APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Carloway Lord Osborne	[2012] HCJAC 46 Appeal No: XC244/09 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST CONVICTION by WMD Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Shead, Lawrie; Drummond Miller LLP (for Allardice & Creegan, Dundee)

Alt: A Miller AD; Crown Agent

11 April 2012

1.                 General

[1] On 26 February 2009, at the High Court in Paisley, the appellant was found guilty of two charges as follows:

"(1) between 1 September 1971 and 31 August 2007...at...Renfrew... Barrhead and ... Isle of Islay and elsewhere in Scotland, on various occasions, the exact dates being to the Prosecutor unknown, you did assault [ISD], your wife...and did strike her on the head and body, punch her on the stomach whilst she was pregnant, seize her by the neck, throw her to the ground and brandish an axe or similar instrument...at her, all to her injury; ...and

(3) on 1 September 2007 at ... Isle of Islay, you did assault [ISD] your wife... and did order her to the bedroom, pursue her, and threaten her with violence, order her to change her clothing, forcibly remove her tights, order her to lie on the bed, demand that she have sexual intercourse with you, lift up her t-shirt, expose her breasts, force her legs apart, all to her injury and you did attempt to rape her".

On 26 March 2009 he was sentenced to one year's imprisonment on charge (1) and to three years' consecutive imprisonment on charge (3).

[2] On 21 August 2009 the appellant lodged a Note of Appeal complaining of defective legal representation under four sub-headings numbered (i) to (iv). On 2 November, following the receipt of the trial judge's report, the appellant withdrew grounds (iii) and (iv), which had been based on allegations of failure to cross-examine on particular points. Leave to appeal on grounds (i) and (ii) was granted at first sift on 27 October and the appellant was granted interim liberation on 10 December. An appeal hearing was fixed for 29 April 2010. Meantime, reports from the appellant's trial representatives were obtained.

[3] On 23 April 2010, the appellant unsuccessfully attempted to amend his Note of Appeal by adding a ground relative to oppressive conduct by the Crown in charging the appellant with raping the complainer when there was insufficient evidence to prove such an allegation. At the appeal hearing on 29 April, the appellant's counsel withdrew from acting and the diet was discharged, with hesitation, to allow the appellant to instruct new counsel.

[4] A further appeal hearing was fixed for 23 June 2010. On that date, the appellant stated that he was not insisting on any of his remaining grounds of appeal (i.e. (i) and (ii)). Rather, he wished to amend the Note of Appeal by adding grounds based in anticipation of the decision in Cadder v HM Advocate 2011 SC (UKSC) 13. He asked the court to delay disposing of his appeal pending that decision. The court discharged the diet once more. On 16 November 2010 the motion to amend was allowed and leave to appeal on the new grounds was granted at second sift on 16 February 2011. At a hearing on 15 April 2011, the court was advised by the appellant that the forthcoming decision in Birnie v HM Advocate (sub nom. Jude v HM Advocate) 2011 SCCR 300 might also have a bearing on the appellant's position and a further appeal hearing was postponed until that was available.

[5] When the case came before this court for a hearing, the grounds of appeal were solely that there had been a miscarriage of justice caused first by the Crown leading the evidence, and relying upon the content, of two interviews of the appellant by the police when he had not been afforded his right of access to a lawyer. A second cause of miscarriage was said to be that there had been a misdirection by the trial judge in failing to instruct the jury to disregard the content of the interviews.

2. The Evidence at Trial

[6] The issue at trial was focussed not on the identity of the perpetrator of the crimes alleged but upon whether these crimes had been committed at all. Indeed, in relation to charge (3), the appellant had lodged special defences of consent and self defence. He did not dispute that he was the only person who could have committed the crimes, if they had occurred.

[7] The primary evidence on charge (1) came from the complainer. The corroboration was provided by the daughter of the appellant and the complainer, namely IM, who spoke to her parents living together in Barrhead in the 1980s before moving to Islay. She gave evidence of: the appellant slapping the complainer on occasions; there being aggressive arguments between her parents, after which the complainer would have bruising, including fingertip bruises to the arms; sounds of the appellant's raised voice and of a person being hit during these episodes; and the complainer flinching with fear at the appellant's presence. The jury was appropriately directed that they required to accept both the complainer and her daughter for a conviction on this charge.

[8] On charge (3), there was again the primary evidence of the complainer. She spoke to being attacked in the manner libelled. She identified the appellant as the culprit. That identification was not challenged in cross-examination. There was, in addition, evidence from a daughter-in-law, namely FM, of the complainer's distress and state of undress after the episode. There was medical evidence from Dr JK about injuries on the complainer, notably bruising consistent with her account of assault. A police officer gave evidence about torn tights being found in the bedroom of the house and a pair of tracksuit trousers also having been discarded in the bedroom. There was blood on a bedspread found in the bedroom which, a forensic scientist confirmed, came from the complainer. There was also a note found by the police in the kitchen which read: "Goodbye, you bastards. This life is shite. All you have done is taken from me, never given me anything". There was testimony from IM that the complainer and the appellant separated after the incident. The jury were directed on this charge that they required to find the complainer both credible and reliable before they could convict and that they required to find corroboration.

[9] The appellant did not give evidence. However, the evidence of his two interviews with the police, conducted when the appellant was in detention, was adduced by the Crown. In these interviews, he stated that he had not assaulted the complainer in the manner alleged in charge (1). On charge (3), he said that the complainer had been the aggressor and had brandished a knife at him. He had done no more than grab and slap the complainer as a result. In the defence speech to the jury, it was specifically stated that the appellant accepted that he had assaulted the complainer in this relatively minor way but that this was in the context of her having threatened him with a knife.

3. The Submissions

[10] The appellant's contention was a straightforward one, following the new grounds of appeal, based upon Cadder (supra). The Crown's use of the content of the interview was ultra vires and rendered the trial unfair in Article 6 terms, in the absence of the appellant having been afforded his right of access to a lawyer as a detained suspect prior to being interviewed. Without the interview, there was insufficient evidence to convict on either charge and the convictions required to be quashed (Cadder (supra) Lord Hope at para [64]). The proposition that, in the context of a positive identification of the perpetrator, very little else was required was, it was said, erroneous. Reference was made to Kearney v HM Advocate [2007] HCJAC 3, Lord Johnston at [28] - [31] and Fox v HM Advocate 1998 JC 94. In any event had the interview been excluded, there was a real possibility that the jury might have reached a different verdict (McInnes v HM Advocate 2010 SC (UKSC) 28, Lord Hope at para [24], Lord Rodger at para [30] under reference to Stirland v Director of Public Prosecutions [1944] AC 315, Lord Brown at paras [35] and [38]; Geddes v HM Advocate [2012] HCJAC 8, Lord Emslie at para [16]). The court required to look at the evidence as led at the trial but excluding the impugned interview (Fraser v HM Advocate 2011 SC (UKSC) 113, Lord Hope at para [38]). It had to be assumed that the appellant's decision not to give evidence would have remained the same. The trial picture remained static, the only dynamic element being the removal of the impugned evidence. Had the interview been excluded, the appellant's speech to the jury about the absence of corroboration would have been strengthened. However, it was not submitted that, apart from that exclusion, the trial would have been any different.

[11] On the second ground, the contention was that the trial judge had misdirected the jury in a material manner (Murray v HM Advocate 2001 SCCR 114 at 119 and Touati v HM Advocate 2008 SCCR 211 LJG (Hamilton) at 229; cf Crozier v HM Advocate 2011 HCJAC 95). Had the interview been excluded, the trial judge would have had to have given directions on corroboration specific to the identification of the perpetrator.

[12] The Crown accepted that the evidence of the interviews was inadmissible in terms of Cadder (supra). However, there was sufficient evidence on charge (1) from the complainer and her daughter IM. The jury must have accepted their evidence, since they had been directed that, if they did not, the appellant required to be acquitted. On charge (3) the trial had been conducted on the basis that it was not disputed that, if the appellant had been assaulted, then it must have been by the appellant. There was sufficient evidence in the absence of the interviews, given that it was proved that the assault had occurred in the matrimonial home. There was no evidence of an intruder and the background history was of assaults by the appellant on the complainer. Where there was a clear identification, very little by way of corroboration was required (Ready v HM Advocate 2009 SCCR 380).

[13] The interviews had been referred to by both the Crown and the defence in their speeches. Although the Crown had relied upon the interviews in part to provide corroboration on charge (3), that was in the context of there being several other sources available. The Crown had not founded on the incriminatory elements of the interviews to any great extent and had asked the jury to reject the appellant's account, as given in the interviews, as untruthful in relation to what had happened. The defence had founded upon the content and had asked the jury to consider that the appellant's account was sufficient to raise a reasonable doubt. The defence had thus asked the jury to acquit the appellant on the basis of what he had said in his interviews.

[14] Crozier v HM Advocate (supra) determined the misdirection point against the appellant. Once the evidence had been adduced, there was no basis for the judge to direct the jury to disregard it.

4. Decision

[15] It is not disputed that the leading of the evidence of his interviews constituted a violation of the right of a detained suspect to have access to a lawyer implied in Article 6 of the European Convention. That is the effect of Salduz v Turkey [2008] 29 EHRR 19 as interpreted in Cadder v HM Advocate 2011 SC (UKSC) 13. The amendment of the grounds of appeal, allowed by the court on 16 November 2010, rendered the Cadder grounds "live", even although an objection to the evidence, taken at the time of the trial, could not have succeeded. The issue for this court is whether the violation resulted in a miscarriage of justice. In deciding that, the court requires to address the matters highlighted by Lord Hope in Cadder (supra at para [64]) of whether, without the interviews: (i) there was a sufficiency of evidence; and (ii) there was a real possibility that the jury would have arrived at a different verdict (see also McInnes v HM Advocate 2010 SC (UKSC) 28, Lord Hope at para [20]).

[16] There is little difficulty in holding that there remained a sufficiency of evidence even if the interviews had been removed from the trial equation. It is of some significance to observe that the focus of this trial was not on the identity of the perpetrator, but on whether the crimes had been committed. That factor introduces a degree of unreality into the submissions directed towards a different aspect on appeal. However, on charge (1), the evidence of the complainer was adequately corroborated by that of her daughter. Although sufficiency on charge (3) is more difficult to gauge, the question is whether the evidence of the complainer, that it was her husband who had assaulted her, was adequately corroborated by the various adminicles of evidence spoken to by other witnesses. In this connection, there does, of course, require to be corroborative testimony of adequate quality. It is said that, where there is a clear identification, "very little else is required". That form of expression is simply a shorthand version of the dictum of the Lord Justice General (Emslie), delivering the Opinion of the court, in Ralston v HM Advocate 1987 SCCR 467 (at 472) that:

"It has been said before in a number of cases that where one starts with an emphatic positive identification by one witness then very little else is required. The little else must of course be evidence that is consistent in all respects with the positive identification evidence which has been given. At the end of the day one must look at the whole evidence to ask whether the supporting evidence consistent with the positive identification evidence, taken together with the positive identification evidence, is sufficient to entitle the jury beyond reasonable doubt to conclude that the particular accused was the perpetrator of the particular crime".

Kearney v HM Advocate [2007] HCJAC 3 cautions trial judges against using the phrase "very little else" when directing a jury (see Lord Johnston at para 31), but nothing said in that case, nor in the Full Bench decision in Fox v HM Advocate 1998 JC 94, detracts from the Lord Justice General's dictum as a matter of legal principle. That principle has been reaffirmed relatively recently, notably by Lord Clarke, delivering the Opinion of the court, in Ready v HM Advocate 2009 SCCR 380 (at para [13]).

[17] There was considerably more than "very little" to corroborate the complainer's identification of the appellant as the perpetrator. First, there was the daughter's evidence that the locus of the assault was the matrimonial home and that, immediately after it had occurred, the complainer and the appellant had separated. The daughter also spoke to the history of violence perpetrated by the appellant on the complainer and, especially, to the types of injury inflicted. These injuries coincided with those referred to by the doctor in relation to the ultimate assault. Secondly, there was evidence from the police of finding the torn tights and the blood stained bedspread in the bedroom together with the note left in the kitchen. All of that evidence pointed to the assault being committed in the context of a domestic fracas; that is to say perpetrated by the only other person living in the house, namely the appellant. All of these adminicles constituted a sufficiency of evidence.

[18] When examining whether, but for the interview, there is a real possibility that the jury would have reached a different verdict, the court is engaging in a task which carries with it some conceptual problems, which might not be present if the court were simply to ask the question, posed in the statute, of whether a miscarriage of justice has occurred as a result of the admission of the interview. It is, as Lord Hope notices in Fraser v HM Advocate 2011 SC (UKSC) 113 (at para [38]) difficult to know exactly where to stop when carrying out what appears to be a limited exercise. It is one in which the court may end up examining the circumstances of a trial which did not take place and which may never have taken place. There is again an air of unreality in the task of stripping out of the trial process an interview, including references to it in speeches and charge, which was relied upon heavily by the defence to set up a positive defence whilst avoiding the risks of putting the appellant in the witness box.

[19] Be all that as it may, the court is satisfied that there was no real possibility that the jury would have reached a different verdict in this case. The jury were presented with the testimony of the complainer, which they must have accepted as both credible and reliable on both charges, having been directed to acquit if they thought otherwise. That evidence was corroborated by the various adminicles already alluded to. Any contribution which the content of the appellant's interview made to the Crown case must be regarded as minimal, if it even reached that level. It contained virtually nothing by way of incriminating material beyond facts which were already essentially unchallenged and had been spoken to by the various witnesses.

[20] The interviews are not to be regarded as never having taken place. They were inadmissible as evidence but the appellant's instructions to his counsel appear to have been in line with what he had said to the police. He did not maintain that he had said anything false in the interviews. Thus, the appellant did not challenge the complainer's evidence that it had been the appellant who had been in the house at the time of the assaults. Had the interviews not been led, the jury would have been left with the complainer's unchallenged evidence that this was indeed the case. It is not conceivable that they would have reached a different verdict had the interviews not been before them. The value of the interviews in the context of this trial was not that they added materially to the Crown case. Rather, they provided the appellant with what was the only positive evidential basis for the defence position. Had that defence, as so provided, not been before the jury in the first place, it is impossible to see how the jury could nevertheless have entertained a reasonable doubt about the appellant's guilt. No miscarriage of justice has occurred and the appeal on this ground must be refused.

[21] Finally, in this context, the court notices that this conclusion is the same as was reached by the trial judge when he was asked to comment specifically upon this issue. Such a conclusion is not to be lightly dismissed given the advantage which a trial judge has in seeing and hearing all the testimony as it emerges at trial.

[22] The appellant's second ground of appeal, relative to a misdirection, is conclusively answered by the Opinion of the court, delivered by Lord Eassie, in Crozier v HM Advocate [2011] HCJAC 95 in which it was said (at para [16]) that:

" ...in so far as it was submitted that the trial judge misdirected the jury by not informing them that they should not have regard to the terms of the police interview, we consider this argument to be misconceived. Insofar as the leading of evidence of what was said in the interview might now be open to objection in light of the decision... in Cadder v HM Advocate, that is a matter which goes to the admissibility of the evidence. For no doubt understandable reasons, no objection was taken at the trial. There was accordingly no basis upon which it would have been incumbent, or indeed proper, for the trial judge to have directed the jury to ignore the terms of the police interview".

This court agrees with that dictum, which is in any event binding upon it. Especially in a case in which the appellant has relied upon the interview in his speech to the jury, there could be no basis for a judge directing the jury to ignore its terms. Such a course of action would itself be likely to be regarded as a misdirection. The appeal on this ground also falls to be rejected.