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APPEAL AGAINST CONVICTION BY KP AGAINST HER MAJESTY'S ADVOCATE


Submitted: 28 July 2017

Web Blue HCJ

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 57

HCA/2016/000569/XC

Lord Justice Clerk

Lord Malcolm

Lord Glennie

 

OPINION OF THE COURT

delivered by LORD MALCOLM

in

APPEAL AGAINST CONVICTION

by

KP

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Paterson (sol adv);  Paterson Bell Solicitors, Edinburgh for McKennas, Glenrothes

Respondent:  S Fraser AD;  Crown Agent

28 July 2017

[1]        By verdict of the jury the appellant was convicted of the abduction, assault and rape of a 15 year old girl.  He was sentenced to imprisonment for five years.  He now appeals against his conviction.  The first ground of appeal is that the cross‑examination of the appellant by the advocate depute and his subsequent speech to the jury were so prejudicial to the appellant that, notwithstanding the directions made to the jury by the trial judge in this regard, he did not receive a fair trial.  The second ground of appeal is that the trial judge should have upheld a motion on behalf of the appellant, based upon certain questions put to him by the advocate depute, to desert the trial pro loco et tempore.

[2]        The circumstances of the offence were as follows.  The appellant (along with a group of other young men) and the complainer (along with a group of other young women) were socialising on a beach.  The appellant helped the complainer down from a rock and, standing behind her, put his hands over her shoulders and down her trousers.  She removed his hands and they began kissing.  They passed through an archway in a wall to a separate, isolated area of the beach, where sexual intercourse took place.  The appellant lodged a special defence of consent.  The complainer’s evidence was that she did not consent, and there was evidence of distress and injury.  There was also evidence from the complainer that during the incident she used her mobile phone to try and call one of her friends.  The friend’s voicemail recorded the complainer saying “You are raping me” and “(K), get off me”. 

[3]        In his evidence the appellant did not have any detailed recollection or explanation of the events.  Most of his evidence was to the effect that the complainer had consented to intercourse.  In relation to the voicemail, he maintained that the recorded conversation did not take place.

 

The cross-examination of the appellant
[4]        The cross‑examination began with the advocate depute telling the appellant that he raped the complainer and that this was his chance to tell the truth.  It was put to him that he was lying.  After some questions relating to the events on the day, the advocate depute said “you came here just to lie today to get off the charge of rape, didn’t you?”, to which the appellant replied “No”.  This prompted what became a theme of the cross‑examination, namely that the appellant was saying that the complainer and other female witnesses were liars.  It was put to him that “All you’re just going to do is deny everything that sounds as if it is trouble because you just want to fool the jury into letting you go free?”  It was put to the appellant that when he first went to see the complainer he was behind her and, without permission, put his hands down the back of her trousers.  He agreed with this.  “So you sexually assaulted her in that way? – I never sexually assaulted her.  Well if you put your hands down her trousers into her groin area what did you ... – I never put her (sic) hands down her trousers.”  It was then put to the appellant that he stuck his hands “down the inside of her trousers near her crotch area” – this was denied.

[5]        At a later passage the advocate depute said “and you chucked her onto the rocks and you pulled her trousers down and you snapped her thong and you raped her, didn’t you? – No.”  The appellant was asked whether he was under the doctor for problems with his memory.  There was a lengthy chapter of questioning relating to the voicemail recording.  He was asked whether he thought that they had just “fabricated this thing”, to which he replied “I don’t know to be honest.”  Again it was put to him that his evidence was nothing but a “whole load of lies” and that he now had a chance “to make this thing right”, to which the appellant said “That’s what I’m doing.”  “You’re lying – Well you say I’m lying.”  The advocate depute agreed that he was saying that the appellant was lying, and he commented that the appellant was saying that the complainer and two other female witnesses were lying.  Returning to the phone message, the appellant was asked where it came from ‑ “I don’t know.  She wasn’t on her phone when she was with me.”  A short while later he was asked “Do you often have sex with people and just forget about it completely later? – No.  I mean will you go out tonight and have sex with somebody?”  At this point the solicitor advocate for the appellant objected to this question.  The advocate depute stated that he would withdraw it, however the solicitor advocate still wanted to address the court.

 

The motion to desert the trial
[6]        In the absence of the jury and the witness, a motion was made that the trial be deserted pro loco et tempore on the basis that the most recent questions were prejudicial to the appellant as constituting an unwarranted attack on his sexual character.  The advocate depute, focusing on the question which had not been withdrawn, argued that it was justified on the basis that “themes of sex and memory” had been a feature of the evidence.  Having adjourned overnight to consider the application, the trial judge took notice of the earlier part of the cross‑examination in which the appellant had been asked about what was described as a “sexual assault”.  There had been no objection;  however there was nothing in the indictment alleging a prior sexual assault on that factual basis, and the trial judge was concerned that the advocate depute’s characterisation could be prejudicial to the appellant.  He canvassed this issue with the parties.

[7]        Ultimately the judge ruled that the objection should be sustained as the line of questioning was irrelevant and without evidential basis.  So far as the motion to desert was concerned, the view was taken that various inappropriate questions could be dealt with by instructing the jury to exclude them from their consideration.  He did consider whether it would be more appropriate simply to ignore the offending questions rather than draw the jury’s attention to them in his charge, however he decided that specific directions were necessary.  As to the earlier questioning, the jury could be relied upon to disregard the use of the label “sexual assault” when directed to do so.  No prejudicial matter had been contained in any of the appellant’s answers.

The advocate depute’s speech to the jury
[8]        For whatever reason, at an early stage of his speech the advocate depute assured the jury that “as a matter of law” there was enough evidence to convict the accused.  If anything was to be said on the matter of sufficiency of evidence, and many judges take the view that this is an unnecessary and potentially confusing direction, this was a matter for the trial judge, not prosecuting counsel.  It is understandable that in order to put their speeches into some context or framework, counsel will sometimes refer to legal matters, but this should be done with discretion and no more than is necessary for that limited purpose.  The advocate depute then told the jury that there is more than enough “quality” in this case to show that the accused raped the complainer, “and that has been proved by the evidence beyond reasonable doubt, as I’ll go on to show.”  At a later point he spoke of the complainer being “yanked” through an archway.  He referred to evidence from the complainer that “He picked me up like a baby”.  The advocate depute invited the jury to believe her “because that’s what happened.  And then he carried (her) to a place where he raped her.”  There are other passages where it was made plain that the advocate depute was of the view that the complainer’s evidence was in accordance with the facts of the matter.  For example on one occasion he said that her evidence was “the truth”.  He described one response from the appellant to the recorded voicemail message as “breathtaking, the arrogance of it, he is simply panicking.”  He concluded his speech by stating to the jury that the essential elements of the case “have all been proved beyond reasonable doubt.” 

[9]        In his report to this court the trial judge observed that the advocate depute stated to the jury that certain facts were true and that certain things had in fact happened, even though the matters were in dispute.  He appeared to express his own opinion of the appellant, using the expression “breathtaking arrogance.”  Although the solicitor advocate criticised parts of the Crown speech as being inappropriate, no further motion to desert the diet was made.  The trial judge decided that the assertions and comments made on behalf of the Crown gave him cause to add further points to his directions.  There was no question of deserting the trial at his own hand as he considered that these further issues, and the cumulative effect of all of the points raised, could be dealt with by appropriate directions in his charge. 

 

The trial judge’s directions to the jury
[10]      At the outset of his charge to the jury the trial judge made the standard directions to the effect that the jury and the jury alone were the judges of the facts in the case, and that what anyone else thought was of no importance.  The jury was told that questions were not evidence and that it was only the evidence which they should consider.  The contents of the speeches were not evidence and if they thought that any personal views were expressed in the speeches as to what happened, or what was true, or any opinions were expressed, they should be ignored as these were matters for the jury to decide.

[11]      Later in his charge, in a lengthy passage which extends over five pages of the transcript, the judge addressed the issues which have prompted this appeal.  The jury was directed that the advocate depute’s reference to sexual assault, and the offending questions asked by the advocate depute in cross‑examination regarding the appellant’s sexual character, should be ignored and excluded from their consideration.  With regard to the assertions made by the advocate depute in his speech to the jury as to what was and what was not true, and to what may have been perceived as his expressions of his personal opinion, the jury was directed to ignore such matters.  They should be completely excluded from the consideration of its verdict.  The jury should not assume from the fact that the questions were asked that there was some evidential basis for asking them.  It was stressed that it was for the jury to decide what had or had not been established by the evidence.  It was explained that, essentially, the purpose of the Crown speech had been to suggest to the jury that they may wish to accept certain evidence, reject other evidence, and may wish to reach a certain conclusion.

“But if you understood there to be any positive assertions that, as a matter of fact, certain things which actually are disputed in this case, actually happened, or were true, then that should be completely ignored, as should any personal opinions expressed.”

 

The submissions in support of the first ground of appeal
[12]      It was submitted that this was a trial where the key issue turned on the credibility or otherwise of the complainer and the appellant.  In this context irremediable prejudice arose from the conduct of the advocate depute.  It went beyond the acceptable bounds of a prosecutor acting in the public interest and seeking to lay before the jury evidence in a fair manner.  Reference was made to passages in the decision of the Supreme Court of Canada in Boucher v The Queen (1954) 110 Can CC 273, and to a decision of the Privy Council in Randall v The Queen [2002] 1 WLR 2237.  The prejudice to the fairness of the trial was so severe that no directions, however apposite and carefully framed, could cure the difficulty.  If that submission was rejected, it was accepted that the judge’s directions to the jury were sufficient and not open to criticism.  Helpful guidance could be obtained from the cases of Graham v HM Advocate 1983 SCCR 314 and Morrison v HM Advocate 2014 JC 74.

 

Submissions for the Crown
[13]      The advocate depute appearing on behalf of the Crown at the appeal hearing (quite properly a different advocate depute from the trial advocate depute) submitted that no miscarriage of justice had occurred.  It was accepted that some of the comments in the speech to the jury were “inappropriate”, though not causative of unfairness;  but no issue arose from any of the cross‑examination.  The principal submission was that, whether regarded individually or cumulatively, none of the questions and none of the comments in the speech were prejudicial to the fairness of the proceedings.  If they were, this was cured by the directions in the judge’s charge.  Reference was made to Sinclair v HM Advocate 1986 JC 113, and in particular a passage in the opinion of the Lord Justice Clerk (Ross) at page 122 to the effect that no case had been cited where the court deserted a diet merely because of the asking of an inappropriate question.

[14]      As to the advocate depute’s reference to an unlibelled sexual assault, this was not prejudicial in that evidence had been led as to what had occurred.  Under reference to paragraph 58 in the opinion of the court (delivered by the then Lord Justice Clerk (Carloway)) in Fraser v HM Advocate 2014 JC 115, considerable weight should be placed upon the view of the trial judge as to whether a potential miscarriage of justice could be avoided by ignoring the offending matter lest it be given undue emphasis, or by directing the jury in an appropriate manner, or by choosing to desert the diet.

[15]      In short, the submission on behalf of the Crown was that no directions by the trial judge were necessary, but, failing that, any potential prejudice was cured by virtue of the careful and detailed directions given to the jury by the trial judge.

 

Some fundamental principles
[16]      In Randall (cited earlier) the Privy Council dealt with an appeal against the refusal of the Court of Appeal of the Cayman Islands to quash a defendant’s conviction on the ground, amongst others, that during his trial prosecuting counsel had repeatedly interpolated prejudicial comments while examining prosecution witnesses and cross‑examining the defendant, and had interrupted, often with prejudicial comment, the cross‑examination of prosecution witnesses, the examination in chief and re‑examination of the defendant, and the judge’s summing up.  The conviction was quashed on the basis that the departures from good practice had denied the defendant the substance of a fair trial.  In the judgment of their Lordships, delivered by Lord Bingham of Cornhill, reference was made to the earlier decision of the Supreme Court of Canada in Boucher (cited earlier).  In Boucher the opportunity was taken to articulate a number of fundamental principles which, in the light of what has happened in the present case, require to be restated in some detail.

[17]      A prosecutor must not convey an impression that he has a personal opinion that the accused is guilty, nor that the investigations made by the Crown lead to that conclusion.  (Counsel for the defence is under a similar obligation;  indeed no forensic pleader should forfeit their professional independence by expressing a personal view on the justice of their client’s case.)  In Boucher (page 23) Rand J addressed a breach by a prosecutor of the above injunction as follows:

“(Such an) irregularity touches one of the oldest principles of our law, the rule that protects the subject from the pressures of the executive and has its safeguard in the independence of our courts.  It goes to the foundation of the security of the individual under the rule of law.  It cannot be over‑emphasised that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a 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.”

 

Locke J quoted (page 26) from an address delivered by another judge:

“Your duty to your client does not call for any expression of your belief in the justice of his cause … The counsel’s opinion may be right or wrong, but it is not evidence.  If one counsel may assert his belief, the opposing counsel is put at a disadvantage if he does not state that in his belief his client’s cause or defence is just.  If one counsel is well‑known and of high standing, his client would have a decided advantage over his opponent if represented by a younger, weaker, or less well‑known man.”

 

Later (page 28) the same justice said this:

“The right of the accused … to have his guilt or innocence decided upon the sworn evidence alone, uninfluenced by statements of fact by the Crown prosecutor bearing directly upon the question of his guilt, and to have the case against him stated in accordance with the foregoing principles, were rights which may be properly described, to adopt the language of the Lord Chancellor in Maxwell’s case, as being two ‘of the most deeply rooted and jealously guarded principles of our criminal law’”.

 

In similar vein Cartwright J observed (page 31):

“… he made it clear to the jury that he personally believed the accused to be guilty, the jury would reasonably take from what he had said that as a result of his investigation outside the court room Crown counsel had satisfied himself of the guilt of the accused.  The making of such a statement to the jury was clearly unlawful and its damaging effect would, in my view, be even greater than the admission of illegal evidence or a statement by Crown counsel to the jury either in his opening address or his closing address of facts as to which there was no evidence.”

 

Elsewhere in the judgments a prosecutor is described as a “minister of justice”, in the sense of an assistant to the court in the furtherance of justice, as opposed to a party representative “struggling” for a particular outcome.

[18]      A recent Scottish example of such principles in operation is to be found in Morrison v HM Advocate 2014 JC 74, in which reliance was placed upon Boucher and Randall.  An important point of distinction in Morrison (and indeed in other cases) is that no action was taken by the presiding sheriff to address and deal with the problems created by the procurator fiscal–depute.  It was noted that his 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.” (Lord Brodie delivering the opinion of the court at paragraph 31)

 

[19]      There must always be a place for putting to a witness that he is being untruthful – but that should only be done on a demonstrably justifiable basis arising from the evidence, or absence of evidence;  not from an a priori assumption that others are correct and he is a liar, and certainly not because that is the personal opinion of the examiner.  This is all the more so in the context of a criminal trial where, in the High Court, the advocate depute represents the Lord Advocate who represents the Crown, and the liberty of the accused, who is presumed to be innocent until convicted, is at stake.  The jury could be given an impression that whatever might or might not emerge in the evidence, and whatever their own view, the prosecuting authority, which may have other sources of information, knows that the accused is guilty.  The jury can be given specific directions such as to concentrate only on the evidence and ignore a question, comments or propositions unsupported by the evidence;  but there may come a point when the prejudicial conduct is so extreme, that even this cannot resolve the resulting unfairness.  Our system depends upon all involved understanding and respecting these basic rules.  In Dreghorn v HM Advocate 2015 SCCR 349 the court stressed that a complainer should not be treated in a bullying, disrespectful manner.  No lesser standard is expected in relation to the examination of an accused person, or indeed any other witness. 

[20]      Though expressed over 60 years ago by the highest court of another jurisdiction, the principles set out in Boucher (quoted earlier) are timeless, and as relevant today as they have been over many years.  They were reflected in the judgment of the Privy Council in Randall.  The Board confirmed that the jury’s attention must not be distracted from its central task of determining, in the light of all the evidence, the submissions, and the judge’s legal directions, as to whether the guilt of the accused is or is not established to the required standard.

“While the duty of counsel may require a strong and direct challenge to the evidence of a witness, and strong criticism may properly be made of a witness or a defendant so long as that criticism is based on evidence or the absence of evidence before the court, there can never be any justification for bullying, intimidation, personal vilification or insult or for the exchange of insults between counsel.”  (paragraph 10)

 

Lord Bingham continued in the following paragraph:

“It cannot be too strongly emphasised that these are not the rules of a game.  They are rules designed to safeguard the fairness of proceedings brought to determine whether a defendant is guilty of committing a crime or crimes conviction of which may expose him to serious penal consequences.”

 

At paragraphs 28 and 29 his Lordship said:

“While reference has been made above to some of the rules which should be observed in a well‑conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair.  Inevitably, in the course of a long trial, things are done or said which should not be done or said.  Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are a subject of a clear judicial direction.  It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice.  But the right of a criminal defendant to a fair trial is absolute.  There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty.  The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.

 

The crucial issue in the present appeal is whether there were such departures from good practice in the course of the appellant’s trial as to deny him the substance of a fair trial.  The board reluctantly concludes that there were.  Prosecuting counsel conducted himself as no minister of justice should conduct himself.  The trial judge failed to exert the authority invested in him to control the proceedings and enforce proper standards of behaviour.  Regrettably, he allowed himself to be overborne and allowed his antipathy to both the appellant and his counsel to be only too manifest.  While none of the appellant’s complaints taken on its own would support a successful appeal, taken together they leave the Board with no choice but to quash the appellant’s convictions.  It cannot be sure that the matters of which complaint is made, taken together, did not inhibit the presentation of the defence case and distract the attention of the jury from the crucial issues they had to decide.”

 

Decision on the first ground of appeal
[21]      It is clear that a substantial and prejudicial departure from good and proper practice occurred at this trial.  That it should happen at all is concerning in itself.  However, the matter does not stop there.  This appeal was based upon criticism of the conduct of one of the Lord Advocate’s deputes in a rape trial conducted in the High Court.  The presumably carefully considered position of the Crown in response to this appeal was presented by another of the Lord Advocate’s deputes.  Her submissions have been summarised above.  If they were the carefully considered position of the Crown, the failure to acknowledge that something had gone seriously amiss requiring, at the very least, clear and direct action by the trial judge, would suggest that there is a broader question as to the ethos and culture in the prosecuting authority. 

[22]      In similar vein to the cross-examination of the complainer in Dreghorn, the cross-examination of the appellant started on the declared basis that he was a liar, who was trying to fool the jury to escape his guilt.  There was an unpleasant and disrespectful tone to the questioning, allied to various attempts to diminish the appellant in the eyes of the jury.  In cross-examination and in his speech the advocate depute made it clear that both he and the prosecuting authority considered the accused man to be guilty of the charge.  The questionable tactic of trying to force him to accuse others of being liars was regularly deployed.  The problematic parts of the Crown speech have been recounted above.

[23]      The trial judge had no doubt that action on his part was necessary.  He could not have done more to attempt to redress the balance and restore the trial to a position of fairness and justice.  The essence of the submission for the appellant was that, where the credibility of the witnesses, and in particular of the complainer and the appellant (there being no direct eye-witnesses), was of such crucial importance, nothing could, as it was put, “obliterate” the prejudicial effect of the prosecutor’s conduct from the minds of the jury.

[24]      It is a cornerstone of our system that jurors are expected to and will follow directions.  When it comes to the standard legal directions, there will rarely be any good reason to challenge that assumption.  If the jury is asked to put aside or ignore something which should never have been said or done, the position is perhaps less clear-cut.  The authorities demonstrate that there may come a time when the fairness of a trial is damaged beyond repair.  In weighing all of this, the court must have in mind that the rules of proper conduct are there for a serious purpose.  The liberty of someone presumed to be innocent is at stake.  If the court cannot be confident that, overall, the trial was fair, or that any unfairness did not create a miscarriage of justice since it could not have affected the outcome, then a conviction must be quashed.  In the present case it is the former issue, namely the overall fairness of the trial, which underpins the appeal.  It has not been suggested that the evidence was so overwhelming that the jury’s verdict was inevitable. 

[25]      Contrary to the submission on behalf of the Crown, we have no doubt that the learned trial judge was correct in his decision that action was needed on his part in the light of the prosecutor’s conduct.  The key question is whether he was also correct in his conclusion that appropriate directions would be sufficient to prevent unfairness to the accused person.  He explained his reasoning in his report.  He noted that in HM Advocate v Sinclair 1986 JC 113, the Lord Justice Clerk (Ross) stated (at page 122):

“It is significant that no case was cited where the court has ever deserted a diet on the ground that an accused has been prejudiced by the mere asking of a question.  In my opinion one fallacy which lies at the root of the respondent’s contentions is that these contentions fail to distinguish between the asking of a question on the one hand and the asking of a question which is answered on the other hand.  Juries are regularly reminded to arrive at their verdict on the basis of the evidence and the mere putting of a question does not constitute evidence.”

 

The trial judge also quoted a passage from the Lord Justice Clerk’s judgment on the following page:

“There is a further reason for concluding that the sheriff in this instance erred.  Even if it were thought that the question was prejudicial, any prejudice could readily have been cured by a suitable direction from the sheriff to the jury.  Counsel for the respondent maintained that the mischief could not be cured by direction in this case because there had been ‘deliberate impropriety on the part of the prosecutor’ who had no foundation for asking the question.  I venture to doubt whether the asking of the particular question does deserve the description of deliberate impropriety but even if it could, the situation in my opinion could well have been dealt with by direction.  Even if it be accepted that the procurator-fiscal had no basis for the question, I see no reason why the matter could not have been satisfactorily been dealt with by a direction.  It must be assumed that a jury will listen to and comply with any directions given to them, and I see no reason why any prejudice here should not have been dealt with by such a direction.  In a number of the previous conviction cases to which we were referred, such as Binks, the jury were instructed to disregard objectionable evidence regarding previous convictions and such directions were held to have cured any possible prejudice to the accused.”

 

In the same decision at page 124 Lord Robertson said in respect of an objectionable question: “It was not part of the evidence in the case and could have no bearing on the jury’s subsequent decision on the evidence.”

[26]      The trial judge noted that the reference to a “sexual assault” was a characterisation of conduct which had been spoken to by various witnesses.  He considered that the jury could be relied on to disregard that label when directed to do so.  The later questions about whether the appellant often had sex, and whether he was going to have sex that night, were inappropriate, but made no clear, specific or significant allegation.  They could be distinguished from questions directed at previous convictions or other criminal conduct.  No prejudicial material emerged from the answers to the questions.  The judge concluded that, even viewing the questions cumulatively, the matter could be dealt with by directing the jury to have regard only to the evidence, and confirming to them that questions are not evidence. 

[27]      With regard to the contents of the Crown’s speech, the trial judge noted that no further motion to desert the trial was made.  However, he was concerned by the advocate depute’s remarks, which had been the subject of criticism in the defence speech.  Again the judge concluded that the cumulative effect could be dealt with by appropriate directions in his charge.  In his report to this court he said:

“My view was that, in reality, the assertions and comments, although inappropriate, did not go substantially further than the more conventional approach of the speech-maker in inviting the jury to reach certain conclusions.  My charge would make clear that the assessment of the evidence was entirely a matter for the jury.  Nonetheless, I decided that a suitably emphatic direction on the point should be given.”

 

[28]      The solicitor advocate appearing for the appellant stated to the court that if the trial judge was correct in the view that the difficulties could be satisfactorily addressed by him in his charge to the jury, there was no complaint as to the adequacy of his directions.  We note that in Fraser v HMA 2014 JC 115, in delivering the opinion of the court the then Lord Justice Clerk (Carloway) said this at paragraph 58:

“Finally, even if there had been an implied breach of the prohibition, it would have remained for the trial judge to determine in the first instance whether the breach had so compromised the prospects of a fair trial, in the domestic sense, that desertion became the imperative, if a potential miscarriage of justice were to be avoided.  In this area, the court places considerable weight on the views of a trial judge making the decision at first instance.  He has the benefit of presiding over the trial and judging the context of the answers within what, in this case, was a lengthy trial process.  He has a considerable advantage over an appellate court in understanding the realities of the situation.  The trial judge is best able to assess the likely, and possible, impact of the answers on the jury in light of all that has happened during the trial.  Thus, he is afforded a wide discretion in deciding whether: (i) to ignore the offending evidence and do nothing, less the matter be emphasised;  (ii) to direct the jury to ignore that evidence and, as here, to advise the jury that they should do so because it has ‘no bearing on the matter before’ them; and (iii) to desert the diet because of the inevitability of an unfair trial as a result.  In this case the trial judge took into account all of the relevant factors before deciding upon the appropriate course of action.  He reached a balanced and reasonable decision based upon these factors.  In such circumstances the court is unable to find fault in his decision.”

 

[29]      The circumstances in Fraser were materially different from the present, but the general point remains, namely that the trial judge was in a better position to judge whether justice could be achieved by appropriate directions, or whether the fairness of the trial had been irredeemably prejudiced.  He would have been well aware that credibility was a key issue in the trial, however he had the considerable benefit of having heard and seen all the witnesses.  He was well able to judge whether the impact of the prosecutor’s questions and comments was such as to prevent the jury from fulfilling its oath to try the accused solely upon the evidence before it. 

[30]      The conduct which received disapprobation in the cases of Boucher and Randall was of a particularly egregious and damaging nature.  Those cases can be distinguished on their facts.  In both Randall and Morrison it was noted that the trial judge did nothing to address the problems, and in the former case had positively contributed to them.  The case of Graham is in a different category, concerning deliberate wrongful conduct on the part of the prosecutor in eliciting evidence as to prior criminal conduct contrary to the statutory prohibition.  Here the advocate depute, unlike in Graham, did not refer to matters outwith the four corners of the trial and did not breach any statutory prohibition.  Essentially he suggested that certain conduct spoken to in evidence in the lead up to the key events was a crime not libelled;  put certain improper questions to the appellant as described earlier;  and associated himself and the Crown with the complainer’s position on issues of disputed fact and with the guilt of the accused person.  Recognising that credibility was in issue, nonetheless we see no good reason to conclude that the jury would not have been able to obey the judge’s directions, which were specifically designed to address the problems created by the advocate depute.  In previous cases, appeal courts have recognised the important and often decisive role which the presiding judge can play when faced with difficulties of this nature;  and correspondingly the consequences if there is a failure to take the necessary action. 

[31]      Some of the relevant authorities were reviewed in Huggins & Others v Trinidad and Tobago [2008] UKPC 30, a case concerning convictions in a capital murder trial.  The judgment of the Board of the Privy Council was delivered by Lord Carswell.  His Lordship noted a number of cases, including Ramdhanie v Trinidad and Tobago [2006] 1 WLR 796, where it was highly significant that the judge did nothing to dispel the unfairness which had been caused.  (As already mentioned, Randall and Morrison are in the same category.)  In the case before the Board however, the judge corrected misstatements about a number of matters and warned the jury to disregard the prosecutor’s remarks about the importance of a conviction;  and thus, although counsel’s departure from good practice was “very reprehensible”, the trial was not condemned as being unfair.  We adopt a similar line in thinking with regard to the present appeal.  While the court wishes to express its disapproval as to what happened in the present case, it has concluded that the fairness of the proceedings was saved by the judge’s careful directions.  In these circumstances the first ground of appeal falls to be rejected.  It would have been a different matter if the judge had not been alert to the problems, or had failed to convey the appropriate instructions to the jury.

 

The second ground of appeal
[32]      This ground of appeal relates to the trial judge’s refusal to grant the motion to desert the trial pro loco et tempore after objection was taken to one of the questions put to the appellant in cross-examination.  Given that the judge refused the motion on the basis that the matter could be dealt with by appropriate directions to the jury, this ground of appeal adds nothing of any materiality.  In the light of our decision on the first ground, namely that the directions were adequate to cure the problem created by, amongst other things, the advocate depute’s questions, it follows that this ground of appeal also falls to be refused.

[33]      Overall the result is that there has been no miscarriage of justice and the appeal against conviction will be refused.