transcript of a taped
interview. Mr Stronach was interviewed
by the police on 25 November 2003.
The interview started at 2.32 am and finished at 3.28 am.
The whole of the tape was played in the course of the evidence of
Detective Constable McFadden on 2 September 2004.
As I noted at page 3 of my principal
report, Crown witness number 4, Duncan Smith, gave evidence that on 24
November 2003
at 12.45 he saw a blue Peugeot 406 motor car, registered number M810 UEW in the
driveway of 58 Whitelees Road, the home of the appellant. This sighting was not part of the
surveillance exercise and was not recorded in the logs. Later that day the same Peugeot was the
subject of surveillance. It was being
driven by John Stronach. At 21.32 Mr
Stronach drove the car to a service station at Kilmarnock where he met a Ford Orion motor car
driven by another man. The two cars were
driven in convoy to the village of Logan near Cumnock. There, in the car park of the Logangate Arms,
the driver of the Orion spoke to Mr Stronach who did not leave his car. Thereafter Mr Stronach drove up to Glasgow and onto the M8 where he was stopped
by police constables Norrie and McDonald at 22.40. Within a Farmfoods bag within the glove compartment
there was a quantity of cocaine worth at least £30,000.
In the course of the taped interview
Mr Stronach said that he had driven to Kilmarnock.
He said that he had been sent by a man called 'Stevie' from Abronhill to
sell the car. He gave a description of
"Stevie". The Crown submitted that the
appellant, whose first name was Steven, lived in Abronhill and fitted the
description given by Mr Stronach. The
Crown relied on this evidence as an element in the case against the appellant,
inviting the jury to reject the evidence that the purpose of the journey was to
sell the car.
In cross-examination of Detective
Constable McFadden, Mr Watson, QC, on behalf of the appellant, examined
production 59 in detail demonstrating that in the course of his interview Mr
Stronach had told many lies. In his speech
to the jury the Advocate depute accepted that Mr Stronach was clearly a
liar. He said that he had lied about his
movements and about his involvement in drugs.
The Advocate depute suggested to the jury that it was easier to accept
those parts of the taped interview which were supported by other acceptable
evidence in the case. He pointed in
particular to the evidence of Detective Sergeant Duncan Smith that the same car
had been parked outside the appellant's house earlier in the day. He suggested that Detective Sergeant Smith,
who had nothing to do with the surveillance operation or Detective Constable
McFadden and had simply been at the house to check the address, was a credible
witness.
The Advocate depute also referred to
the evidence that the appellant had gone on 27 November to the house of Mr Stronach's
girlfriend and collected Mr Stronach's passport. He had then taken it to Airdrie Sheriff Court to assist in the release of Mr
Stronach on bail in relation to the drugs charges relating to the recovery of
drugs in the Peugeot on 24 November.
This, suggested the Advocate depute, would be a spectacular coincidence
if it was not indicative of knowledge on the part of the appellant of Mr
Stronach's involvement with drugs.
Taking into account the analysis of
the interview of Mr Stronach carried out by Mr Watson and the concessions made
as to his credibility by the Advocate depute, the jury would have been most
likely to conclude that Mr Stronach did indeed tell many lies in the course of
the interview. They would, however, have
been entitled to be selective in their view of the evidence of Mr
Stronach. I gave them directions along
those lines on pages 5-6.
I understand that Mr Stronach had a
number of previous convictions (the trial judge then narrates the details of
these convictions). None of these
matters was before the jury. Outstanding
at the time of his death was the petition matter at Airdrie Sheriff Court which featured in the evidence.
In the circumstances outlined above
it is difficult to see how the canvassing of the previous convictions of Mr
Stronach before the jury would have bolstered the already largely successful
attack on his credibility. It also
difficult to see why knowledge of the previous convictions would have
discouraged the jury from being selective in the approach to the contents of
the interview of Mr Stronach."
[25] Against
the background of the trial judge's account of the status of the material
derived from Mr Stronach at the trial, we have not been persuaded that the
failure of the Crown to disclose the previous convictions of Stronach to the
appellant's advisors resulted in an unfair trial and hence a miscarriage of
justice. For these reasons, we reject
this ground of appeal.
[26] We
turn finally to ground of appeal (5) in the original Note of Appeal. It is quite plain that it was wholly
inappropriate for the trial Advocate depute to invite the jury to draw
inferences from any plea of guilty tendered in the course of the trial by a
co-accused of the appellant. We have
difficulty in understanding how it could have been supposed that that was a
proper course to take. That state of
affairs was, however, recognised by the trial judge. He gave the jury specific directions in
relation to it at pages 31 and 32 of the transcript of his charge. There he said this:
"Now, I am going to deal now with a
matter which I think was mentioned by Mr Watson and that is this, that certain
pleas of guilty and not guilty by other accused were accepted by the Crown in
the course of the trial. Now, you should
not draw any inference or conclusion from that in relation to the remaining
accused so if the Crown suggested that the fact that Mr Bruce had pled guilty
including a reference to 58 Whitelees Road and suggested that that was
something that would be taken into account in relation to the first accused, Steven
Allison, that was wrong, you should ignore that suggestion. Equally you should not draw any inference
from the fact that the Crown accepted a not guilty plea from Mr Bolton. You should concentrate on the evidence. Of course, the evidence that was led in
relation to these other accused is available if you think it has a bearing on
the activities and associations of the remaining accused."
The trial judge also went on to give
general directions to the jury to the effect that they had to decide the case
on the basis of the evidence which they had heard. Recognising that any jury is presumed to
follow the directions in law given to it by the presiding judge at a trial, unless
the contrary can be shown, we conclude that there is no merit in this ground of
appeal, which we reject.
[27] In
all these circumstances, we refuse the appeal against conviction. The appellant's appeal against sentence will
require to be heard at a date to be fixed.
