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APPEAL COURT, HIGH COURT OF JUSTICIARY [2008] HCJAC
63 |
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Lord Osborne
Lady Paton
Lord Philip
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Appeal No: XC796/04OPINION OF THE COURT delivered by LORD OSBORNE in STEVEN EDWARD NAISMITH
ALLISON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act:
Alt: Allan QC, Crown Agent
The background
circumstances
[1] The appellant
was indicted, along with five other persons, on an indictment containing six
charges, all brought under section 4 (3) (b) of the Misuse of Drugs Act
1971. The appellant pled not guilty and
went to trial at Glasgow High Court between 27 August and
[2] In a Note of
Appeal under section 109 (1) of the Criminal Procedure (Scotland) Act 1995, the
appellant set forth five grounds of appeal against conviction and a ground of
appeal against sentence. By an
interlocutor of this court, dated
[3] At the outset
of the hearing before us it was indicated that senior counsel for the appellant
did not intend to argue grounds 1 and 4 in the original Note of Appeal. Thus it is unnecessary to consider them
further. The other grounds of appeal,
which he did argue were, as regards the original Note of Appeal, in the
following terms:
"(2) The learned trial judge erred in
refusing a defence submission made at the close of the Crown case that the
evidence introduced by the Crown of a statement made by a deceased witness,
John Stroner and contained within a transcript production 59 should not be
considered by the jury, the interpretation of the material contents of that statement
being significant and central to the Crown case and not supported by other
evidence. In particular, there was no
evidence to support the criminative inference to be drawn from said statement
that the appellant had instructed Stroner to be concerned in the supply of
drugs (see the charge page 22, line 19 to page 29, line 5).
(3) The learned trial judge erred in
refusing a defence submission that there was insufficient evidence in law which
would entitle the jury to convict the accused in respect of any charge of
concern in the supply of controlled drugs.
In particular the Crown failed to adduce any evidence that the appellant
was knowingly concerned in the supply of controlled drugs. ....
(5) In addressing the jury the
learned Advocate depute invited the jury to draw specific inferences from the
plea of guilty tendered in the course of the trial by a co-accused. Said invitation had no basis in law. To be cured the prejudice caused by such
invitation required to be cured by a specific direction. The conditional direction given by the
learned trial judge at page 31, line 17 to page 32, line 5 again taken with the
direction at page 33 lines 1 to 9 is insufficient. In the absence of such direction in the
circumstances of this case the appellant has suffered a miscarriage of
justice."
The sole ground of appeal in the additional Note of Appeal,
to which we have referred, is in the following terms:
"(1) It is respectfully submitted
that there was a failure by the Crown to fully disclose information pertaining
to the deceased witness John Stronach a.k.a. John McLaughlin, in relation to
previous convictions and his outstanding cases at the time of the trial. The evidence of this witness was led at trial
by way of the procedure set out in section 259 (5) of the Criminal Procedure (
Submissions of the appellant
[4] Having
indicated which grounds of appeal were to be argued, senior counsel for the
appellant commenced his submissions with a consideration of ground (3) in the
original Note of Appeal, concerned with sufficiency of evidence. He intended then to proceed to ground (2),
followed by ground (1) in the additional Note of Appeal. That was linked to ground (2) of the original
Note of Appeal. Thereafter he would turn
to ground (5) in that Note.
[5] Dealing
with ground of appeal (3) senior counsel said that the case was purely a
circumstantial one, so far as the appellant was concerned. Despite that, it was contended that there had
been insufficient evidence against the appellant. In developing his argument, senior counsel
drew our attention to what was said at page 10 of the trial judge's report to
this court in relation to this ground.
He said that there was no challenge to the trial judge's legal
approach. There had been clear evidence
of drug trafficking involving the co-accused Barry Smyth, who had been
convicted on the same charges as the appellant, but over a reduced period. The point made was that there was never any
direct linking of the appellant to drugs.
There was no evidence that the appellant was ever in possession of
drugs, nor that he was present when drugs were found. No paraphernalia had been found in the appellant's
house. There was no statement
implicating him, nor was there any forensic evidence to do so. It was accepted that there had been certain
links between the appellant and those who plainly had been involved in drug
trafficking, but they had been insufficient to justify conviction of the
former.
[6] Senior
counsel then proceeded to examine the linkage which the trial judge indicated
had caused him to decide to repel the appellant's submission of no case to
answer on the charges on which he was convicted. The first of these was that on
[7] If
the Crown was saying that the appellant had been concerned in the supply of
controlled drugs, it was necessary for them to show how he had been
concerned. In that connection reliance
was placed on Kerr v Her Majesty's Advocate 1986 S.C.C.R.
81. There had to be shown to be some
rational involvement, not simply presence or association with proved drug
traffickers.
[8] Senior
counsel then turned to support ground of appeal (2) in the original Note of
Appeal. It was submitted that where an
application was made under section 259 of the 1995 Act and where the
requirements of that provision could be shown to have been satisfied, the judge
had no discretion as to whether the relevant evidence could be led. However, a trial judge had a duty to consider
the fairness of the trial in relation to such evidence. If he considered that the fairness of the
trial would be irretrievably damaged, he might require to desert it. Alternatively, he might require to give
appropriate directions in relation to the evidence concerned. In this connection senior counsel relied upon
Nulty v Her Majesty's Advocate 2003 S.C.C.R. 378, Daly v Her Majesty's Advocate
2003 S.C.C.R. 393, McKenna v Her Majesty's Advocate 2003 S.C.C.R.399
and
[9] Senior
counsel then turned to consider the evidence involved. It included the statement that Stronach had
been asked to go to
[10] Senior
counsel moved on to consider the ground of appeal contained in the additional
Note of Appeal, which related to a Crown failure to disclose information
pertaining to the deceased Stronach. The
Crown conceded that they had not disclosed previous convictions and outstanding
charges relating to him, despite being requested to do so. These convictions were of a serious
nature. Three out of four of them were
for crimes of dishonesty. The first, in
1985 was a conviction under solemn procedure in Paisley Sheriff Court of reset.
The second, in 1987 was a conviction for theft by opening lockfast places under
summary procedure in
[11] Finally,
senior counsel supported ground of appeal (5) in the original Note of
Appeal. The Advocate depute at the trial
had surprisingly attempted to rely on the plea of guilty by one of the
appellant's co-accused; Barry Smyth had tendered a plea of guilty to charges
(1) and (3), which had not been accepted by the Crown, as appeared from page
133 of the transcript of the proceedings.
Another co-accused James Bruce had had his plea of guilty accepted. The matter had been dealt with by the trial
judge at page 31 of his charge to the jury.
It was accepted that the judge directed the jury that they should not
draw any inference or conclusion from pleas by co-accused. However, senior counsel submitted that what
had occurred was prejudicial to the appellant and that the direction given by
the trial judge had not cured the prejudice thereby caused. For that reason also the appellant's
convictions should be quashed.
Submissions of the Crown
[12] The
Advocate depute moved the court to reject all the grounds of appeal argued,
since no miscarriage of justice had occurred.
He commenced his submissions with a response to ground (3) in the
original Note of Appeal ,which raised the issue of sufficiency of evidence. His
submission was, in short, that, in this circumstantial case, there had been
sufficient material to entitle the jury to reach the verdict which they did, so
far as the appellant was concerned. It
was trite to say that, where there were different strands of evidence relied
upon in a circumstantial case, it was not necessary that each strand should
itself be of an incriminating nature.
The essential point was that, when taken together they required to
create a picture of involvement in the crimes alleged. In this case, the material available created
a picture of involvement on the part of the appellant in a drug trafficking
enterprise. The evidence had placed him
in intimate proximity with those shown to have been directly involved. The jury had been quite entitled to draw the
inference that they did as to his involvement.
Where the trial judge in his report to this court at page 11 set out the
evidence relied upon, the important features were the time of the association
between the appellant and other persons and, particularly, the association with
Barry Smyth. The trip to
[13] The
Advocate depute turned next to ground of appeal (2) in the original Note of
Appeal. He submitted that the trial
judge had been quite correct as to how he dealt with the matter of the evidence
introduced under section 259 of the 1995 Act.
He agreed with the exposition of the law provided by senior counsel for
the appellant. The difficulty was to
assess the importance of the evidence so introduced. The word "decisive" derived from decisions of
the European Court of Human Rights and had to be approached with caution. The importance of the evidence had to be a
matter of judgment for the trial judge.
If that was so, he must be afforded a reasonable discretion as to how to
deal with such material. There was
plainly a range of possible responses.
The trial judge was under an obligation to admit the statement, but had
to keep the fairness of the trial under constant review following upon
that. He had plainly acted in that way
and had dealt with the matter appropriately by giving the directions that he
did. The trial judge's directions were
to be found between pages 22 and 27 of the transcript of his charge. The Advocate depute submitted that these directions
were accurate and quite adequate to highlight the great care required in
evaluating the evidence of Stronach in the statement spoken to by police
officers. Indeed the jury were invited
to consider specifically whether the statement of Stronach was incredible as
regards many of the matters with which it dealt. The jury had been free to make of the
statement what they would; they were told to be very careful; the dangers
attached to the statement were pointed out.
Looking at the whole circumstances, it could not be said that the trial
had been rendered unfair by this material not having been excluded from the
jury's consideration.
[14] The
Advocate depute went on to make submissions on ground (1) in the additional
Note of Appeal. It was conceded that
disclosure had not been made of Stronach's previous convictions, or outstanding
cases. The Advocate depute said that he
might have made the suggestion that, unless the appellant's legal advisors had
requested the material concerned, it did not require to be disclosed. That was wrong. It was accepted that there was an obligation
to disclose the material regardless of that being requested. Accordingly, the Crown's submission was that
the materiality of the undisclosed information was not such as to prevent or
undermine the defence mounting an attack on the credibility of the maker of the
statement admitted under section 259 of the 1995 Act. It was fair to say that the incredibility of
Stronach was a matter which was not in dispute in any way, with the exception
of that part of the statement which had been relied upon at the trial by the Advocate
depute. Even though much of what
Stronach had said might be thought to be incredible, it did not follow that he
could not tell the truth in relation to that part of the statement. That was so even though he had the
convictions, details of which had now been disclosed. It had been acknowledged that he had told the
police lies in the course of his interview with them. Thus the question had to be asked what could
the defence have said about him that was not already said. As things were, without disclosure timeously,
his credibility was a serious issue in the case. The court should distinguish between this
case, where the propensity for dishonesty was manifest in the evidence and some
other case where a witness occupied no such position; in such a case as that,
previous convictions of crimes of dishonesty could be more significant than
they would have been in this case. Thus
while there may have been a breach of the obligation of disclosure arising out
of Article 6 of the Convention, the fairness of the trial had to be looked at
in the light of the whole circumstances.
Doing that, it was submitted that the trial had been fair.
[15] The
Advocate depute dealt finally with ground of appeal (5) in the original Note of
Appeal. He emphasised that the
submission made by the trial Advocate depute referred to in this ground of
appeal was quite wrong and should never have been made. That state of affairs had been recognised by
the trial judge. In the course of his
general directions, he said that matters of evidence were for the jury. More particularly, in the transcript of his
charge at pages 31 and 32, the trial judge directed the jury that they should
ignore the Advocate depute's contention.
This direction could not have been clearer, although it was brief. It was to be supposed that the jury would
follow the directions given to them in this regard. It could not be said that there had been a
miscarriage of justice on account of some residual effect of the objectionable
passage in the Advocate depute's speech to the jury. In all the circumstances the appeal should be
refused.
The decision
[16] We
deal first with the issue raised in ground of appeal (3) in the original Note
of Appeal, that of sufficiency of evidence.
It is plain from the evidence in the case and it was a matter of
concession that the case against the appellant was a circumstantial one. At page 11 of his report to this court the
trial judge outlines the Crown case against the appellant. He points out that there was evidence of
association on the part of the appellant with persons, places and motor
vehicles which were linked to drugs in large quantities. There was evidence of association between the
appellant and the co-accused Barry Smyth.
Smyth had called at the house of the appellant on his return from
[17] Turning
next to ground (2), it is appropriate to note that there was no dispute
regarding the law between senior counsel for the appellant and the Advocate
depute. In Nulty v Her Majesty's
Advocate the Lord Justice Clerk considered the procedural implications of
section 259 of the 1995 Act in paragraphs [35] - [37] of his opinion. In paragraph [35], he recognised that, there
being no discretion under the section in a trial judge to exclude hearsay
evidence that qualified under its terms, there was a continuing duty on the
trial judge to consider carefully the fairness of such evidence as the trial
progressed. In paragraphs [36] and [37],
he considered the various options available to a trial judge ranging from
desertion of the diet to the giving of directions to the jury, either to
disregard the hearsay evidence, or to treat it with caution, having regard to
the dangers inherent in such evidence.
What the trial judge in the present case decided to do was to give
directions to the jury in relation to the hearsay evidence of Stronach, which
are to be found at pages 22 - 27 of the transcript of his charge. What he did therefore was to leave the
evidence admitted under section 259 for the consideration of the jury, subject
to the careful directions which he gave.
The issue in this case appears to us to be whether that decision has led
to a miscarriage of justice in the particular circumstances of the case, taking
the form of an unfair trial.
[18] In
Campbell v Her Majesty's Advocate, detailed consideration was given to the
circumstances in which the placing of hearsay evidence, which could not be
cross-examined before the jury, might lead to an unfair trial and hence a
miscarriage of justice. We consider that
it is pertinent, in the context of this case, to quote what was said in
paragraph [15] of the opinion of the court in that case, delivered by
Lord Hamilton, as he then was.
There he said:
"The general rule under the
Convention is that an accused person should have the opportunity of examining
or having examined witnesses against him.
That rule is not, however, an absolute right. It has been recognised that a fair trial may
take place, notwithstanding that not every witness against the accused has been
made available for questioning. As Miss
Scott drew to our attention, the language used by the European court in
applying Article 6 (3) (d) has varied.
No single formulation has been adopted.
The indications, however, from the most recent cases are that a
violation of the right to a fair trial will or may arise if the conviction has
been based solely or to a decisive degree on statements made by persons whom
the accused has not, at any stage, had the opportunity to examine or have
examined. In Luca v Italy (2001) 36
EHRR 46 a conviction for a drugs offence was based solely on statements made by
a person to the public prosecutor before the trial; neither the accused nor his
lawyer was given an opportunity at any stage of the proceedings to question
that person. In considering whether there had been a violation of Article 6 (1)
and (3) (d) the court at paragraph 40 observed that, in accordance with earlier
authority, there were occasions on which it was necessary in certain
circumstances to refer to depositions made during the investigative stage but
'where a conviction is based solely or to a decisive degree on depositions that
have been made by a person whom the accused has had no opportunity to examine
or to have examined, whether during the investigation or at trial, the rights
of the defence are restricted to an extent that is incompatible with the guarantees
provided by Article 6'. A violation was
found to have occurred in that case.......
[16] Most
of the situations in which it has been held by the court that there had been a
violation of Article 6 (1) and (3) (d) could not arise in
[17]
In these circumstances we are not persuaded that in every case in which
hearsay evidence is a necessary ingredient of the Crown's corroborated proof
there will be a violation of Article 6 (1) and (3) (d)......".
[19] Against
the background of the guidance contained in the passage quoted, it is necessary
to consider whether the convictions recorded against the appellant were based
solely or to a decisive degree on hearsay evidence from a person whom the
appellant had no opportunity to examine or have examined. This plainly involves the assessment of the
significance of the hearsay evidence from Stronach as a matter of weight. In considering ground of appeal (3), we have
already concluded that sufficient evidence was available to support the charges
on which the appellant was convicted without the hearsay evidence from
Stronach. Thus, that evidence was in no
way essential to the Crown case even for the purpose of providing corroboration
of other evidence from witnesses who were examined. Thus, in our opinion, it may be said that the
preponderant evidence in support of the Crown's case came from witnesses other
than Stronach. Looking at that situation
and at the nature of the circumstantial case available against the appellant,
we have reached a conclusion that the Crown's use of that hearsay evidence
associated with the directions given to the jury concerning it by the trial
judge, has not resulted in an unfair trial.
In these circumstances the use of that evidence in the context has not
resulted in a miscarriage of justice. We
reject this ground of appeal.
[20] We
now consider ground of appeal (1) in the additional Note of Appeal, which is
concerned with the failure of the Crown to disclose the previous and
outstanding cases in relation to John Stronach.
It is to be observed from this ground of appeal that the contention that
the appellant's trial was unfair is based upon the failure of the Crown to
disclose fully information pertaining to Stronach's previous convictions and
his outstanding cases at the time of the trial.
We consider that, in this context, a distinction has to be made between
previous convictions and outstanding cases.
While, in appropriate circumstances, the existence of previous
convictions may be of importance in connection with the preparation of a
defence and to the challenge that may be mounted to the credibility of a
witness, we do not consider that the same may be said of outstanding cases. Where an individual is charged with crime, he
or she is presumed to be innocent until proved guilty. If a case is
outstanding, necessarily no verdict has been reached in it. In these circumstances we have insuperable
difficulty in understanding how information relating to those matters could be
properly deployed in the conduct of a defence.
[21] However,
the position is plainly different in relation to previous convictions. In
"Although it is open to the defence
to apply to the court for an order for production, the scheme envisaged by the
Book of Regulations places procurators fiscal and Crown counsel in the
invidious position of having to judge the relevance of previous convictions to
a defence, the lines of which the accused's representatives are generally under
no obligation to reveal. In reality,
however, the scheme is more deeply flawed since it is obvious that a reasonably
competent defence agent or counsel, considering how to approach the examination
or cross-examination of a witness, would wish to know whether the witness had
any previous convictions and, if so, their nature. Indeed it is precisely the kind of thing he
would want to know. What use, if any,
the agent or counsel chooses to make of the information is a matter for him and
he may well not be able to decide until he actually has it. But, at the very least, the information will
help in assessing the strengths and weaknesses of the witness. Therefore, information about the previous
convictions of the witness to be led at the trial 'would be likely to be of
material assistance to the proper preparation or presentation of the accused's
defence'. Under Article 6 (1) the
accused's agents and counsel are accordingly entitled to have that information
disclosed so that they can prepare his defence.
Since in this way both sides will have access to this information at
trial, the accused's right to equality of arms will be respected. The observations to the contrary effect in Her Majesty's Advocate v Ashrif [1988] S.C.C.R. 197 should not be
followed."
[22] On
the basis of these observations, without more, it might be thought that the
failure of the Crown to disclose the previous convictions of Stronach in this
case would have resulted in an unfair trial.
However, before reaching such a conclusion, it is necessary to consider
in more detail the particular circumstances of this case. It is obvious from the observations just
quoted that the importance of the disclosure of previous convictions of a
witness lies in the part that such convictions may have to play in a
consideration of how to approach the examination or cross-examination of the
witness concerned, on the part of defence counsel or agent. However, in this case, by virtue of the fact
that Stronach was not and could not be a witness in the case, on account of his
demise before the trial, there could be no question of his being examined or
cross-examined personally. What was
involved was the presentation of his statement to the police in terms of
section 259 of the 1995 Act. Thus any
convictions that might have been disclosed could not have been used for the
purpose contemplated by Lord Rodger of Earlsferry in the passage quoted.
[23] It
is conceivable perhaps that, faced with that situation, the appellant's
advisors might have sought to prove the existence of the convictions in
question in the course of the trial, with a view to establishing that, on the
basis of them, Stronach had not been an honest person, rather a person with
convictions for crimes of dishonesty.
Plainly they were unable to avail themselves of that option had it
commended itself to them. In considering
whether their being deprived of that option resulted in an unfair trial, it is
important to recognise the status of the evidence from Stronach at the trial. This can be discerned from the supplementary report
furnished by the trial judge on the ground of appeal now under consideration. In it he explains that the evidence of Mr
Stronach constituted one element in the Crown's circumstantial case. In dealing with ground of appeal (2), the
trial judge indicated that he had come to the conclusion that, in the context
of the circumstantial case against the appellant, it could not be said that the
evidence of the taped interview of John Stronach was of such significance as to
be decisive. It was one element in a
body of circumstantial evidence pointing towards the guilt of the
appellant.
[24] It
is helpful to note the trial judge's detailed comments upon the material
derived from Stronach. In his
supplementary report he says this:
"The evidence of Mr Stronach was
contained in Crown production 59 which was the transcript of a taped
interview. Mr Stronach was interviewed
by the police on
As I noted at page 3 of my principal
report, Crown witness number 4, Duncan Smith, gave evidence that on
In the course of the taped interview
Mr Stronach said that he had driven to
In cross-examination of Detective
Constable McFadden, Mr Watson, QC, on behalf of the appellant, examined
production 59 in detail demonstrating that in the course of his interview Mr
Stronach had told many lies. In his speech
to the jury the Advocate depute accepted that Mr Stronach was clearly a
liar. He said that he had lied about his
movements and about his involvement in drugs.
The Advocate depute suggested to the jury that it was easier to accept
those parts of the taped interview which were supported by other acceptable
evidence in the case. He pointed in
particular to the evidence of Detective Sergeant Duncan Smith that the same car
had been parked outside the appellant's house earlier in the day. He suggested that Detective Sergeant Smith,
who had nothing to do with the surveillance operation or Detective Constable
McFadden and had simply been at the house to check the address, was a credible
witness.
The Advocate depute also referred to
the evidence that the appellant had gone on 27 November to the house of Mr Stronach's
girlfriend and collected Mr Stronach's passport. He had then taken it to
Taking into account the analysis of
the interview of Mr Stronach carried out by Mr Watson and the concessions made
as to his credibility by the Advocate depute, the jury would have been most
likely to conclude that Mr Stronach did indeed tell many lies in the course of
the interview. They would, however, have
been entitled to be selective in their view of the evidence of Mr
Stronach. I gave them directions along
those lines on pages 5-6.
I understand that Mr Stronach had a
number of previous convictions (the trial judge then narrates the details of
these convictions). None of these
matters was before the jury. Outstanding
at the time of his death was the petition matter at
In the circumstances outlined above
it is difficult to see how the canvassing of the previous convictions of Mr
Stronach before the jury would have bolstered the already largely successful
attack on his credibility. It also
difficult to see why knowledge of the previous convictions would have
discouraged the jury from being selective in the approach to the contents of
the interview of Mr Stronach."
[25] Against
the background of the trial judge's account of the status of the material
derived from Mr Stronach at the trial, we have not been persuaded that the
failure of the Crown to disclose the previous convictions of Stronach to the
appellant's advisors resulted in an unfair trial and hence a miscarriage of
justice. For these reasons, we reject
this ground of appeal.
[26] We
turn finally to ground of appeal (5) in the original Note of Appeal. It is quite plain that it was wholly
inappropriate for the trial Advocate depute to invite the jury to draw
inferences from any plea of guilty tendered in the course of the trial by a
co-accused of the appellant. We have
difficulty in understanding how it could have been supposed that that was a
proper course to take. That state of
affairs was, however, recognised by the trial judge. He gave the jury specific directions in
relation to it at pages 31 and 32 of the transcript of his charge. There he said this:
"Now, I am going to deal now with a
matter which I think was mentioned by Mr Watson and that is this, that certain
pleas of guilty and not guilty by other accused were accepted by the Crown in
the course of the trial. Now, you should
not draw any inference or conclusion from that in relation to the remaining
accused so if the Crown suggested that the fact that Mr Bruce had pled guilty
including a reference to 58 Whitelees Road and suggested that that was
something that would be taken into account in relation to the first accused, Steven
Allison, that was wrong, you should ignore that suggestion. Equally you should not draw any inference
from the fact that the Crown accepted a not guilty plea from Mr Bolton. You should concentrate on the evidence. Of course, the evidence that was led in
relation to these other accused is available if you think it has a bearing on
the activities and associations of the remaining accused."
The trial judge also went on to give
general directions to the jury to the effect that they had to decide the case
on the basis of the evidence which they had heard. Recognising that any jury is presumed to
follow the directions in law given to it by the presiding judge at a trial, unless
the contrary can be shown, we conclude that there is no merit in this ground of
appeal, which we reject.
[27] In
all these circumstances, we refuse the appeal against conviction. The appellant's appeal against sentence will
require to be heard at a date to be fixed.