APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Emslie Lord Philip	[2009] HCJAC 83 Appeal No: XC1131/03 OPINION OF THE COURT delivered by LORD CLARKE in APPEAL by DAVID THOMAS DONNELL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Scott, Q.C., Mitchell; Turnbull McCarron, Glasgow

Respondent: Allan, Q.C. A.D.; Crown Agent

23 October 2009

[1] The appellant was convicted on 15 October 2003 at the High Court, Glasgow of four charges after what the trial Judge, in his report to this Court, described as a lengthy and complex trial, lasting for several weeks. The appellant was tried along with a number of other persons on a single indictment containing eight charges. The appellant was not indicted in respect of the fifth and sixth charges.

[2] The charges directed against the appellant were in the following terms:

"(1) On 12 September 2002 at 19 West Street, Paisley you DAVID THOMAS DONNELL did assault Tracy McGhee, c/o Strathclyde Police, Paisley, detain her against her will, present a handgun at her, force her to drink a quantity of alcohol and consume a quantity of tablets, lock her in a cupboard there and prevent her from leaving said house and you did imprison her there against her will;

(2) Between 1 August 2002 and 9 October 2002, both dates inclusive, at 10 Lomond Crescent, at 38 Waverley Road, both Paisley and elsewhere, you DAVID THOMAS DONNELL were concerned in the supplying of a controlled drug, namely Amphetamine, a class B drug specified in Part II of Schedule 2 to the aftermentioned Act, to another or others, in contravention of Section 4(1) of said Act:

CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b);

(3) On 22 September 2002 at 149 Candren Road, Paisley you DAVID THOMAS DONNELL and JAMES GORDON McKAY CAMPBELL did culpably and recklessly discharge a firearm, namely a shotgun and did discharge said shotgun at the door of the house at 149 Candren Road, Paisley, then occupied by Claire Elizabeth Crichton, Robert McLaughlin Crichton and Robert Pride Gillies, to the danger of their lives;

(4) On 9 October 2002 at Kashmir Avenue, Linwood, you DAVID THOMAS DONNELL, JOHN ADAM, JAMES GORDON McKAY CAMPBELL, COLIN RONALD GARRETT and SHAUN O'NEILL did assault William Fargher, 3 Linclinve Terrace, Candren Road, Linwood and did strike him on the head and thereafter repeatedly discharge a firearm at him to his severe injury whereby he died later the same day within the Royal Alexandra Hospital, Paisley and you did murder him ...

(7) Between 12 September 2002 and 9 October 2002 both dates inclusive, at 19 West Street and 34 Waverley Road, both Paisley and elsewhere in Paisley, you DAVID THOMAS DONNELL did have in your possession a handgun and silencer while you were not the holder of a handgun certificate in force at the time: CONTRARY to the Firearms Act 1968, Section 2(1) as amended; and

(8) Between 22 September 2002 and 9 October 2002 both dates inclusive at 34 Waverley Road, Paisley and elsewhere in Paisley, you DAVID THOMAS DONNELL did have in your possession a shotgun while you were not the holder of a shotgun certificate in force at the time: CONTRARY to the Firearms Act 1968, Section 2(1) as amended."

As recorded in the minute of proceedings, on 26 September 2003, the Advocate-Depute declared the case for the Crown closed and went on to advise the Court that he wished to withdraw the libel in respect of the appellant as regards charges 1 and 2. The trial Judge then proceeded to acquit the appellant on those charges. The appellant was thereafter found guilty by the jury of charges 3 and 4 and charges 7 and 8, subject to certain deletions in the case of charges 7 and 8.

[3] Various grounds of appeal against conviction were subsequently lodged on behalf of the appellant. After sundry procedure in relation thereto, two grounds of appeal were ultimately allowed to be argued before this Court. The first of these, taken short, is in the following terms:

"The complaint is that the Crown placed these charges (charges 1 and 2) or allegations before the jury without leading any evidence of same and indeed without having any intention of doing so."

The second ground of appeal is in the following terms:

"In the course of the trial the Crown led evidence from a witness Samuel Quigg. He was examined by the advocate depute as to his previous convictions. However he was not questioned about a conviction for conspiracy to rob. When cross-examined by senior counsel for the appellant he was asked a question in respect of which he deponed that he and the appellant had been convicted of that charge.

As a consequence a motion was made on the appellant's behalf that the trial diet be deserted pro loco et tempore. That motion was refused.

It is submitted that the trial Judge erred in refusing the motion having regard to the likely prejudicial effect of the revelation of the previous conviction. Such prejudice could not have been dispelled by directions to the jury. That being so the appellant was denied a fair trial."

[4] In opening her submissions, senior counsel for the appellant, Miss Scott, Q.C., advised the Court that both grounds of appeal were concerned with matters of procedural unfairness which had rendered the trial, as a whole, unfair. Nothing, she said, turned on any evidential matter as such. Though the case against the appellant was a circumstantial one, senior counsel said that she had no quarrel with the trial Judge's characterisation of it as a "compelling one". Two matters, however, had arisen procedurally, which had resulted, it was said, in such prejudice to the appellant and the trial being rendered so unfair, as to have necessitated its desertion.

The First ground of appeal

[5] On 11 August 2003, an application was made to the trial Judge, Lord McEwan, on behalf of the appellant that the first two charges on the indictment should be separated from the rest of indictment. This application was resisted by the Crown. After hearing submissions, the trial Judge refused the application being satisfied that what the Advocate-Depute had said pointed to a possible evidential nexus between these two charges and the murder charge, charge 4. In particular, this was because the handgun referred to in charge 1 would be shown to be the same sort of gun as was used in the murder, and that the drug dealing referred to in charge 2 was part of the background and context in which the murder was perpetrated. The Advocate-Depute advised the Court that the complainer in charge 1 was witness to conversations taking place, when she was imprisoned at the address specified in that charge, which related to a plan to carry out the murder. The trial Judge, in refusing the application for separation of charges, stated that he considered that, on the basis of what appeared in the charges themselves and what the Advocate-Depute had said there was a link between charges 1 and 2, on the one hand, and charges 3 and 4 on the other.

[6] In the event, when the trial took place, some weeks later, the Crown did not lead any evidence at all in respect of either charge 1 or charge 2. It was senior counsel for the appellant's understanding of the position that the Advocate-Depute had, before the commencement of the trial, identified a problem with the evidence of the complainer named in charge 1 who was seeking to retract her police statement. The Advocate-Depute made a decision not to commence by leading her as a witness. He did, however, lead evidence in relation to charge 3. The evidence he obtained in relation to charge 3 led the Advocate-Depute, apparently, to consider that he had established a sufficient evidential link between the gun referred to in charge 3 and that referred to in charge 4 to dispense with the need to lead evidence in relation to charge 1. In due course he decided that he did not require evidence in relation to charge 2 for the purposes of establishing charge 4. Senior counsel for the appellant accepted that, in proceeding on that basis, the Advocate-Depute was exercising a legitimate discretion and that there was no question of bad faith on his part. Nevertheless, it was contended that if an exercise of a legitimate discretion by the Crown resulted in material prejudice to an accused, in the course of a trial, then the Court might have to intervene to reduce or eliminate that prejudice. The Advocate-Depute, in the present case, took no steps himself to deal with the matter. The prejudice complained of was that throughout the trial the allegations laid against the appellant in charges 1 and 2 remained on the indictment which was before the jury. The Advocate-Depute, for example, took no step, once he had decided what his position was with regard to charges 1 and 2, to have a fresh indictment printed with charges 1 and 2 omitted.

[7] A motion was made on behalf of the appellant to the trial Judge that the trial diet should be deserted pro loco et tempore. This motion was refused by the trial Judge and in doing so he indicated, it seems, that the matter complained of could be sufficiently addressed by an appropriate direction by him to the jury. He himself acquitted the appellant of charges 1 and 2 in the presence of the jury.

[8] In the event, when he came to charge the jury at the end of the trial, the trial Judge gave (at pages 5 to 6 of his charge) the following direction relating to the issue that had arisen in respect of charges 1 and 2:

"Because you see, when this case began long ago you had charges 1 and 2 in front of you. No doubt they are still in front of you, although deleted on my instruction, but you will remember that no evidence was led about them and accordingly following the law, I acquitted Donnell of these two charges and they are out of the case. But the fact that they were there in the first place and that they were read out to you against him in an indictment in which then four others, now three others, remain, is a matter of great seriousness. And if, because of that, Ladies and Gentlemen, you think that all or any of the accused have not had a fair trial, then you would be entitled, if you thought it right, to acquit him - all of them, if you thought it right - on that ground alone, before we get to any legal rules, framework or anything else. If you think they have been prejudiced in that their fair trial (sic.) then you would be entitled to take that view. You are not bound to. You are entitled to."

There were, it was submitted by senior counsel for the appellant, two problems with that direction. In the first place it contained within it an abdication by the trial Judge of his duty to determine whether the trial had been conducted fairly or unfairly in the light of what had occurred. That was not the function of the jury. Secondly, the Judge by using the words he did significantly increased the prejudice arising from the content of charges 1 and 2. The words referred to were "the fact that they were there in the first place ... is a matter of great seriousness". By using those words the trial Judge had, it was contended, undone any good he had attempted to achieve by telling the jury that the charges "were out of the case". He left matters on the footing that, on retiring to the jury room, the jury's attention might still be directed to charges 1 and 2.

[9] In discussion with the Court, senior counsel for the appellant accepted that, generally speaking, the starting point was that in the public interest that all charges outstanding against an accused should be brought together in a single indictment: see e.g Hume II, 175-176. Furthermore, it was accepted that, at the time the application for separation of the charges had been refused, the Crown had had a legitimate basis for seeking to have all the charges taken together. The complaint, in the present case, made on behalf of the appellant was directed at the way the Crown had proceeded, after the commencement of the trial, in relation to its decision that no evidence was to be led in relation to charges 1 and 2 and the resultant prejudice to the appellant. It had to be recognised that the Crown might act within its discretion but, in doing so, might, nevertheless, cause such prejudice to the appellant that that prejudice would require to be addressed and remedied by the Court. Reference was made to the case of Cordiner v HMA 1978 JC 64. In the present case, it was submitted, the prejudice to the appellant was such that only desertion of the trial would have been sufficient to cure it. Senior counsel for the appellant emphasised that the prejudice to the appellant in this respect was compounded by what happened in relation to the questioning of the witness Quigg which is the subject matter of the second ground of appeal.

Second ground of appeal

[10] Samuel Quigg, who, apparently, was the intended target of the murder which took place, was led as a witness by the Crown. There was apparently evidence at the trial, referred to by the Judge in his report, of bad blood having existed between Quigg and the appellant. In cross-examination by the appellant's counsel at the trial the witness said that this was not really so and that he himself was a respectable businessman. The Advocate-Depute in his re-examination of this witness brought out that he had a number of convictions. The Advocate-Depute did not, however, elicit from the witness that he and the appellant had been convicted together in 1988 of conspiracy to commit robbery. In further cross-examination of Mr Quigg, by counsel for the appellant, the following exchange took place:

"Q - Just so, Mr Quigg, we are entirely accurate about your previous convictions that the Depute has brought out before us today, they relate to a number of appearances starting in 1981 and ending in 1983. Is that correct?

A - Yes.

Q - And I think that there are eleven separate appearances in Court. Is that correct?

A - Yes.

Q - Including an appearance in 1988 on indictment for conspiracy to commit robbery. Is that right?

A - Yes, me and Mr Donnell."

It should be noted that this exchange took place on 5 September 2003, the trial ending on 15 October 2003. As a result of the last answer given by the witness Quigg, counsel for the appellant moved the Court to desert the trial. That application was refused, the trial judge taking the view that any problem caused due to the content of the answer could be addressed by him giving an appropriate direction to the jury.

[11] Senior counsel for the appellant, before this Court, argued that the trial Judge had erred in this respect. She was, however, at pains to inform the Court that she was not advancing her submissions, in this chapter of the case, on the basis of any criticism, express, or implied, of the conduct of counsel for the appellant at the trial. Moreover, she fully accepted that the problem which had arisen did so through no fault on the part of the Crown. No one had "engineered" the situation whereby Mr Quigg gave the answer he did. The concern was not the cause of the answer being given but its effect on the fairness of the trial. She accepted that the answer itself did not in fact refer to a previous conviction but she stressed that it came about clearly in the context of references to the witness's record of previous convictions. The prejudice to the appellant was that the answer linked the appellant to the witness Quigg who, other evidence established, was of bad character. There was a background of association between the witness and the appellant, and the answer brought out a picture of thieves having fallen out.

[12] The trial Judge gave a direction to the jury regarding what had happened immediately after he had refused the motion to desert and the jury had been reconvened. It was in the following terms:

"I direct you specifically that in respect of the answer given by the witness Quigg at the very end of the evidence on Friday when he was asked about something that he had been involved in from 1988, the answer he gave involved the first accused. You must wholly ignore that - you must ignore it completely, dismiss it from your minds and forget about it as if it had never happened because anything in the alleged past of the first accused is utterly irrelevant to this case. Now let me reinforce that. Whatever it was is 15 years ago and what may have happened elsewhere has got nothing to do with this trial. It is certainly not relevant against Donnell and the more so, it is certainly not relevant against any of the other four on trial and it must play no part whatever in your consideration of the evidence in this case because it is the evidence in this case only that you the jury are to be concerned with and accordingly, I direct you to disregard it, ignore it and put it out of your minds."

As regards that direction it was senior counsel's position that, even if it might have been appropriate and sufficient in another case, it did not go far enough in this case, partly because of the prejudice already caused by charges 1 and 2 having been left before the jury until the end of the Crown case. Counsel referred to the statutory prohibition on the Crown laying before the jury previous convictions of the accused, and making any reference to them in the presence of the jury in the course of the trial, which is now to be found in Section 101 of the Criminal Procedure (Scotland) Act 1995. In cases, and this was not one of them, where there has been a breach of the statutory prohibition the question as to whether any such breach might involve a miscarriage of justice could, it was submitted, turn on the materiality of the disclosure involved. Reference was made to Platt v HMA 2000 JC 468. What had occurred in that case was that a Crown witness stated in evidence-in-chief that the panel, who was charged with murder, had said that he had committed murder "again". The statement, be it noted, did not involve any breach of the statutory provision, and it was accepted that the Crown could not have anticipated any reference to a previous murder having been committed. The trial Judge had refused a motion made on behalf of the accused that the trial should be deserted. This Court, while accepting that such matters lay within the discretion of the trial Judge, reached the view that the Judge in the case in question had applied his discretion on a misconceived basis and that it was open for this Court to consider the question for itself. In the circumstances of the case the Court took the view that the trial Judge should have deserted the diet on the basis that evidence suggesting that the accused had admitted to having committed a previous murder was a formidable matter in the context of his trial for murder. In the context of the present case it was submitted, on behalf of the appellant, that the answer given by the witness Quigg was also a formidable matter which should have inevitably led to the desertion of the trial in a proper exercise of the trial Judge's discretion.

[13] In conclusion senior counsel for the appellant drew our attention to what was said by Lord Bingham of Cornhill in Randall v R (Cayman Islands) (2002) UKPC19 at para. 28 in relation to the concept of the right to a fair trial,:

"But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate Court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial."

In the present case the trial of the appellant had been unfair due to the cumulative effect of the matters made the subject the two grounds of appeal. The conviction should be quashed.

The Crown's Reply

[14] In reply the Advocate-Depute confirmed that the approach adopted by the Advocate-Depute at trial was as senior counsel for the appellant had suggested. There had been a considered view taken by the prosecutor that the matters specified in charges 1 and 2 should be included in the indictment to give the context of the murder and to provide evidential links regarding the time, place and circumstances of the murder. That was done, as senior counsel for the appellant accepted, in good faith. The decision to resist the motion for separation of charges and subsequent decisions were all taken in good faith by the Advocate-Depute and in a proper exercise of the Crown's discretion in such matters. Ultimately, too, it was a matter for the discretion and the judgment of the trial Advocate-Depute as to which evidence he would lead, as the trial unfolded, having regard to his public duty.

[15] The Advocate-Depute then proceeded to explain that the trial Advocate-Depute discovered shortly before the commencement of the trial that the complainer referred to in charge 1, who was also a witness to the matters referred to in charge 2, was seeking to depart from her statements. Without her evidence there was no corroboration of charges 1 and 2. The trial Advocate-Depute, having become aware of this, decided not to begin the trial by leading a possibly uncooperative witness. The significance of charges 1 and 2 was that evidence led in relation to them might provide a link between the firearm used in charge 1 and one used in charge 4, and establish the general background to the murder. The trial Advocate-depute had kept all defence counsel advised that he was deferring seeking to lead evidence in relation to charges 1 and 2 to see what other evidence might emerge. In the event he took the decision that the evidence he had obtained in relation to charge 3 rendered the evidence relating to charges 1 and 2 unnecessary for the purposes of supporting the murder charge. None of what the trial Advocate-depute had done, faced with the situation he found himself in, involved any unfairness to the appellant. The mere placing of charges 1 and 2 before the jury, and not removing them before the end of the Crown case, appeared to be the substance of the appellant's complaint. But regularly, in the course of trials, the Crown would find at the end of its case that it had not been able to lead sufficient evidence to support charges which had been placed before them or would decide, in an exercise of its discretion, that it was not necessary or appropriate to seek a conviction in relation to certain charges. There was nothing unjust or unfair about that. Any effect on the jury's verdict of the first and second charges here having been left standing throughout the Crown's case should be regarded as nil having regard to the clear direction given to them by the trial Judge. While the passage, in that direction, where the Judge appeared to invite general questions of fairness, or otherwise, to be decided by the jury might be seen to be a misdirection in the sense that he was transferring a responsibility to them which was his, it could be seen only as being favourable to the appellant and not as contributing to any miscarriage of justice.

[16] In addressing the second ground of appeal the Advocate-Depute submitted that any prejudice arising from disclosure of the appellant's previous conviction (if that was what had occurred), in the particular circumstances of this case, was dealt with by the trial Judge in a proper exercise of his discretion by giving the direction which he did on the matter. The particular answer was given to counsel for the appellant in reply to a question which did not expressly seek it. It was a matter for the discretion of the trial Judge to decide what to do in the situation which had arisen, having regard to the nature and circumstances of what had occurred, and the possible prejudice it might cause. What the Judge elected to do in this case was entirely appropriate. The terms of the direction he gave were unimpeachable. There was no miscarriage of justice. The appeal should be refused.

Decision

[17] Senior counsel's position, in this appeal, ultimately appeared to the Court to amount to a contention that it was the combined effect of the matters providing the basis of the two separate grounds of appeal which had resulted in the trial being unfair. The implication of that approach might appear to be that, standing alone, those separate matters did not have that effect. Be that as it may, as we have noted, senior counsel for the appellant characterised both grounds of appeal as involving procedural unfairness to the appellant. We are satisfied that there was no such procedural unfairness arising from the factors forming the basis of either chapter of this appeal. As regards the first ground of appeal nothing done on behalf of the Crown could be said, in our judgment, to involve any procedural unfairness. What happened up until the close of the Crown's case was not the subject of any material criticism by senior counsel for the appellant. In particular she accepted that the decision of the Advocate-Depute in the course of a trial, as events unfolded, not to lead evidence in relation to charges 1 and 2 was not to be criticised. She accepted, as already indicated, that the trial Judge's decision not to separate the charges on the application in that respect which was made to him, could not be impugned. Her criticism appeared to be that notwithstanding all of that there was such prejudice to the appellant, arising from the way matters had unfolded, by virtue of the charges having been before the jury, that only a desertion of the trial at the close of the Crown case when it was clear that no evidence was to be laid in support of these charges, could have cured it. But, as we think the appellant's counsel accepted, what occurred in the present case was something that occurs from time to time in trials, where the Crown, for example, is unable to obtain the evidence it had hoped to obtain in respect of certain charges on the indictment. That is simply of the nature of the trial process. Any prejudice that could possibly have arisen in this case to the appellant was not caused by procedural unfairness and was, in our judgement, sufficiently dealt with by the trial Judge in his charge to the jury, though we agree that he may be open to criticism in respect of the passage in the charge which appeared to invite the jury to determine general questions of fairness. In that latter respect he was going beyond what was appropriate. Any departure from what was appropriate in that respect, in our view, however, was, if anything, of potential benefit to the appellant and did not result in any unfairness to him. Far less did it involve any miscarriage of justice. We accordingly, for the foregoing reasons, find no merit in the first ground of appeal.

[18] With regard to the second ground of appeal we are of the view that it, also, is without merit. The offending answer from the witness Quigg came about not through anything done by, or on behalf of, the Crown. It came as a result of a question put by the appellant's own counsel. It therefore involved no breach of the statutory provision regarding previous convictions. We remind ourselves of the full terms of the passage from Lord Bingham's judgment in the case of Randall to which we were referred. Prior to the section founded upon by senior counsel for the appellant, which we have cited above, his Lordship said this:

"While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice".

What happened in the present case as regards to Quigg's reply was not, to use Lord Bingham's language later on in the passage ".... so gross, or so persistent, or so prejudicial, or so irremediable" that the trial has to be condemned as unfair. The trial Judge gave a clear direction to the jury, immediately after they had heard the offending answer, to disregard it completely. The answer was given some weeks before the jury had to consider their verdict. There was no submission, in the present case, to the effect that the trial Judge in deciding to deal with the matter in the way he did had misunderstood the exercise of discretion he was engaged upon, as was the situation in the case of Platt. We are completely satisfied, on the contrary, that in the present case the trial Judge dealt with the matter appropriately having regard to all the circumstances of the case and that no procedural unfairness rendering the trial unfair arose. In Deeney v HMA 1986 SCCR 393 the appellant was tried on indictment. In the course of his examination-in-chief a Crown witness volunteered that the appellant had been on licence on the occasion libelled in the indictment. No deliberate action or carelessness on the part of the prosecutor was suggested. The appellant moved the trial Judge to desert the diet, but the Judge refused to do so. The Judge directed the jury to ignore the evidence referred to. The appellant was convicted and appealed to the High Court. The Court, on appeal, held that in the absence of any deliberate action or carelessness on the part of the prosecutor there had been no breach of the statutory provision and that, in any event, because of the trial Judge's direction to the jury, it was obvious that there had been no miscarriage of justice and the appeal was refused. Lord Justice Clerk Ross at page 394 said:

"There is no suggestion in this case that there was any failure on the part of the presiding Judge or the prosecutor which led to the reference being made to the effect that the appellant was on licence. It was apparently information volunteered by the witness and it is not suggested, as we understand it, that there was any deliberate action on the part of the prosecutor nor any carelessness on his part which led to this evidence being given. That being so, in our opinion it is plain that there was no breach of Section 160(1) of the Act of 1975.

As that is the sole ground put forward for the appeal, that is really all that need be said. However, for the sake of completeness, it should be placed on record that the trial Judge took the very proper step of giving directions to the jury to make it plain to the jury that evidence of this kind should be disregarded, and because of the directions which the trial Judge gave it is obvious, in any event, that there was no miscarriage of justice. In all the circumstances, therefore, this appeal is refused."

We are of the opinion that a similar attitude falls to be applied in relation to the second ground of appeal.

[19] Both grounds of appeal, in our opinion, were examples of the kind of things that may occur, in the course of a criminal trial, particularly a complex and lengthy one as was the trial in the present case, without falling to be stigmatised as being procedurally unfair. Insofar as they might have involved potential for certain prejudice the trial Judge in our opinion, in dealing with matters in the way he did, in his directions, adequately safeguarded the appellant's interests. It follows that we consider that both grounds of appeal against conviction, whether taken independently or cumulatively, fail and the appeal against conviction is refused.

[20] There is also an appeal by the appellant against sentence and we shall continue the case for consideration of that matter at a future hearing.