APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 108
Lord Eassie Lord Brodie Lord Drummond Young	Appeal No: XC714/12   OPINION OF THE COURT   delivered by LORD BRODIE   in   APPEAL   by   ADAM EDWARD MORRISON   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: Moggach; Simpson & Marwick

Respondent: Prentice, QC, Solicitor Advocate AD; Crown Agent

 

20 September 2013

Introduction
[1] On 5 November 2012, the now appellant was convicted in the sheriff court at Peterhead following a trial on indictment lasting five days, of a contravention of section 2B of the Road Traffic Act 1988. The charge in respect of which he was convicted was in the following terms:

"(001) on 21 January 2011 on a road or other public place, namely the A90 Aberdeen to Peterhead road at Resser Way, Harehill, Aberdeen you ADAM EDWARD MORRISON did cause the death of [the deceased] by driving a mechanically propelled vehicle, namely motor lorry registration mark AF02 UFA without due care and attention or without reasonable consideration for other persons using the road or public place and did exit from the junction at Resser Way onto the A90 Aberdeen to Peterhead road, attempt to cross the northbound carriageway and turn right to enter the southbound carriageway when it was not appropriate to attempt to perform such a manoeuvre and you had inadequate time to perform said manoeuvre whereby said motor lorry registration mark AF02 UFA did block both lanes of the northbound carriage and said[deceased] who was driving [a motor car] northbound on the A90 Aberdeen to Peterhead road collided with said motor lorry registration mark AF02 UFA and was so severely injured that she died from her injuries;

 

CONTRARY to the Road Traffic Act 1988, S 2B."

 

The jury verdict was by a majority.

[2] The appellant appeals against his conviction. In brief summary his grounds of appeal are as follows:

1. The procurator fiscal depute in the course of his speech to the jury made a number of improper remarks which were highly prejudicial to the appellant and which went uncorrected by anything said by the sheriff in his charge. So prejudicial were these remarks, that it may have, in any event, been impossible for the sheriff adequately to have dealt with them. Moreover, prior to addressing the jury, the procurator fiscal depute distributed written material to the members of the jury, copies of which were not provided either to the defence or to the sheriff. The material was understood to be extracted from the Road Traffic Act 1988 but precisely what the material comprised was not, and has not been disclosed to the defence.

2. The sheriff failed to direct the jury on the use that could be made of the appellant's statement to the police given immediately after the accident and recorded in paragraph 4 of the joint minute which had been led as part of the Crown evidence at trial.

3. The sheriff failed to direct the jury on the significance of the Highway Code and, in particular on the terms of s 38(7) of the Road Traffic Act 1988.

4. The sheriff failed to direct the jury about the use that could be made of opinion evidence and, in particular, how the jury should consider the evidence of the two collision investigators who voiced opinions on possible reconstructions of the collision and the evidence on interpretation of the tachograph which had been fitted to the appellant's vehicle.

[3] Having heard Mr Moggach, (who was defence counsel at the trial) on behalf of the appellant in support of the first four of these grounds of appeal and the advocate depute in reply, we have come to the view that there is substance in these grounds of appeal and that, as a result of the conduct of the procurator fiscal depute and what we see as being deficiencies in the sheriff's jury directions, the appellant's conviction must be regarded as a miscarriage of justice and accordingly be quashed. Our reasons are set out below.

 

The Road Traffic Act 1988
[4] The Road Traffic Act 1988 provides, inter alia as follows:

"2B Causing death by careless, or inconsiderate, driving

A person who causes the death of another person by driving a mechanically propelled vehicle on a road or other public place without due care and attention, or without reasonable consideration for other persons using the road or place, is guilty of an offence. ...

 

3ZA Meaning of careless, or inconsiderate, driving

(1) This section has effect for the purposes of s2B and 3 above and s3A below.

 

(2) A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver.

 

(3) In determining for the purposes of subsection (2) above and what would be expected of a careful and competent driver in a particular case, regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.

 

(4) A person is to be regarded as driving without reasonable consideration for other persons only if those persons are inconvenienced by his driving. ...

 

S38 The Highway Code

 

...

 

(7) A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under the Traffic Acts, the Public Passenger Vehicles Act 1981 or s18 to 23 of the Transport Act 1985) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings."

 

The Highway Code
[5] Rule 173 of the Highway Code (2007 edition) is in the following terms:

"Dual carriageways. When crossing or turning right, first assess whether the central reservation is deep enough to protect the full length of your vehicle..

 

·       If it is, then you should treat each half of the carriageway as a separate road. Wait in the central reservation until there is a safe gap in the traffic on the second half of the road.

 

·       If the central reservation is too shallow for the length of your vehicle, wait until you can cross both carriageways in one go."

 

The Accident
[6] The sheriff in his report to this court summarises the circumstances of the collision between the deceased's motor car and the articulated tractor and semi-trailer unit being driven by the appellant in the following terms:

"(4) The evidence of the accident which caused the deceased's death was largely agreed in the Joint Minute. The accident occurred on a dual carriage way section of the A90 road leading north from Aberdeen on 21 January 2011.

 

(5) About 5.25 p.m. that day, a Vauxhall Astra motor car being driven north on the A90 by the deceased collided with an articulated lorry and trailer being driven by the Appellant. The collision occurred at the junction of the A90 with Resser Way, Harehill ("the Harehill junction"). Vehicles intending to turn south on to the A90 at the Harehill junction must cross both northbound lanes and the central reservation then turn right to emerge on to the southbound carriageway.

 

(6) At the time of the accident, it was dark fair and dry with no high winds, although the road surface was damp. The locus was not illuminated by street lights.

 

(7) Following the collision, post mortem examination ascertained the deceased died instantaneously from head injuries she sustained. ...

 

(8) Police found the Appellant's lorry stationary across the A90. The tractor unit faced south and protruded into the southbound offside. The trailer blocked the whole of the offside lane of the northbound carriageway and part of the nearside lane. It was still attached to the tractor unit and was apparently damaged in the collision. Its side marker lamps were illuminated.

 

(9) The deceased's vehicle lay about 50 metres further north of the trailer. The police photographs show it sustained damage to its front offside tyre and wheel. Its roof appeared to have peeled off. Debris and markings on the road were found between it and the Appellant's lorry.

 

(10) The Appellant's lorry and the deceased's car were both subsequently examined and found to have no defects which might have contributed to the accident."

 

[7] A matter of initial controversy at the trial was the extent, if any, to which the tractor unit of the appellant's vehicle was intruding into the offside southbound lane of the dual carriageway at the time of the collision. The significance of this was how it bore on the decision of the driver of the vehicle which was in that lane, Crown witness 6, to brake to a halt just short of the tractor unit in response to her having seen the appellant's vehicle in the central reservation. It was the evidence of Crown witness 6 that, as the sheriff records it, "the lorry stopped fully blocking the offside southbound lane". However, as we understand it, by the end of the Crown case it was accepted (as the procurator fiscal depute did in the course of his address to the jury - transcript page 24, line 22), on the basis of the photographs and the expert evidence, that she was mistaken about this; the southbound offside lane was not in fact blocked, the protrusion into the lane recorded by the sheriff at paragraph (8) of his report being the result of the tractor and trailer having moved between one and three metres forward after the collision (see procurator fiscal depute's address to the jury - transcript page 10, line 24).

 

The defence position at trial
[8] Mr Moggach confirmed the position taken by him at trial as to what had been the circumstances of the collision. His summary was as follows. The A90 is a dual carriageway at the point where the collision occurred; at the time of the collision there was busy traffic both northbound and southbound; the northbound traffic was busier than the southbound traffic. There is a roundabout near to the Bridge of Don, situated to the south of the point at which the collision occurred ("the B&Q roundabout"). The junction on the west side of the A90 opposite the point of collision, is about 700 metres north of the B&Q roundabout; that junction gives access to an industrial park. The appellant had driven from the industrial park to the junction; he was intending to turn right onto the southbound carriageway of the A90; the appellant's vehicle remained stationary at the junction for two minutes and forty seconds. The appellant observed no traffic on his right between the B&Q roundabout and the junction; traffic travelling in the southbound carriageway was sparse, but it included the motor car driven by Crown witness 6. The appellant commenced the manoeuvre by which he intended to turn right into the southbound carriageway by driving across the northbound carriageway. The appellant thought that the motor car driven by Crown witness 6 would continue at its then apparent speed and therefore that it would have cleared the central reservation by the time the appellant's vehicle reached it, thereby allowing the appellant to continue his manoeuvre by turning right into the offside southbound lane. However, Crown witness 6 slowed her car to a stop creating an impasse between her motor car and the appellant's vehicle, preventing the appellant from turning into the southbound carriageway because of the presence of the car driven by Crown witness 6.

[9] The appellant did not give evidence. Mr Moggach took the view that at the close of the Crown case the circumstances of the collision were essentially uncontroversial, the issue for the jury being whether the appellant's decision to embark on the manoeuvre which involved crossing the northbound carriageway at a time when his ability safely to drive into the southbound carriageway depended on the car driven by Crown witness 6, which was to be seen approaching, having cleared the central reservations before the appellant's vehicle made its right turn, demonstrated a lack of due care and attention or reasonable consideration for other persons using the road. Mr Moggach did not put it to Crown witness 6 that she had been the cause of the accident by slowing down and thereby preventing or at least inhibiting the appellant from completing the right turn. Mr Moggach explained to us that it was not the appellant's position to attach any degree of blame for having caused the accident to Crown witness 6. Rather, she had simply acted in a way that the appellant had not expected. This scenario had been put to the accident investigator, PC Graham Mutch, in an exchange which is recorded by the sheriff at paragraph (21) of his report.

 

Submissions of parties

First Ground of Appeal - The conduct of the procurator fiscal depute
Appellant
[10] Mr Moggach's principal complaint about the conduct of the procurator fiscal depute was directed at a series of what Mr Moggach described as highly prejudicial remarks made by the fiscal in the course of his address to the jury, remarks which had gone unchecked by the sheriff either at the time or when giving his directions to the jury.

[11] However, Mr Moggach also complained about what occurred immediately prior to the procurator fiscal depute's speech. With the assistance of the bar officer the procurator fiscal depute had distributed written material to the members of the jury without having asked the prior permission of the sheriff or having discussed the matter with Mr Moggach. Neither the sheriff nor Mr Moggach had been provided with copies of what had been distributed. It was Mr Moggach's understanding that what was distributed was an excerpt from the Road Traffic Act 1988 but just what it was he did not know. As appeared from the sheriff's report, it was the sheriff's understanding that it was a copy of s 2B of the 1998 Act, albeit that it was the understanding of the advocate depute, having made enquiry, that what had been distributed was a copy of s 3ZA (downloaded from a digital version of the Act). Mr Moggach had made no objection at the time, it being his belief that it was improper to interrupt a speech to the jury. Mr Moggach acknowledged that in the course of the Crown address to the jury (transcript page 8, line 6) the procurator fiscal depute had displayed on a viewing screen the text of s 3ZA, which would tend to confirm the advocate depute's understanding, but the fact remained that the prosecutor had put before the jury, without the permission of either the sheriff or defence counsel, written material the nature of which was undisclosed. This was not only discourteous, it was improper.

[12] Mr Moggach then turned to draw particular attention to the following passages in the procurator fiscal depute's address to the jury:

"Now, you can contrast my role with that of Mr Moggach here, whose chief duty is to act in the interests of his client. So, by way of example, if I become aware that an accused person has not, in fact, committed a crime, it is my absolute duty to use my power to stop the trial, whereas if my friend becomes aware that his client did commit a crime, he is perfectly entitled to carry on defending him and to put the Crown evidence to the test. Effectively, I have to act in the public interest. The defence have to act in the private interests of their clients, so we're doing slightly different jobs. That's just the way that our system of justice works, and whilst I'm doing my job and my friend's doing his job, it's his Lordship's job to oversee it all and make sure we do it all fairly and properly.

 

I mentioned the sheriff. He's going to give you his charge when we're done with speeches, and if he contradicts anything that I say to you in the next 40 minutes or so, then you must accept what he tells you rather than what I say.

 

That said, I always feel I should warn juries a little bit about the sheriff's charge because I think there can be some misapprehension. The sheriff will not be reminding you of the evidence. He will not be picking out things which he thinks are particularly important for you to consider. He will certainly not be telling you who you should believe or giving you hints as to what you should decide. He will be giving you general directions as to the law and guidance about how you should go about weighing up the evidence you've heard. Now, some of what he will tell you might actually have very little to do with how you decide the present case. In Scotland, the sheriff has to explain the law of corroboration. It has to be done. In the present case, there's no suggestion there's a problem with corroboration. This case is corroborated. Nonetheless, he'll have to tell you about it.

 

Other elements of what he has to tell you will be extremely important and relevant to this particular case.

(Transcript page 2, line 11 to page 4, line 12).

 

...

 

Personally, I think if you don't think the evidence takes you beyond a reasonable doubt, if you have a reasonable doubt, then you should have the courage to acquit him properly, call it not guilty. If, on the other hand, you don't find yourselves left with a reasonable doubt, convict him. Not proven, in that regard, is nobody's friend. It's a historical hangover which, as you may be aware, the Scottish Parliament is currently debating actually abolishing, and I'm saying all of this because it's my experience and, I suspect, the experience of other lawyers in the room, that juries sometimes feel that not proven is sort of a safe option. It's a human nature thing that, when you've had two contrasting versions of events, you conclude that the truth must lie somewhere in the middle. Well, not always so, ladies and gentlemen. If you hear two people arguing, one person saying two plus two is four and the other say two plus two is six, it does not mean that two plus two's actually five, it just means that one of those people's wrong. Not proven isn't a middle way you can give something to everybody. Not proven is an acquittal.

(Transcript page 5, line 12 to page 6, line 13).

 

...

 

What is Mr Morrison's position about all of this? How did his trailer come to be in the position such that the Astra ended up going underneath it? What is my friend Mr Moggach going to tell you when he comes to talk to you in a few moments' time?

 

Well, he will inevitably suggest to you, ladies and gentlemen, Mr Morrison did not drive in a way that was below the standard you would expect from a careful and competent driver, and that any inconvenience caused to other road users was not due to Mr Morrison. How will he suggest this? Well, we don't yet know. We haven't heard from Mr Morrison, so we don't know what his position will be.

 

Now, let me be very clear about one thing at this point, ladies and gentlemen. Mr Morrison did not have to tell you anything. You cannot, and you must not, draw any conclusions at all from the fact that Mr Morrison hasn't spoken to you in this trial. What it does mean is I have to guess a little bit as to what the defence are going to say.

 

Now, one thing I can guarantee you is that whatever Mr Moggach says, it's going to be masterful. You'll have observed from his cross-examination that he is a master of his craft. But what would he actually say to you? See if we can work it out.

 

How can this collision not be Mr Morrison's fault? He was the man in charge of the lorry. The lorry was the vehicle which had crossed the road, and that's what caused the collision. Well, perhaps as a first suggestion we can imagine that Mr Morrison's been patiently waiting, pulled out only when it was clear in both directions. Unfortunately, by the time he's reached the central reservation, clear roads have been disappeared. What looked perfectly safe when he started the manoeuvre no longer is. Now, why could that be? Maybe the traffic was going at such vast speed that he couldn't have seen it approaching, or maybe his lorry suffered a defect and had to come to a halt.

(Transcript page 27, line 16 to page 29, line 15).

 

...

 

So if it is difficult to suggest that the cars weren't there to be seen when Mr Morrison started his manoeuvre, maybe it's the case that something changed which caused him to abort what he was trying to do. The defence foreshadowed this line with the collision investigators who had in their report acknowledged that sometimes unexpected things can happen, and that once committed to the manoeuvre Mr Morrison would have been unable to go back on it. You might remember me suggesting to PC Marr that, for example, something unexpected might be a police car travelling at great speed suddenly appearing on the southbound carriageway, and he laughed and said it wouldn't have to be a police car, it could have been anything doing a great speed. I'm sure you can come up with other examples, something falling off the back of another vehicle, or something that would cause the crossing vehicle to have to stop.

 

But that didn't seem to be what counsel was getting at in his cross-examination. He asked the collision investigators what Mr Morrison could have done differently if an oncoming driver had done something unexpected in the southbound carriageway and, as that line of questioning developed, it became apparent that what was effectively being asked was the following. What could Mr Morrison have done, given that [Crown witness 6], who would otherwise have been safely past the junction, suddenly panicked and braked to a halt in front of him? Surely that would count as a change of circumstance. We've heard from the collision investigators that once committed to the manoeuvre, Mr Morrison could hardly go back on it. His only option would be to stop or otherwise plough into [Crown witness 6].

 

Ladies and gentlemen, it's my suggestion to you there's a couple of very serious issues with this approach. The first, and most obvious, perhaps, is the one the collision investigators told you about themselves. At that junction, there is no guarantee that a car in the southbound lane of the A90 will carry on in a straight line at a constant speed. It might see the truck coming and slow down. PC Marr thought that was a perfectly reasonable thing for a driver to do, or it might equally slow down at the turning lane there. It might want to use the turning lane.

 

Let me stress that. If, at the Resser Way junction, you pull out and get into the southbound carriageway, knowing that there are southbound vehicles coming toward you, and you're doing so in the hope that they'll be past and clear before you actually get all the way across the road, you're pulling out in breach of common sense that tells you those cars might not, for any number of reasons, carry on at the speed that they're presently travelling. That is why the Highway Code specifically says you should not do this. If your vehicle is too large to put it safely in the way of the central reservations, you must make sure that the way is clear all the way across the road. That's in Paragraph 8.11 of the collision report. You heard a little bit about the Highway Code. My friend had some fun because the police were using an out-of-date version, but the rule has been the same.

 

So if it is Mr Morrison's position that he pulled out seeing [Crown witness 6] coming, and he then had to, he couldn't complete his manoeuvre because she slowed down unexpectedly, well, what he is telling you, ladies and gentlemen, is that he deliberately breached the Highway Code in carrying out that manoeuvre.

 

There are other problems with this version of events too. It would require you, for example, to disbelieve completely [Crown witness 6] and [another witness] when they tell you it was busy with southbound traffic that evening. We know, for example, there wasn't just [Crown witness 6] on that piece of road. There was at least [another witness] there as well. It wasn't suggested to either of these witnesses that they were mistaken about the traffic flow, and you might wonder why they weren't given the chance to comment on it if it was going to be an important part of the defence case.

 

Furthermore, it wasn't suggested to [Crown witness 6] herself that she had acted irrationally. Surely it would only have been fair to put to her the accusation this collision was ultimately because of her bad driving rather than merely to suggest it to an expert witness at a later stage. Nothing of the sort was mentioned to her.

 

You'll remember her evidence was attacked in detail as to where the lorry ended up on the carriageway, and we spent some time with other witnesses trying to establish exactly where the collision would have been in what I expect will be a further attempt to discredit [Crown witness 6's] description of things. But as to her possible responsibility for the collision by braking sharply when she didn't need to and thus causing Mr Morrison to have to abort his manoeuvre, not a word was said in cross-examination.

 

[Crown witness 6], you'll recall her position was she acted as she did because she couldn't pull into the near side. There was a Transit van there, and she couldn't brake any harder because there was traffic behind her, and she didn't think she could maintain her speed because the lorry was trundling across to her and showing no sign of stopping coming.

(Transcript page 33, line 11 to page 38, line 16).

 

...

 

Ladies and gentlemen, let me be clear. There's no rule of law that says that [Crown witness 6] had to be asked these questions. How the defence go about questioning witnesses is entirely a matter for them, but you might like to ask yourselves how much weight can you put on the suggestion that [Crown witness 6] was effectively the cause of this collision when she was never given the chance to address that herself? And not one single witness spoke to her having driven badly or her having driven irresponsibly at the time.

 

You might be left wondering whether, to an extent, blaming it on [Crown witness 6] was Mr Morrison's position at the outset or if this is something that occurred maybe halfway through the trial once we'd heard from her. Why might I suggest that? Well, ladies and gentlemen, we haven't heard from Mr Morrison in this court. I stress again that you must read nothing at all into that, but the police did hear from Mr Morrison on that night. And what did he tell them: He said there was a big enough gap. He said there was plenty of time. It's there in the joint minute. It's at Paragraph 4 of the joint minute. Nobody recorded him as saying, 'I had to slow down because there was an oncoming car', or, 'If that person hadn't have braked, it would have been fine', or anything of that sort at all. Now, you might have thought that he would be keen to tell people if the collision would come about because of the factors out of his control, and if another car had caused him to have to stop that would be at the forefront of his mind and he'd be keen to explain why this wasn't really his fault. He didn't say it to the police. He didn't say it to [Crown witness 4], who was the person we know he spoke to. You have to wonder why. My last thought about this possible suggestion this comes back on [Crown witness 6], I would ask you consider this. There is no evidence that Mr Morrison was stopped until he was infringing into the overtaking lane on the southbound carriageway. Not perhaps as much as [Crown witness 6] remembers, but clearly he was into her lane, and it was shown in the plans and the photographs. If he was slowing down to avoid her, why did he end up in her lane anyway?

(Transcript page 39, line 15 to page 41, line 19).

 

...

 

Above all else, ladies and gentlemen, even if, even if you were to accept that [Crown witness 6's] driving did cause Mr Morrison to carry out his manoeuvre more slowly than he intended and, in turn, cause the collision, then the fact would still remain that he must have pulled out while she was approaching on the southbound carriageway and whilst he knew she was approaching, and that would be in breach, as I've said, of common sense, and of Rule 173 of the Highway Code.

(Transcript page 42, line 16 to page 43, line 2).

 

...

 

You might, in a moment, be asked to put yourself in Mr Morrison's shoes. What else could he have done? He'd been stuck there for 2 minutes and 40 seconds. He thought he had a big enough gap. What else, what else was expected of him? Well, you might also try putting yourselves in the shoes of [Crown witness 3] and [Crown witness 5] or [Crown witness 6] . How would you feel if you'd been them? How would you feel, ladies and gentlemen, if you were [the deceased's husband]? He's been sat quietly here through much of this trial. He should be looking ahead to Christmas with his wife at their ... home right now. Maybe if you try and put yourself in his shoes, maybe you'll conclude that if you'd been Mr Morrison what you would have done is turn left and go on the Black Dog to turn there.

 

Ladies and gentlemen, I apologise for taking up quite so much of your time this morning. You may have heard his Lordship remark on Friday that I'm not known for my long speeches, and it's true that generally I'm not. This case has been an exception, in part because of the length of the trial, which led me to think I might need to go over some of the civilian witnesses' evidence with you again and, in part, because there's been no defence evidence led which has meant that I've had to try and guess what Mr Moggach will say to you in a few moments' time in order that I can give you my responses to that."

(Transcript page 46, line 19 to page 48, line 3).

 

[13] It was Mr Moggach's submission that in the passages to which he drew attention, the procurator fiscal depute had made a series of improper remarks which were so prejudicial to the appellant's case and the conduct of that case by him as defence counsel that it was very doubtful whether the consequent prejudice could adequately be cured by anything said by the sheriff in the course of his directions but, in any event, with one exception, the sheriff had done nothing to check or correct what had been said.

[14] The procurator fiscal depute had, quite unnecessarily, contrasted his role, as representing the State or the people, with the role of defence counsel whose chief duty was to act in the interests of his client. If he as prosecutor became aware that the accused had not, in fact, committed a crime, it was his absolute duty to use his power to stop the trial, whereas if defence counsel became aware that his client had committed a crime he was "perfectly entitled to carry on defending him". The effect of these remarks was to diminish the standing of defence counsel in the eyes of the jury and make the jury less inclined to accept what defence counsel said. There was at least a suggestion in the procurator fiscal depute's remarks that defence counsel would be prepared to act dishonestly or improperly with a view to deceiving or "hoodwinking" the jury. This was reinforced by later passages in the procurator fiscal depute's speech. A theme to which the depute returned was that because the appellant had not given evidence neither he, the procurator fiscal depute, nor the jury knew what the defence position was. The procurator fiscal depute asked the rhetorical question: "What is my friend Mr Moggach going to tell you when he comes to talk to you in a few moments time?" Having asked a further rhetorical question in relation to the basis upon which defence counsel would contend that the appellant had not driven in a way which was below the standard to be expected from a careful and competent driver, the procurator fiscal depute asked a third rhetorical question: "How will he suggest this?" He then answered his own question in these terms:

"Well we don't know yet. We haven't heard from Mr Morrison so we don't know what his position will be ... Mr Morrison hasn't spoken to you in this trial what it does mean is I have to guess a little bit at what the defence are going say."

 

The procurator fiscal then continued:

"Now, one thing I can guarantee you is that whatever Mr Moggach says, it's going to be masterful. You'll have observed from his cross-examination that he is a master of his craft. But what would he actually say to you? See if we can work it out."

 

It was Mr Moggach's submission that the reference by the procurator fiscal depute to what Mr Moggach would say in the course of the defence address to the jury being "masterful" was, at best, a back-handed compliment. Taken with what the procurator fiscal depute had said about the different roles of prosecutor and defence counsel and the suggestion that the appellant had failed to disclose what his position was, the reference to Mr Moggach being a "master of his craft" had a decidedly disparaging ring to it and suggested that the defence were taking a less than straight approach to the case. That would certainly be what the jury was being invited to infer the procurator fiscal depute said,

"You might be left wondering whether, to an extent, blaming it on [Crown witness 6] was Mr Morrison's position at the outset or if this is something that occurred maybe half way through the trial once we had heard from her."

 

That was to suggest, in terms, that the appellant and indeed Mr Moggach were prepared to "make it up as they went along".

[15] Counsel then observed that, curiously, the procurator fiscal depute had considered it necessary to,

"warn juries a little bit about the sheriff's charge ... He will not be picking out things which he thinks are particularly important for you to consider"

 

It may be that what the procurator fiscal depute had in mind was that the sheriff would not necessarily review the evidence (although, of course, he might) but for the jury this was an obscure and confusing remark, only made the more confusing by the reference: "Other elements of what he has to tell you will be extremely important and relevant to this particular case". What these "other elements" might be was not specified.

[16] Equally unnecessarily and wrongly, the procurator fiscal depute had given his personal views about the not proven verdict, views with which he chose to associate defence counsel (as one of "the other lawyers in the room"). Effectively, he had sought to remove a not proven verdict as an option for the jury to consider. This was an unwarranted interference with the jury's decision-making. Whatever might be the merits or demerits of the not proven verdict, a speech to the jury was not the place to debate the matter. If it had been the place to debate the matter, fairness would have required bringing into the equation other features of the Scottish system including the bare majority required for conviction.

[17] It was Mr Moggach's submission that by reiterating that because the appellant had not given evidence at trial, the jury "had not heard from Mr Morrison", the procurator fiscal depute had been both inaccurate and unfair. For example, as recorded at page 28 of the transcript, the procurator fiscal said: "We haven't heard from Mr Morrison, so we don't know what his position will be" and then, a little later, "what it does mean is I have to guess a little bit as to what the defence are going to say". Albeit that the appellant had not given evidence, what he had said about the accident, immediately after it occurred, had been put before the jury in the joint minute (Mr Moggach explained that this particular piece of evidence was agreed by joint minute to avoid a further adjournment of the trial due to the absence of the police officer who spoke to the appellant's statement). As the procurator fiscal depute put it in the course of his speech (transcript page 7, line 11):

"Mr Morrison's involvement as the driver in the collision is right there in the joint minute. You have to accept that he was there. He has never denied it."

 

What the procurator fiscal had failed to do was to quote the full terms of paragraph 4 of the joint minute in which it was agreed that the appellant, without prompting, stated to the police officer that,

"he couldn't understand how the accident had happened, that he was a careful driver, that he had never been involved in a crash or claim. He also stated that he was aware of the size of his vehicle and that there 'was a big enough gap' and 'plenty of time'."

 

The defence position had been put to the accident investigator and was consistent with the rest of the evidence in the case. As could be seen from the transcript of the procurator fiscal depute's speech, he in fact fully understood the defence position and dealt with it in his address to the jury.

[18] Finally in relation to this ground of appeal Mr Moggach returned to the invitation which had been made by the procurator fiscal depute to the jury to consider how they would feel were they the deceased's husband contemplating Christmas. The invitation constituted a quite improper invitation for any prosecutor to make. It was accepted that the sheriff had given a standard direction on the need to adopt a dispassionate approach when reaching a verdict but, in the circumstances of this case, that had been wholly inadequate.

 

Respondent
[19] The advocate depute submitted that where what was in issue was the improper conduct of a prosecutor, the approach to be adopted was first to consider the likely impact on the jury of the conduct complained of and then to consider whether the matter had been adequately dealt with by the presiding sheriff. The advocate depute accepted that some of the comments by the procurator fiscal depute had been ill-advised, but they had to be given a fair reading. Contrary to what had been suggested, the procurator fiscal depute's remarks did not amount to an invitation to ignore what was about to be said by defence counsel in his address to the jury. That said, it would have been better had the procurator fiscal depute concentrated on what was the Crown case and not made so much of his supposed difficulty in anticipating what the defence case might be. It was clear that the procurator fiscal depute had in fact understood what would be said on behalf of the appellant when Mr Moggach came to address the jury. It had been improper for the procurator fiscal depute to put forward his personal views about the not proven verdict but what he said simply went to emphasis. It had to be borne in mind that the facts here were essentially not in dispute, the question being whether on embarking on his manoeuvre the appellant had exercised due care. That was the question that the jury might be expected to determine on the basis of either a guilty or not guilty verdict. The advocate depute indicated that he did not propose to address each of Mr Moggach's complaints separately but he submitted that, taken collectively, the remarks made by the procurator fiscal depute, ill-advised as some of them were, were not productive of a miscarriage of justice.

 

Second Ground of Appeal - Failure to give appropriate direction on a mixed statement

Appellant
[20] It was Mr Moggach's submission that the sheriff had misdirected the jury on the evidence which was available to them in support of the defence case. When dealing with the defence case all that the sheriff had said to the jury was:

"I want to turn to the defence briefly. In this case no evidence has been led by the defence. Mr Morrison hasn't given evidence. But remember, he doesn't need to prove his innocence, that is presumed for the purpose of the case. He's quite entitled to leave the Crown to try and prove his guilt. That's why the word 'trial' comes around. You can't draw any adverse inference at all from the fact that Mr Morrison didn't give evidence."

That was simply inaccurate. Whereas the appellant had not entered the witness box, there was evidence emanating from him and available to the jury when considering the defence case. Paragraph 4 of the joint minute of agreement agreed that:

"Mr Morrison made himself known to police officers and identified himself as the driver of the lorry in question. PC Begg noted Mr Morrison's details and whilst this was taking place Mr Morrison, without prompting, stated to PC Begg that he couldn't understand how the accident had happened, that he was a careful driver and that he had never been involved a crash or claim. He also stated that he was aware of the size of his vehicle and that there 'was a big enough gap' and 'plenty of time'."

 

That was a mixed statement in that the appellant had admitted to being the driver and admitted that he was aware of the length of his vehicle but he had qualified that admission by the explanation that there were "a big enough gap" and "plenty of time". The procurator fiscal depute had relied on the appellant's admission when addressing the jury and, more importantly, Mr Moggach had relied on what appeared in the joint minute, taken with what the accident investigators stated in their report and the evidence adduced from the tachograph recording in the appellant's vehicle. Strictly, it was inaccurate to say that no evidence had been led by the defence in that the joint minute was as much a part of the defence case as it was a part of the Crown case but the critical failure of the sheriff was his omission to make clear to the jury that the exculpatory remarks made by the appellant in his statement to the police were available in support of his defence. Not only did the sheriff fail to make that clear, he erroneously suggested that the appellant was relying upon the presumption of innocence and nothing else.

 

Respondent
[21] The advocate depute accepted that the second ground of appeal presented the Crown with some difficulty. What the appellant had said to the police was unquestionably a mixed statement in that he admitted that he was the driver and that he was aware of the length of his vehicle. The appropriate directions on mixed statements by an accused should have been given. However, there was a question as to whether the failure to give that direction had been productive of a miscarriage of justice. The case was somewhat unusual in that the jury were aware that the comments had been made and would have understood that they related to the case.

 

Third Ground of appeal - Failure to give a direction on the status of the Highway Code
Appellant
[23] Mr Moggach submitted that reference had been made to the Highway Code and in particular rule 173. The Crown relied on the terms of the rule and in his address to the jury the procurator fiscal depute had repeatedly asserted that it had necessarily (and deliberately) been contravened by the appellant. In the circumstances, the sheriff should have directed the jury on the proper interpretation of the rule and, more importantly, on the terms of s38(7) of the Road Traffic Act 1988 respecting the status of the Highway Code.

 

Respondent
[23] In the submission of the advocate depute nothing turned on this ground of appeal. The Crown had not relied on rule 173 as such.

 

Fourth Ground of appeal - Failure to give an adequate direction on use of expert evidence
[24] Mr Moggach submitted that in circumstances in which the Crown had led two accident investigators and two tachograph analysts who had given opinion evidence, it was incumbent upon the sheriff to give the directions normally required about how expert evidence could be used and how it should be assessed. The sheriff had failed to do this.

 

Respondent
[25] The advocate depute pointed to the, admittedly rudimentary, direction that the sheriff had given on the assessment of evidence which was recorded at page 4, line 16 of the transcript of his jury directions. This was not a case where there was any real issue as to how the expert evidence should be interpreted. For example, it was not a case where there had been contradictory expert evidence. It could not be said that the failure to give a direction on how to make use of opinion evidence had given rise to a miscarriage of justice.

 

Discussion
First Ground of appeal - The conduct of the procurator fiscal depute

[26] We begin with the matter of the procurator fiscal depute having put before the jury, before his oral address, certain printed material. Mr Moggach understandably did not point to any prejudice having been suffered by the appellant by reason of the procurator fiscal depute having put before the jury copies of what the advocate depute advised us was the text of s3ZA of the 1988 Act. Mr Moggach submitted, however, that the procurator fiscal depute had gone about things in quite the wrong way, thereby demonstrating discourtesy to the court and to the defence. We agree. We take the view that the sheriff should have intervened immediately when he realised what was happening. By not doing so, he abdicated the control of the proceedings, which was an essential part of his function as the judge presiding over the trial. That the sheriff was mistaken as to the precise text that was being put before the jury (in his report he describes it as a copy of s2B) underlines the point. We would not wish to be thought to be discouraging the use of text or other visual aids in order to assist juries to understand what is being said to them, but providing jurors with documents which are not listed productions is something which may only be done with the approval of the presiding judge, after all parties have had the opportunity to consider what is being proposed and to express objection or otherwise. One would hope that a proposal to provide the jury with an extract of a relevant statutory provision would not prove controversial but it cannot be assumed that that will necessarily always be so. Parties will wish to assure themselves that the text of any statutory provision which it is proposed to be put before the jury in that way is an accurate version of the applicable provision. There may be other concerns; for example the other party might want to add a further statutory provision so that the jury could consider the original provision in context

[27] We next turn to consider the criticisms advanced by Mr Moggach about what was said by the procurator fiscal depute during his address to the jury. As the procurator fiscal depute informed the jury, the prosecutor has duties which go beyond doing all that he can to secure a conviction. The prosecutor's role was described by Rand J in the Supreme Court of Canada in Boucher v The Queen (1954) 110 Can CC 273 at 270 in terms that have been repeatedly quoted:

"It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before the jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: It should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings".

 

It is of course not only the prosecutor who has duties constraining his freedom of action. So do defence counsel and the judge. Taken together, these duties provide the basis for the rules of proper conduct of a criminal trial. These are not rules of a game; they are rules with a purpose, the purpose being to secure a fair trial: Randall v The Queen [2002] 1 WLR 2237, per Lord Bingham of Cornhill, giving the judgment of the Privy Council, at paras 11, 28 and 29. While not every departure from good practice renders a trial unfair, there may come a point at which it is so gross, or so persistent, or so prejudicial or so irremediable that an appeal court will have no choice but to find the trial as having been unfair and quash any resulting conviction: Randall supra at para 28, followed in Donnell v HM Advocate [2009] HCJAC 83. In event of a departure from proper practice, for example by the making of an inappropriate comment by counsel in the course of an address to the jury, it is the duty of the trial judge to take remedial action, generally by giving a specific jury direction: Dudgeon v HM Advocate 1988 SCCR 147 at 152. On appeal on the basis that an inappropriate comment prejudiced the accused and thereby rendered his trial unfair, the issues will be whether the prejudice was capable of being cured by an adequate direction and, if so, whether an adequate direction was given: Ross v HM Advocate 1994 SCCR 932 at 934.

[28] Just why the procurator fiscal depute chose to enter into an extended disquisition on his role as prosecutor is unclear. It certainly was unnecessary for him to do so. On one view, nothing that he said was strictly inaccurate. It was however superficial and simplistic. Had he left it at an observation on the role of the prosecutor, it may be that what the procurator fiscal depute said might not have attracted criticism. However, he went on to contrast his role with that of defence counsel. At that point the nature of his approach became potentially damaging. According to the procurator fiscal depute, if defence counsel "becomes aware that his client did commit a crime" (whatever precisely that might mean) "he is perfectly entitled to carry on defending him and to put the Crown evidence to the test". What is there being said to the jury is that, in contrast to the Crown, the defence may continue to act when the defence knows the case that it is putting forward is unfounded in fact. The distinction as between putting the Crown evidence to the test (the expression used by the procurator fiscal depute) and putting forward a false case, while readily apparent to a professional audience, is likely to have been lost on a lay jury, in the absence of further elaboration (of which there was none). It may be thought improper for the procurator fiscal depute to have allocated to himself a position of moral superiority. However, the prejudice stemming from the depute's remarks lies in the aspersions that were cast, at least by implication, on defence counsel and, by association, the appellant.

[29] Significantly, these remarks by the procurator fiscal depute about the respective roles of the prosecution and the defence did not stand alone. The procurator fiscal depute emphasised that the appellant had not given evidence at trial. That was true, in the sense that the appellant had not gone into the witness box, although Mr Moggach submitted that it was not entirely fair to make anything of that given that the facts were essentially uncontroversial and that the essence of the appellant's account had been put before the jury by way of joint minute. However, the procurator fiscal depute did not confine himself to observing that the appellant had not gone into the witness box. At page 27 and 28 of the transcript of his address to the jury there is this:

"So that's what the civilian witnesses have told us. What is Mr Morrison's position about all of this? ... Well, we don't yet know. We haven't heard from Mr Morrison, so we don't know what his position will be ... what it does mean is I have to guess a little bit as to what the defence are going to say."

 

That was simply not so. As is clear from his address to the jury and as the advocate depute conceded, the procurator fiscal depute fully understood the position that had been put forward on behalf of the appellant. After some brief obfuscatory speculation about the possibilities of the appellant's vehicle having broken down or its being "a particularly puny lorry" (neither of which had ever been suggested in evidence), the procurator fiscal depute very specifically and fully addressed what was the appellant's response to the Crown's allegation of a failure to take due care (transcript page 33, line 11 to page 43, line 2). For present purposes the importance of the procurator fiscal depute's remarks at pages 27 and 28 of the transcript and in particular: "We haven't heard from Mr Morrison, so we don't know what his position will be", is that in those remarks there is ascribed to the appellant a less than straightforward approach by way of defence. That is more or less stated in terms at page 40, line 3 of the transcript where the procurator fiscal depute is recorded as saying:

"You might be left wondering whether, to an extent, blaming it on [Crown witness 6] was Mr Morrison's position at the outset or if this is something that occurred maybe half way through the trial once we had heard from her."

 

In the words of Mr Moggach, the suggestion made by the procurator fiscal depute was that the appellant was "making it up as he went along". Then there is a reference to Mr Moggach being "a master of his craft"; which Mr Moggach described as a "back-handed compliment", in other words a compliment which is so phrased as to imply deprecation. The context is that the procurator fiscal depute, who has said that he is obliged to "guess a little bit as to what the defence are going to say" guarantees that "whatever Mr Moggach says, it's going to be masterful". The clear implication is that the appellant is relying on the "craft" of his counsel rather than on the merits of his case, it being borne in mind that the procurator fiscal depute set the scene by stating at the beginning of his address that if Mr Moggach became aware that the appellant had committed a crime "he is perfectly entitled to carry on defending him".

[30] Mr Moggach submitted that the effect of the procurator fiscal depute's remarks was to so undermine the position of the defence that the jury was being invited to disregard what he, as defence counsel, would have to say. It was his impression during his address to the jury that they were from the outset very unreceptive to his submissions. That being so, the prejudice to the appellant simply could not be remedied by anything said by the sheriff after Mr Moggach completed his address.

[31] In our opinion that may be going too far. However, we do consider that by his remarks the procurator fiscal depute had denigrated the defence position in a way that was improper and which was prejudicial to the appellant. Action was required on the part of the sheriff. We acknowledge that the sheriff's task in endeavouring to deal with the problems created by the procurator fiscal depute was not an easy one but, the sheriff's charge to the jury failed completely to engage with the specific problems presented by the procurator fiscal depute's address. It is a conventional charge in the most general of terms without a hint from the sheriff that he appreciated and was attempting to address those problems. In so far as these remarks tilted the balance as between Crown and defence that is required for a fair trial, the sheriff did nothing to attempt to restore that balance.

[32] Mr Moggach made little of the procurator fiscal depute saying that he "should warn juries a little about the sheriff's charge" beyond describing it as curious. We agree that it was curious but, more than that, we consider it to have been an improper intrusion into what was the exclusive role of the sheriff, that is giving the jury what he regarded as being the necessary directions in law. It was potentially confusing for the jury. It should have been corrected by the sheriff. It was not.

[33] The advocate depute accepted that the procurator fiscal depute's giving his personal views about the not proven verdict was improper but he suggested they might be seen as simply inviting the jury to resolve the issue in the case sharply with either a guilty or not guilty verdict. We agree that the remarks were improper. As the law currently stands, three verdicts are available to a Scottish jury. It was within that framework that this jury was going to be asked to return a verdict. The procurator fiscal depute's personal view that this framework was "a historical hangover" was neither here nor there. What the procurator fiscal depute was doing was attempting to close off a verdict which the jury was entitled to reach. His comment that "it's a historical hangover which, as you may be aware, the Scottish Parliament is currently debating actually abolishing", was in any event inaccurate. This obvious transgression of propriety - with potentially important consequences was something which could have been corrected by the sheriff relatively easily. We do not consider that that was what the sheriff did. He contented himself with the entirely general conventional direction:

"As has already been mentioned, there are three verdicts you can come to on the charge; not guilty, not proven or guilty. Not guilty and not proven have the same effect, acquittal. An accused acquitted of a charge can't be prosecuted on it again."

 

A much firmer direction, disapproving the procurator fiscal depute's remarks was patently required.

[34] The advocate depute also accepted that the reference by the procurator fiscal depute in his address to the feelings and sentiments of the deceased's husband had been improper. The procurator fiscal depute said this:

"How would you feel, ladies and gentlemen, if you were [the deceased's husband]? He's been sat quietly here through much of this trial. He should be looking ahead to Christmas with his wife ... right now. Maybe if you try and put yourself in his shoes, maybe you'll conclude that if you had been Mr Morrison what you would have done is turn left [and travel to the next roundabout with a view to using it to get access to the southbound carriageway]."

 

These remarks were plainly irrelevant to a consideration of whether the appellant had been at fault and in so far as they sought to recruit the jury's sympathy for the deceased's husband in his loss and bereavement as an element in the Crown case the procurator fiscal depute was acting in a grossly improper manner which required emphatic action by the sheriff. However, the sheriff did not address this matter in his charge other than, in terms which were essentially conventional.

"You must also avoid irrelevant things when considering the evidence., It's important in every case that any jury reaches a verdict on the basis of the evidence and reasonable inferences from it. In this case, which had tragic consequences, that it particularly important. I am sure I speak for all of us when I say we sympathise with [the deceased's husband, family and friends]. Some of the evidence we have heard in this case was harrowing, I know that parts of it were disturbing, but, as a jury, you cannot be swayed by your emotions or by your prejudices, or by any that have been on display in the case. You cannot speculate, you cannot guess, and if you feel sorry for [the deceased, her family], Mr Morrison or any of the witnesses in the case, you have to put that to one side and forget about that in your deliberations as a jury."

 

In our view, that fails to address the fact that in his address to the jury the procurator fiscal depute had expressly and culpably invited the jury to do the contrary.

 

Second Ground of Appeal - Failure to give appropriate direction on a mixed statement

[35] As the advocate depute recognised when he came to consider the second ground of appeal, the sheriff apparently failed to understand the significance of the evidence contained in paragraph 4 of the joint minute. He certainly failed to give the necessary direction about that evidence. The statement given by the appellant to the police immediately after the accident, as recorded in the joint minute, was admissible evidence, both for the Crown and for the defence in that it was a "mixed" statement, as discussed in McCutcheon v HM Advocate 2002 SCCR 101. The sheriff should have explained that to the jury. He did not do so. Rather, in relation to a previous inconsistent statement made by Crown witness 4, he said this:

"Now, legally, evidence about an earlier statement is allowed only for a limited purpose. It is only relevant as to your decision on a witness's credibility and reliability. It is not evidence of the truth of the earlier statement."

 

While that was an accurate direction in relation to its particular context it means that the sheriff did tell the jury that "an earlier statement" is not evidence. No doubt, the sheriff did not intend what he said in relation to the previous statement by Crown witness 4 to apply to what appears in paragraph 4 of the joint minute, but in relation to the defence case he said this:

"I want to turn to the defence, briefly. In this case no evidence has been led by the defence. Mr Morrison has not given evidence. But remember, he does not need to prove his innocence, that's presumed for the purposes of the case. He is quite entitled to leave the Crown to try and prove his guilt. That is why the word 'trial' comes around. You cannot draw any adverse inference at all from the fact that Mr Morrison did not give any evidence."

 

While it may be understandable why the sheriff said what he did, it is not correct to say that "no evidence has been led by the defence". The joint minute was as much a defence document as it was a Crown document. It included admissions by the appellant which could be relied on as part of the Crown case: that the appellant was the driver of the lorry in question and that he was aware of the size of his vehicle. However, it also included an explanation, which if accepted, might provide the appellant with a defence to the charge: that the appellant was a careful driver who had never been involved in a crash or claim and that there was "a big enough gap" and "plenty of time". Even if the procurator fiscal depute had not made as much as he did about the appellant not having given evidence, it was incumbent upon the sheriff to make clear to the jury that the appellant's statement to the police was available in full to support the defence case. We see the failure to give such a direction and the positive misdirection that no evidence had been led by the defence, also to have been material.

 

Third Ground of Appeal - Failure to give a direction on the status of the Highway Code

[36] Turning to the third ground of appeal, we agree with Mr Moggach's submission that, in the circumstances of this case, it was incumbent upon the sheriff to direct the jury on the meaning of rule 173 of the Highway Code and, having regard to the terms of s38(7) of the Road Traffic Act 1988, in what way they were entitled to use the rule in coming to their verdict. The accident investigators had been asked about the rule in the course of giving their evidence and in the course of his address to the jury, the procurator fiscal depute had asserted that the appellant had deliberately disregarded the rule. In these circumstances, the sheriff should have directed the jury on the meaning of the rule and such legal effects as might flow from its non-observance. This he did not do.

 

Fourth Ground of Appeal - Failure to give an adequate direction on use of expert evidence

[37] The fourth ground of appeal is that the sheriff failed to direct the jury about the use of opinion evidence in the case and in particular how they should consider the evidence of the two accident investigators and that of the witnesses who gave evidence as to what was disclosed by the tachography. The sheriff had confined himself to what the advocate depute had described as a "rudimentary direction" in these terms:

"What is, however, vitally important, is that you judge the evidence of all the witnesses in the same way. So it does not matter whether the witness was a police officer, or a man in the street, or someone who professes to be an expert, you've got to judge the evidence of each of these witnesses exactly the same way and be consistent."

 

That, argued Mr Moggach was inadequate. We agree. Where opinion evidence has been led from a skilled witness, it is generally necessary to explain to the jury how they are to evaluate such evidence and how it might be used in the determination of the issues in the case. Here the sheriff did not do that. The only direction that he did give in relation to the expert witnesses was addressed to another matter, the assessment of their credibility and reliability. That said, we are not persuaded that the sheriff's failure to give a direction was material. At least by the end of cross-examination of the experts, there did not appear to be very much in controversy. This is not a case where different experts gave conflicting evidence. We have difficulty in seeing prejudice as having arisen from the sheriff's failure to give the appropriate direction.

[38] However, that reservation apart, we are well satisfied that the other grounds of appeal, taken at very least cumulatively, are well-founded and that the conviction must be quashed.