APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Mackay of Drumadoon Lady Cosgrove	[2013] HCJAC 1 Appeal No: XC153/12   OPINION OF THE COURT   delivered by LADY PATON   in   APPEAL AGAINST CONVICTION AND SENTENCE   by   SALVATORE SIVERO   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: D McKenzie; Belmonte & Co

Respondent: Shand QC; Crown Agent

 

23 January 2013

Introduction
[1] The appellant faced two charges of robbery committed on 19 July 2011. There were noticeable similarities between the two incidents. In particular both occurred in the Edinburgh area; both involved a robber with a knife; the complainer in each case was alone in charge of a shop, outwith normal working hours; in each case, money was taken and the knife was left at the premises; one robbery occurred within a few hours of the other.

[2] The appellant's position was that he would plead guilty to charge 1 (the Shell petrol station robbery) as he had been caught on CCTV and the evidence was overwhelming. He wished to go to trial on charge 2 (Mr Aslam's shop). The Crown rejected his plea to charge 1 at a preliminary hearing, and at the trial, led evidence relating to both charges. The jury were thus unaware of the appellant's position until speeches, when defence counsel invited them to convict the appellant of charge 1, but to acquit of charge 2. In his charge, the trial judge directed the jury to convict of charge 1.

[3] Ultimately the jury returned a unanimous verdict of guilty of charge 1, and a majority verdict of guilty of charge 2.

[4] In this appeal, no challenge is made to the unanimous verdict relating to charge 1. There is, however, a challenge to the conviction of charge 2 on the ground that in the course of the evidence there was an inadvertent disclosure of the appellant's previous convictions.

 

Inadvertent disclosure of previous convictions
[5] As the trial judge sets out at pages 6 to 8 of his report, a police officer DC Peter Stark gave evidence about images from some CCTV footage from a Scotmid store (situated near Mr Aslam's shop) which the appellant had visited prior to the robbery of Mr Aslam's shop. DC Stark told the jury that he knew the person shown in certain images. He was "Salvatore Sivero" (the appellant).

[6] As the appellant's counsel explained to this court, DC Stark gave his evidence in the following way. He said that the robberies had occurred on Tuesday 19 July 2011. On Wednesday, the day after the incidents, he had been looking at the police intranet briefing site. He had seen images of a person whom he recognised as the appellant. He was shown the images in court. He indicated to the jury that he recognised "a male known to him as Salvatore Sivero". As the trial judge records in his report, the following exchange then took place:

AD Did you play any other part in this enquiry?

 

DC Eh ... I made some enquiry on the Wednesday with the Edinburgh Prison to find out if, eh, Mr Sivero was in or out of custody and was told that he had been released from custody in 2009.

The trial judge reports that there was a noticeable pause at the start of the answer, before DC Stark resumed speaking and gave his explanation about making the enquiry.

[7] Defence counsel waited for an appropriate break in the evidence, then moved the court to desert the trial pro loco et tempore. The defence position was that the police officer's recognition of the appellant, taken with his evidence that he had, that day, checked with Edinburgh Prison, gave rise to a reasonable inference that the officer had had previous dealings with the appellant, knew that he had received a custodial sentence, and was checking to see whether or not he had been liberated. The fact that he had to phone the prison might also suggest a sentence of some length. The Advocate depute, when responding to the motion to desert, accepted that the police officer's reference to custody implied a previous conviction and might be prejudicial, but contended that any prejudice could be cured by an appropriate direction.

[8] Having considered the submissions, the trial judge gave a ruling inter alia as follows:

"xv. The Advocate Depute stated that she was seeking to take evidence relating to enquiries made by the witness about the Accused's employment, about the Accused going on holiday abroad and to the effect that the witness had passed on information to the Inquiry Team. She said that she did not expect the answer given and she did not seek to elicit evidence about the Accused's release from prison. She had anticipated that the witness would know not to mention the matter of the Accused being released from custody. The Advocate Depute accepted that the reference to custody implied conviction and might be prejudicial: but, she submitted, any prejudice could be cured by an appropriate direction. The Advocate Depute contested the submission made about particular prejudice arising because the same modus was possibly involved.

 

xvi. In reply Counsel for the Accused accepted that the Advocate Depute did not intend to lead the evidence: but, he said, the additional information about the employment and the foreign holiday was hearsay and could not have been properly led anyway. The situation demanded that a tightly framed question be asked. I think Counsel for the Accused implied that the pause at the beginning of the answer was both a warning and an opportunity for the Advocate Depute to intervene, presumably by withdrawing and re-framing the question.

 

xvii. Having reflected on the matter I take the view, first of all, that what happened does not fall within the section 101 prohibition. The case is a narrow one, one of the 'intermediate cases' referred to in Deighan, and I have reached the view on balance. The very proper, if I may say so, acceptance by Counsel for the Accused that the situation was not created intentionally by the Advocate Depute - an impression I shared - means that we are in the territory of possible carelessness. I think what happened is just excusable. The Advocate Depute had already successfully negotiated the highly prejudicial passage earlier in the statement; it was not inappropriate to take the examination further in order, presumably, to make the link with the Inquiry Team so that the Jury would have a narrative of how the investigation had led to the Accused; and, though the question might well have been more tightly framed, it was not unreasonable for the Advocate Depute to assume in the circumstances that the experienced police officer who was giving evidence would avoid the reference to the Accused having been in custody.

 

xviii. Secondly, I take the view that the matter can appropriately be dealt with by a direction and that a direction will give assurance of a fair trial. I am not persuaded by the point made by Counsel for the Accused about the modus operandi. A significant difficulty would have arisen if the witness had given evidence along the lines of the highly prejudicial passage earlier in the statement which does refer to an actual previous conviction for analogous matters as well as a modus operandi similar to that apparently used in the attacks which are the subject of the present charges.

 

xix. I think the Crown must take account both of the inherent risk which arises when reference, express or implied, is made to previous convictions and also of the added risk, in the computer age, that Jurors may be prompted to search the internet for details. Clearly, in the present case, if the Jury were to access information on the internet about the previous conviction and if that information were to disclose the similar modus operandi referred to in the police officer's statement, there would be an issue of significant prejudice. The Court may not be particularly receptive to pleas of prejudice from individuals who complain that the fount of justice has been polluted by their own notoriety [cf. Sinclair v HM Advocate 2008 SLT 189]: but it could be a different matter if the Crown were to contribute to the situation by giving the Jury a pointer."

 

[9] In his charge, the judge directed the jury as follows:

"Before coming to the generalities, I want to give you one specific direction about a matter that has arisen in this case. During the ... advocate depute's examination of Detective Constable Peter Stark, quite a short witness, who identified the accused from video stills, you may have noticed a reference to enquiries being made at Edinburgh Prison.

 

Well I've looked into this matter with the assistance of counsel, and I am satisfied about two things. First of all, the evidence in question emerged in error, and second, the evidence that emerged in error has no relevance whatsoever to the charges faced by Mr Sivero on this indictment that it is your responsibility to decide. Therefore, I direct you to disregard anything said about that ... particular matter by Detective Constable Peter Stark in its entirety, and to decide the case only on what is accepted, or found to be the relevant evidence that has been put before you."

 

[10] As noted already, the jury duly convicted the appellant of both charge 1 and charge 2.

 

The appeal hearing
[11] During the appeal hearing, DC Stark's witness statement was produced at the request of the bench. It contained the following passages:

"About 0700 hours, Wednesday [20^th] July 2011, I commenced duty at Corstorphine police station and was made aware of a robbery which had occurred the previous morning at the Shell Service Station, Glasgow Road, Edinburgh, where the counter assistant was robbed of cash from the till at knife point.

 

I was then made aware that the CCTV footage of that robbery, and another robbery which occurred a few hours later within a shop in Brunswick Street, Edinburgh, was contained within the divisional intelligence unit computer briefing site.

 

I viewed the footage of both these incidents, and immediately recognised the male responsible for both robberies, as being a male I know to be Salvatore Sivero, who is an Italian national, whom I previously dealt with in 2007, for him committing a series of robberies to petrol stations and shops throughout Edinburgh, which all occurred during the night and early mornings. Sivero received a custodial sentence for these crimes. I immediately recognised the facial features and deportment of Sivero, from the footage, although he appeared to have lost a substantial amount of weight from when I previously dealt with him.

 

I then made enquiries which revealed that Sivero had been released from prison in 2009, and I then made enquiries at his previous place of employment, where his former employer (not a witness), told me that he was currently working in an Italian restaurant, at the corner of Broughton Street and East London Street, Edinburgh. When asked what he looked like physically in comparison from when I previously dealt with him, I was told that he had lost a lot of weight and was receding badly on the top of his head.

 

I later made enquiries at his current place of employment and spoke with the owner (not a witness) who stated that Sivero was on holiday and had been due to fly to Nice, France, early on the Tuesday morning to attend a family wedding. The owner then described Sivero as being slim with badly receding hair, he stated that he had popped in to the restaurant on the Monday night, and had been wearing a white top and dark trousers when he did so.

 

I then apprised the witnesses Detective Constables Robertson and Gray of all the above information I had in relation to Sivero.

 

I took no further part in the enquiry.

 

I could identify the now accused Sivero again."

 

[12] Counsel for the appellant submitted that it did not matter whether there had been an actual breach of section 101 of the Criminal Procedure (Scotland) Act 1995 or whether this was one of the "intermediate" cases referred to in Deighan v MacLeod 1959 JC 25. There was no obvious reason for the question put by the advocate depute which elicited the reference to Edinburgh Prison. The information accidentally blurted out by the officer was so prejudicial to a fair trial for the appellant that the diet should have been deserted. The trial judge had erred in concluding that the modus operandi in each robbery was not similar. Where the appellant was accepting guilt of charge 1, the similarity in modus operandi in charge 2, taken with the disclosure of previous convictions, would result in prejudice to the appellant in that the jury would be much readier to convict of charge 2. The trial was relatively short, and accordingly the disclosure would be fresh in the jury's mind. No direction could cure the prejudice.

[13] The Advocate depute emphasised that there had been no deliberate flouting of the prohibition against disclosing convictions. The trial depute had not intended to bring out that information. The information in the officer's answer had not been so grave that it could not be cured by direction. It was a matter for the trial judge's discretion. He had given a specific direction, and the jury must be deemed to have acted on it. It was not clear how any similarity in modus operandi in charges 1 and 2 contributed to any prejudice. This ground of appeal should be refused.

 

Discussion
[14] We accept that what occurred was not deliberate. The Advocate depute did not wish to elicit evidence relating to the officer's inquiries of Edinburgh Prison. Nevertheless bearing in mind the content of DC Stark's witness statement, set out in paragraph [11] above, we consider that the Advocate depute's question "Did you play any other part in this inquiry?" was unnecessary and prima facie careless for the following reasons.

[15] First, there was no easily understandable reason behind the question. Once the officer had viewed the images in court, and explained that he knew the male person shown in them Salvatore Sivero, he had provided the necessary evidence. There was no point in asking anything about the appellant's employment or holiday abroad (referred to in paragraph xv in the judge's report, quoted above), and if the advocate depute wished simply to elicit the fact that DC Stark had passed on his identification information to the officers leading the robbery inquiry, a much more carefully phrased question could have achieved this. The officer himself explained in his witness statement: "I took no further part in the enquiry".

[16] Secondly, the information contained in DC Stark's witness statement (from which the Advocate depute was working) should clearly have alerted the questioner to the fact that this officer knew that the appellant had previously committed similar robberies of petrol stations and shops in Edinburgh. Accordingly great care had to be taken not to elicit any of that information.

[17] Against that background, it is our view that the question put was lacking in the level of care called for in the circumstances. While there may have been no deliberate intention to elicit previous convictions, and while there may have been no actual breach of section 101 of the 1995 Act, we consider that the observations of Lord Justice-Clerk Thomson at page 29 of Deighan v MacLeod 1959 JC 25 are wholly apposite:

"The assumption of the provisions is that somebody who is exercising control over the trial is in a position to lay the prohibited information before the Court. There is an injunction clearly laid on the prosecutor, and if the prosecutor deliberately flouts it, then as the cases show, a conviction cannot stand. Where, on the other hand, in answer to a properly framed and competent question, a witness ultroneously includes in his answer something pointing to the accused's having been previously convicted, the injunction is not infringed because the contravention is not the act of the prosecutor and he cannot be regarded as having laid the information before the Court. (I should interpolate that when such a contretemps occurs the safeguard for the accused, in solemn procedure is provided by the judge's warning the jury, and in summary procedure by the judge's good sense.) Intermediate cases may be difficult but it can safely be said that prosecutors must be very careful, and if by carelessness in framing a question or by pressing a witness too far despite the sort of warning signs one sometimes sees, the prohibited information is allowed to come out, then the prosecutor must pay the price, and rightly so, because as a rule the prosecutor knows quite a bit about the witnesses and their means of knowledge and ought to be on his guard."

 

[18] Furthermore, the trial judge had been made aware - during the submissions concerning the possible desertion of the trial - that the appellant's position was that he accepted that he was guilty of charge 1. Thus the trial judge was aware that the jury would be told, at some stage before they retired to consider their verdict, of the appellant's acceptance of his guilt in respect of charge 1. In our view (contrary to that of the trial judge) there were significant similarities between the robbery committed in charge 1, and that committed in charge 2. We therefore consider that there is a significant risk that PC Stark's disclosure of the appellant's previous prison sentence, when added to the appellant's admission of guilt in respect of charge 1 and the similarities in modus operandi between charges 1 and 2, may have influenced the jury in favour of a verdict of guilty of charge 2, thus resulting in prejudice to the appellant. When we also take into account the lack of care in the prosecutor's questioning which elicited the unwanted disclosure, we consider that the scales in this admittedly "intermediate case" (cf Deighan v MacLeod cit sup) tip in favour of the appellant. In our view the trial judge erred in the exercise of his discretion when he refused to desert the diet pro loco et tempore. We are satisfied that this resulted in a miscarriage of justice. We shall accordingly allow the appeal and quash the conviction in respect only of charge 2. The conviction in respect of charge 1 stands. There may be consequences in respect of the sentence imposed, but that is a matter for another hearing.