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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Wheatley
Lord Mackay of DrumadoonDrumadoon
Revised by M of D 25 August 2008
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[2008]HCJAC 52
Appeal No: XC347/04
OPINION OF THE COURT
delivered by LORD OSBORNE
APPEAL
by
KEVIN JAMES GIBSON
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: Shead, Mackenzie; Gillespie MacAndrew
Alt: Ogg, Q.C., A.D.; Crown Agent
25 September 2008
The background
circumstances
[1] On 16
April 2004,
at the High Court in Edinburgh, the appellant was convicted in
respect of charges (1), (2) and (3) of the indictment which he faced, subject
to certain deletions and amendments. The
terms of those charges, in the form in which the convictions were recorded,
were as follows:
"(1) between
13 June 2003 and 15 July 2003, both dates inclusive, at Dunedin Harbour Hostel,
4 Parliament Street, Edinburgh, you did assault Timothy Simon Wallace, born 8
November 1978, late of 192 Gala Park, Galashiels, and did on various occasions
repeatedly punch and kick him on the head and body, repeatedly stamp on his
head and body, repeatedly strike him with a belt, compress his neck by bodily
pressure or other means, throw at him a kettle containing boiling water, all to
his severe injury and you did thereafter fail to obtain medical assistance for
him and he died as a consequence of said injuries at and you did murder
him;
(2) between
14 July and 15 July 2003, both dates inclusive, at Dunedin Harbour Hostel, 4
Parliament Street and elsewhere in Edinburgh, you having committed the crime
libelled in charge (1) hereof and being conscious of your guilt in respect
thereof did place the body of Timothy Simon Wallace, born 8 November 1978,
late of 192 Gala Park, Galashiels, then deceased, into a suitcase weighed down
with bricks or similar objects, convey and deposit same in the Water of Leith
near Coburg Street Bridge, Edinburgh, or elsewhere in Edinburgh, and all this
you did with intent to conceal or destroy evidence in respect of said crime and
to avoid detection, arrest and prosecution in respect of said crime and with
intent to defeat the ends of justice and you did attempt to defeat the ends of
justice; and
(3) on
the dates specified in column I of the Schedule attached hereto at the premises
specified in column II of the Schedule you did pretend to employees specified
in column III of said Schedule that you were Timothy Simon Wallace residing at
192 Gala Park, Galashiels and were entitled to income support in said name, the
truth being as you were well aware that you were not said person and were not
so entitled, and you did thereby induce said employees to deliver to you in
exchange for foils from a benefit book belonging to said Timothy Simon Wallace
payment to the value specified in column IV of said Schedule amounting in cumulo to £208.02 and you did thereby
obtain £208.02 by fraud."
[2] On 16 April
2004, the trial judge sentenced the appellant in respect of charge (1) to
life imprisonment, with a punishment part of 15 years; in respect of charge (2) to imprisonment for
5 years; and in respect of charge (3) to
imprisonment for a period of 1 year;
said periods of imprisonment were ordered to run concurrently,
commencing from the date of their imposition.
[3] On 1
September 2004, the appellant lodged a note of appeal against conviction containing
three grounds of appeal. Since, at the
outset of the hearing before us, it was indicated on behalf of the appellant
that ground 2 was not to be argued, it is necessary only to notice grounds 1
and 3. They are in the following terms:
"1. The
appellant appeared on indictment on a murder charge at Edinburgh High Court for
trial. He was represented by senior and
junior counsel. Evidence was led on
behalf of the Crown from a large number of witnesses. On the eleventh day of evidence namely 1
April 2004
senior and junior counsel withdrew from acting as did the agents. New legal representatives were put in place
and on 2 April 2004 a motion on behalf of the appellant to desert the
indictment pro loco et tempore was
refused. The trial was adjourned until 7
April 2004
to allow the appellant's legal representatives to listen to the court tapes of
the evidence and to take whatever other steps were necessary to be in a
position to represent the appellant for the remainder of the trial.
It
is submitted that the court erred in refusing the motion to desert pro loco et tempore. It is submitted that this motion should have
been granted allowing the Crown serve (sic)
a fresh indictment.
It
is submitted that the appellant did not obtain a fair trial. For the trial to continue would involve the
appellant's new legal representatives becoming fully informed of what had
already taken place. Even if that could
be achieved it is submitted that the new legal representatives were denied the
opportunity to observe the witnesses who had already given evidence in order to
comment on their manner and demeanour in which they gave that evidence to the
jury. One of the main issues in this
case was the reliability and credibility of some of the civilian Crown
witnesses.
In
these circumstances it is submitted that there has been a miscarriage of
justice.
...
3. It
is submitted that the learned trial judge misdirected the jury when directing
them on the evidence that they could rely upon to bring back a verdict of
guilty of murder. It is submitted that
where it is stated at page 22 lines 13-18 inclusive in the judge's charge
to the jury that the evidence of the appellant cashing the deceased's benefit
book was relevant to the question of who was responsible for killing the
deceased and could be taken into account was a material misdirection. It is therefore submitted that there has been
a miscarriage of justice."
Submissions of the
appellant
[4] At the outset
of his submissions, counsel for the appellant indicated that a petition for the
recovery of documents and a devolution issue minute were to be lodged in this
case, in which
the trial had taken
place had been determined before the
decisions of the Judicial Committee of the Privy Council in Holland v H.M. Advocate 2005 SCCR 417 and Sinclair v H.M. Advocate
2005 SCCR 446 had been issued. It
was being alleged that the Crown had failed to fully disclose the witness
statements which
have been available throughoutin the
present case. The implications of those
matters could not, at present, be dealt with, since the decision of the
Judicial Committee of the Privy Council in McDonald
v H.M. Advocate [2007] HCJAC 752008 S.C.C.R. 154,
which would bear on these matters, was awaited.
Accordingly, while the existing grounds of appeal could be argued and a
decision reached on them, the appeal as a whole could not be determined. Counsel also explained that he did not intend
to argue ground of appeal 2.
[5] Turning to
ground of appeal 1, counsel explained that, on 1 April 2004, senior and junior counsel then
acting for the appellant had withdrawn from acting, followed by their instructing
solicitors. Thereafter fresh legal
representatives commenced acting on behalf of the appellant and, on 2
April 2004,
a motion on behalf of the appellant for the desertion of the indictment pro loco et tempore was made. In his report, the trial judge said that he
was aware, both from
his own experience and that of colleagues, that the practice of
dispensing with legal representation after a trial had been underway for some
time was becoming more and more frequent.
There was perhaps a perception that some advantage might be gained by an
accused person from such a manoeuvre. In
these circumstances, he took the view that a point of general importance might
arise in connection with the foregoing motion.
Accordingly, he requested the assistance of two other judges in dealing
with the appellant's motion for desertion.
Thus, on 2 April 2004 the motion had been heard before the
trial judge and the two consulted judges, Lords Johnston and
Lord Reed. A transcript of the
proceedings on that occasion was available.
Counsel went on to refer in detail to the submissions that had been made
on that occasion. As appeared from page
12 of the transcript, the Crown had relied upon Venters v H.M. Advocate
1999 S.C.C.R. 441. It was evident from
page 13 of the transcript that the Advocate depute had been under a
misapprehension as to the factual situation;
he had indicated to the court that the then accused had "dispensed with
the services of solicitors who have represented him from the time that he was
in police custody ... He also dispensed
with the services of eminent senior counsel."
That was a misapprehension. The
fact was that counsel and, after them, the solicitors hitherto acting had
withdrawn from acting. That did not
reflect a decision by the appellant. The
same misapprehension was evident from the observation of the trial judge at
page 19 of his report. Thus the context
in which the decision on desertion had been taken was "unhappy" because of
erroneous perceptions. However, on 2 April 2004 the
court court then had
not made enquiries into the circumstances in which the appellant's originalthen
legal advisers had withdrawn from acting.
[6] At this stage
in his submissions, counsel for the appellant submitted that the question of
the desertion of the trial pro loco et
tempore had not been a matter for the exercise of a discretionatheir discretion by the
larger court. The question was whether
the accused could or could not receive a fair trial, the right to which was
absolute. It was not correct to suppose
that what that court should have been involved in was a balancing
exercise. The question truly was whether
desertion was necessary to secure a fair trial.
The case of Venters v H.M. Advocate was of little assistance, since the facts were
rather different from those of the present case. When pressed by this court in relation to the
submission which he had just made, that the matter had not been one for the
exercise of the court's discretion, and on being referred to the observations
to the effect that it was in paragraph 18.21 of Renton & Brown's Criminal Procedure 6th edition, counsel
appeared to eschew suggesting that the authorities there relied upon, Hume, ii.276, and Allison, ii.98 and 355, were wrong.
Reverting to the transcript of the proceedings on 2
April 2004,
counsel referred to the Crown submission that before desertion should be granted
there ought to be "further enquiry"; certain
of the arguments deployed by the Crown, narrated at page 15 of the transcript,
were irrelevant or of limited relevance.
It had been wrong for the Crown to argue that the appellant had been
seeking to rely upon a situation manufactured by himself. Counsel appeared to acknowledge, however,
that the Crown's practical difficulties of remounting the trial were relevant. Nevertheless, if the Crown might have faced
difficulties in bringing reluctant witnesses to court, it had to be borne in
mind that those witnesses had, in many cases, given their evidence; in those circumstances section 259 of the
Criminal Procedure (Scotland) Act 1995 could be relied upon. The Crown had contended that, in the absence
of a clear explanation as to why the appellant would not be afforded a fair
trial, the court ought to refuse the desertion sought. However, that position did not recognise the
difficulty that the appellant's fresh legal advisers had not had the
opportunity of observing the demeanour of the witnesses who had given their
evidence at the trial.
[7] The decision
of the court to refuse desertion was explained at pages 20-21 of the transcript
of the proceedings on 2 April 2004 and at page 21 of the trial judge's
report. It was evident from the latter
document that the court had agreed with the submissions made by the Advocate
depute on that occasion. That had
involved agreement with the Crown contention that there had been a grave risk
that a further trial could simply not be mounted. It was submitted that that was a "forensic
overstatement". At this point in the
discussion of the appeal, reference was made by the Court to Article 6 of the
European Convention on Human Rights and Fundamental Freedoms and the commentary
upon it in Renton & Brown's Criminal
Procedure Legislation volume II at pages A.1058/22/4.
[8] Counsel went
on to rely upon H.M. Advocate v Fleming and Brady 2005 S.C.C.R. 324 at
pages 328 and following, particularly paragraph [33]. A trial ought to be deserted if there was a
material risk of prejudice to the accused in its continuance. That test had been met in the present
case. It might be the case that a trial
might require to be deserted, on the basis of information available to the
court at the time when the question arose, although, in the end, if that were
not done, there might not be a miscarriage of justice. The position was that the threshold for a decision
in favour of desertion was not high, as appeared from Gray and O'Rourke v H.M.
Advocate 2005 S.C.C.R. 104 at paragraph [4]. Counsel submitted that, in the present case,
the trial ought to have been deserted.
The prejudice to the appellant had been obvious and "extreme". The appellant's fresh legal advisers had not
seen the witnesses give their evidence, which had put them at a serious
disadvantage. It was important to
recognise that there had been a serious issue as to whether the appellant should
be advised to give evidence. The
formulation of such advice without an awareness of the demeanour of the
witnesses who had given evidence against him would inevitably have been
unsatisfactory. The Crown had
exaggerated the difficulties of mounting the trial a second time. If the witnesses had been got to court once,
they could be got to court again. The
issue had not been approached on the right footing. In any event, it might be that the matter
should have been approached on the basis of "appearances", that is to say, the
impression of the well- informed
and fair- minded
observer. In this connection reference
was made to Bullock v H.M. Advocate 1999 S.C.C.R. 492 and Mason and McDougall v H.M. Advocate (unreported:
27 May 2008). Justice had not been
seen to be done in the present case. It
had not been a question of balancing interests, but, if it had been, the
balance was all in one direction, in favour of the appellant. Counsel attempted at one point to rely upon H.M. Advocate v McGill 1997 S.C.C.R. 230, a case
concerned with oppression on the ground of delay. He did not elaborate the contention he was
attempting to make, which we did not understand.
[9] The essential
submission for the appellant was that the conviction should be set aside because
the court's refusal to desert the
trial had
created actual
of the prejudice that had come into being to a
fair trial for the appellantt,
resulting from the refusal to desert the trial. It had been wrong for the court making that
decision to rely on all of the points made by the Crown, which were without
substantial merit. Further, the court
had been misled into approaching the issue in an erroneous manner. A proper approach to the matter would have
involved the examination of "appearances".
If one looked at the substance of the prejudice involved, it was extreme
in the present case.
[10] Counsel then
turned to make submissions in support of ground of appeal 3. It was contended that the trial judge had
misdirected the jury at page 22, lines 13-18 of his charge in the respect
indicated in this ground of appeal. In
the circumstances here, the appellant's actions in availing himself of the
benefits that belonged to the deceased had no rational connection with the killing. There had been no dispute that the appellant
had done what was alleged in charge (3).
The issue in relation to the charge of murder had been whether the
appellant had been responsible for inflicting the injuries which had proved to
be fatal. The fraud alleged in charge
(3) had no bearing upon that matter.
The submissions of the
Crown
[11] The Advocate
depute submitted that the appeal, so far as it was based upon the contention in
ground of appeal 1, proceeded upon a fundamental misunderstanding regarding
prejudice. Before prejudice was
relevant, it had to be prejudice to the fairness of the trial. The solicitor advocate who appeared for the
appellant on 2 April 2004 had agreed that what the court was
engaged in on that occasion was a discretionary balancing exercise, as appeared
from his observations at page 7 of the relevant transcript. It was submitted that there had in fact been
no prejudice to a fair trial arising out of the fact that of a
successor solicitor advocate had defended the appellant during conducting
the remainder of the trial.
That
solicitor advocateHe had had the opportunity, afforded
by the adjournment given by the court, to listen to the court's tapes of the
evidence which had been given before he came into the case. That would have gone some way to conveying to
him the demeanour displayed by the witnesses who gave that evidence. In any event, the appellant himself had sat
through all the stages of the trial and he had been able to observe the
demeanour of the witnesses and would have been able to communicate his
impressions to his new solicitor advocate.
Furthermore, that solicitor advocate had had the opportunity of
consulting with the solicitors who had formerly acted for the appellant and his
former senior counsel regarding the demeanour of witnesses. In any event, there was no suggestion made in
this case that there was some particular witness whose demeanour might be
crucial. Counsel for the appellant had
not pointed to any such witnesses, nor had he cited any case decided by the
European Court of Human Rights in which it was said that a trial could not be
fair if a successor counsel had not had the opportunity to have seen the
witnesses. In H.M. Advocate v Fleming,
at paragraph [33], it was said that a trial judge should desert a trial only if
the fairness of the trial had been prejudiced, or if there was at least a
material risk that it might have been.
That was not the case here. The
solicitor advocate who had agreed to represent the appellant, in the event of
desertion being refused, had been content to do that. There was no particular difficulty about his
giving advice to the appellant as to whether he should give evidence or
not. There had been a special defence of
incrimination, in consequence of which it was almost inevitable that the
appellant would have required to have given evidence. The fact was that no practical prejudice to
the fairness of the trial had been identified by counsel for the
appellant. In any event, there was a
presumption in law that a trial, once commenced, should run to its end,
enshrined in section 91 of the 1995 Act.
In the whole circumstances, ground of appeal 1 should be rejected.
[12] Turning to
ground of appeal 3, the Advocate depute submitted that it possessed no
merit. The passage in the charge, which
was the focus of criticism, appeared at pages 21 and 22 of the transcript of
it. In that passage the trial judge had
indicted that evidence relating to one charge might be relevant to more than
one charge, which was unexceptionable.
At page 22, the trial judge had said that the jury were entitled to use
the evidence relating to the disposal of the body, led in support of charge (2)
and not disputed, to consider whether or not the appellant had been responsible
for the killing, provided that they considered that evidence was relevant to
that question. He also directed the jury
that the same applied to the evidence of the use of the deceased's benefit book
to obtain cash, which was the subject of charge (3). What he said was:
"If you consider that to be relevant
to the question of who was responsible for the killing then you may take it
into account."
That was beyond criticism.
The use of that evidence was left entirely to the jury, if they
considered it to be relevant to the question raised by charge (1). This ground of appeal possessed no merit.
The decision
[13] We deal first
with the issues raised in ground of appeal 1.
In connection with that ground of appeal there was some discussion
before us as to what approach ought to have been adopted by the court which dealt
with the application for desertion pro
loco et tempore on 2 April 2004, consisting of the trial judge and the two
consulted judges. Counsel for the
appellant vacillated between the contention that the exercise in which they had
been engaged was not a discretionary exercise at all, the only criterion being
whether the accused could or could not receive a fair trial; and the contention that the appellant's
application for desertion pro loco et
tempore did involve the exercise of a discretion. In our opinion, it is quite clear that the
granting or refusal of a motion to desert a trial diet pro loco et tempore is a matter for the exercise of the discretion
of the court. That is amply vouched by
what is said in Renton & Brown at
paragraph 18.21 and in the authorities there cited. That view is confirmed by what was said in H.M. Advocate v Fleming, at paragraph [33], by Lord Justice Clerk (Gill). There he said:
"When a judge has to decide whether
or not to desert a trial, he bases his decision on such facts as are known to
him at that stage (Donaldson v Kelly at paragraph 18). He should desert the trial if the fairness of
it has been prejudiced or if there is at least a material risk that it may have
been."
[14] In this case,
of course, the court that dealt with the application for desertion on 2
April 2004
exercised their discretion against desertion.
However, we ourselves are now involved in the consideration of certain
grounds of appeal against the conviction which followed the refusal of
desertion pro loco et tempore. That being so, the question for this court
now is quite different from that which faced the court on 2 April
2004. We have to determine in this appeal under
section 106(3) of the 1995 Act whether a miscarriage of justice has come into being
in consequence of the refusal of the application for desertion pro loco et tempore. That is the only question which we have to
address. We are not therefore directly
involved in a review of their exercise of their discretion.
[15] In the debate
before us, counsel for the appellant acknowledged that the question was whether
the appellant's trial had been rendered unfair by virtue of the fact that his
solicitor advocate, who came to represent him following the withdrawal of his
former counsel, had not had the opportunity personally to observe the demeanour
of Crown witnesses as they gave their evidence in court prior to his
involvement with the case. In
approaching this issue, it has to be borne in mind that, following the refusal
of the application for desertion, the court afforded the solicitor advocate
sufficient time to enable him to acquaint himself with the details of the case
and, in particular, to listen to the court tapes of the evidence as it was
given. Accordingly, the point raised by
counsel for the appellant comes to focus upon whether the fairness of the trial
was prejudiced by the fact that the solicitor advocate did not actually see the
witnesses giving their evidence. We have
come to the conclusion that it was not prejudiced by that circumstance. The appellant's solicitor advocate had the
opportunity to consult with the appellant himself, who had, of course, sat
throughout the whole trial listening to the witnesses who gave evidence against
him and observing their demeanour.
Furthermore, the solicitor advocate had the opportunity to consult with
the solicitors and counsel who had formerly represented the appellant in the
earlier part of the trial. In these
circumstances we are not persuaded that there was any significant prejudice to the
fairness of the trial involved in the situation described. No authority was cited to us to suggest that
a trial could nevernot
be fair where, following a change of representation, the succeeding advocate
had not had the opportunity to actually to see witnesses give their evidence. We are reinforced in the conclusion which we
have reached by the circumstance that it was not said on behalf of the
appellant that there was any particular witness whose demeanour was of unusual
importance in the evaluation of their evidence.
In these circumstances, we do not consider that the refusal of the
application for desertion pro loco et
tempore has resulted in a miscarriage of justice. We therefore reject this ground of appeal.
[16] Before parting
with this aspect of the case, we think it right to observe that, to some
extent, we have been discommoded in our consideration of the issues arising out
of ground of appeal 1 by the absence of an Opinion of the Court following upon
the hearing on 2 April 2004. It is true that
each of the three judges involved in that hearing has written a note concerning
what occurred and their reasons for the decision which they took. However, we think that it would have been
preferable if, following upon that hearing, an Opinion of the Court had been
issued explaining the reasons for the decision then taken. That would have conduced to clarity and
convenience.
[17] In evaluating
ground of appeal 3, we think that it is necessary to notice all of what was
said by the trial judge on pages 21 to 22 of the transcript of his charge. The relevant passage begins at line 16 on
page 21 and is as follows:
"The next point I wish to make,
ladies and gentlemen, is again I am sure just a matter of common sense and it
is where there is more than one charge on an indictment you must consider and
treat each charge separately. That is to
say, there must be sufficient evidence on each charge before you can convict.
Now
that does not mean that one piece of evidence may not be relevant to more than
one charge, but what you cannot do is to say just because you are satisfied
that the accused is guilty of one charge he must be guilty of another. That is just common sense, I am sure you
think.
It
follows from that in this case that you may use the evidence of the disposal of
the body, led in support of charge (2) and not disputed, to consider whether or
not the accused was responsible for the killing if you consider that evidence
should be relevant to that question.
That is a matter for you.
The
same applies to the evidence of cashing the now deceased's benefit book which
was the subject of charge (3). If you
consider that to be relevant to the question of who was responsible for the
killing then you may take it into account."
[18] In this
passage, the trial judge repeatedly made plain to the jury that, if they
considered that evidence relating to one charge might be seen as relevant to
another, they were entitled to take that evidence into account in relation to
that other charge. What he said was
qualified by words to the effect that it was a matter for the jury to consider
whether such evidence could be relevant to such a question.
[19] While we
recognise that certain charges in an indictment might be so disparate that a reasonable jury could
not rationally suppose that evidence relating to one of those chargesthem
could not rationally be supposed to be
relevant by any reasonable jury to another charge, we do not
consider that that is the
positiontrue in this case. In our opinion the jury were quite entitled
to consider the significance of evidence led in relation to charges (2) and (3)
in relation to the issues raised by charge (1).
In these circumstances, we conclude that what the trial judge said to
the jury in relation to these matters did not constitute misdirection. Accordingly, we reject this ground of appeal
also.
[20] For the
reasons already foreshadowed, we shall not determine the present appeal. We shall adjourn it to a procedural hearing
to be held as soon as the decision of the Judicial Committee of the Privy
Council in the case of McDonald v H.M. Advocate becomes available.
