Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 123

HCA/2015/003573/XC

Lord Justice Clerk

Lord Menzies

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

ALAN CARMICHAEL

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Paterson, sol adv; Paterson Bell, Edinburgh for Allan Kerr, Solicitor, Kilmarnock

Respondent:  A Brown, QC, AD; Crown Agent

20 September 2016

[1]        The appellant was convicted after trial of assault and robbery.  One of the witnesses at the trial, Craig Ferguson, was an acquaintance of the appellant, and was incriminated by him.  In examination-in-chief his initial position was that he and the appellant had walked home together from a nightclub and that nothing untoward had happened.  He was confronted with the contents of a police statement in which he had given a different account.  The sheriff interrupted on three occasions to remind the witness that he was on oath and obliged to tell the truth.  Eventually, the sheriff considered that the position of the witness was becoming untenable, he having blatantly contradicted himself on several occasions.  The sheriff accordingly asked the jury to retire and warned the witness that he was at risk of being found to be prevaricating, and arranged for the witness to be detained in the cells pending the receipt of legal advice.  Before the trial recommenced, the sheriff indicated that neither the Crown nor the defence should refer before the jury to the warning which had been given to the witness in their absence.  The witness later returned to the witness box, and told the sheriff that he had felt intimidated by the presence of certain individuals in the public benches.  The sheriff therefore cleared the court and the witness resumed his evidence.  He then gave evidence incriminatory of the accused.

[2]        He was not challenged about the fact that the sheriff had required to warn him before the jury on three prior occasions; and the agent for the appellant made no motion to the sheriff for permission to challenge him on the warning which he had been given.

[3]        In this appeal it is submitted that it would have been perfectly proper for the agent to ask questions regarding the warning, with the suggestion that his change of heart came about in order to avoid a potential finding of prevarication or perjury.  It was inappropriate for the sheriff to restrict cross examination in this way, “and there has been a miscarriage of justice”.

[4]        The procedure adopted by the sheriff in asking the jury to retire before raising the matter with the witness, and giving the witness the opportunity to seek legal advice, and to resume his evidence in due course is all unexceptional, and accords with the procedures described in Robertson v Gough 2008 JC 146, in the opinion of the Lord Justice Clerk (Gill) from para 83 to 100.  The potential prejudicial effect of any such action being taken by the judge, or the prosecutor, in the presence of the jury is clearly identified in the Hutchison v HMA 1984 SLT 233.  The sheriff was therefore correct to proceed in the circumspect manner in which he did; nor could he be faulted for seeking to prevent any inappropriate comment by the prosecutor.  The matter is different, however, when it comes to the defence.  In Gall v HMA 1992 JC 115, a witness had been detained after the close of the previous day’s proceedings, charged with perjury, and held in custody overnight, all on the instructions of the advocate depute.  The following morning, he was brought back to court, having received legal advice.  The trial judge warned the witness, outwith the presence of the jury, that he was considering holding him in contempt.  The advocate depute then made a motion for the witness to be recalled.  The motion was granted by the trial judge, who advised the witness that he was being given an opportunity to give further evidence.  He gave a different account from the one he had given previously, and was cross-examined as to the reasons for this change.  The effect of cross-examination was to disclose that he had been held in custody, charged with perjury and that morning warned by the trial judge about the risk of contempt.  It was argued that the trial judge had erred in allowing the witness to be recalled, and should have directed the jury to disregard the evidence of the witness in its entirety.  In dismissing this argument as unsound, the Lord Justice General, Lord Hope giving the opinion of the court said:

“A trial judge will only be justified in directing a jury to disregard the whole of a witness's evidence in such circumstances if he is satisfied that no reasonable jury, properly directed, could assess that evidence impartially in fairness to the accused.  It is hard to conceive of circumstances where questions put by the defence could ever lead to that result.  This is because questions put by the defence must be assumed to have been put in the interests of the accused.  An attack on the credibility of a Crown witness may include the putting of questions which, in fairness, could not properly be put to him by the Crown.  But if the defence chose to put questions of that kind, it must be assumed that this is because they wish them to be answered and accordingly that the evidence is evidence which they wish the jury to hear.  The situation in this case is entirely different from that which occurs where either the trial judge or the prosecutor says or does something in the presence of the jury which is likely to cause prejudice to a fair trial.”

[5]        We agree with the Crown’s written submission in this case that the rule preventing the judge or prosecutor acting in the presence of the jury on the potential prevarication or perjury by a witness is one which exists for the benefit of the defence.  If the agent or counsel for the accused considers that it is in his interests to explore the matter in cross-examination he is at liberty to do so.  The first question is therefore whether the sheriff prevented such cross-examination taking place.  The sheriff’s direction to parties was given immediately prior to the resumption of the evidence and was as follows

“…when the trial does resume in a few minutes’ time, neither Crown nor defence should refer the witness to the warning he’s been given outwith the presence of the jury, otherwise there’s little point in putting the jury out whilst we do that.”

The evidence then recommenced with further examination in chief, during which the witness gave the incriminatory evidence referred to above.  At the commencement of cross-examination, the solicitor for the appellant did not seek to address the sheriff in relation to his earlier comment.

[6]        We do not think that the sheriff’s comment that on the resumption of the case neither party should refer to what happened in the presence of the jury can properly be classed as a ruling that prevented cross-examination of the witness as to the reasons for the change in his evidence.  All the sheriff was seeking to do was ensure that when the jury returned to court nothing was said immediately about what had happened in their absence.  That did not mean that appropriate cross examination could not follow.  In any event, had the solicitor considered herself to be bound by the sheriff’s observation it was entirely open to her to seek to clarify the matter with the sheriff.  There is authority in the form of Gall that such questioning is entirely competent at the instance of the defence, as the solicitor should have known.  In any event, the witness was quite forcefully cross-examined to the effect that he had been the assailant, that the appellant had tried to stop him, and culminating in the question:

“You see, what I'm suggesting to you, Mr Ferguson, is that you were very much involved in this incident.  That's what I'm suggesting to you.  Is it the case, Mr Ferguson, that you are telling the ladies and gentlemen something because you're trying to remove yourself from this situation?   Answer – No”.

[6]        In these circumstances we agree with the Advocate Depute that additional cross-examination along the lines suggested would have done little to strengthen the defence position or undermine the Crown case.  Thus, even if we had agreed with the primary submission, we would have been unable to conclude that there had been a miscarriage of justice in the case.  The appeal will therefore be refused.