CLIVE WINTER v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice Clerk Lord Kirkwood Lord Osborne | Appeal No: C114/98 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL against CONVICTION by CLIVE WINTER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jackson, QC; Drummond Miller, WS
Respondent: Turnbull, QC, AD; Crown Agent
31 May 2002
Introduction
[1]The appellant was tried at Edinburgh High Court on 10 - 16 February 1998 on seven charges all of which related to the period between 18 September 1996 and 26 February 1997. On charge 1, he was accused of having, while acting along with Paul Davidson, committed a brutal assault, involving a blow with a handgun, on the complainer, Tony Chan.
[2]Charge 2 was an unusual charge of breach of the peace. Since it is central to the appellant's case, we shall quote it in full.
"(2) between 1 October 1996 and 30 November 1996, both dates inclusive, in Orwell Terrace, Edinburgh, you did while acting along with Paul Frank Davidson, care of Prison of Edinburgh, conduct yourself in a disorderly manner, pretend to Leslie Andrew Malone, care of Lothian and Borders Police, Edinburgh that you had assaulted a person by repeatedly punching and striking that person on the face with a knife, smear your hands and said knife with red liquid, cause said Leslie Andrew Malone to believe that said red liquid was blood, clean said red liquid and fingerprints from said knife in said Leslie Andrew Malone's presence and place said Leslie Andrew Malone in a state of fear and alarm and this you did in order to induce him to participate in crimes of violence and did thus commit breach of the peace."
Charges 3, 4 and 5 related to assaults on three individuals carried out in public places. On charge 3 the appellant was alleged to have acted along with others; but as the case emerged there was evidence that the appellant acted on that occasion along with Leslie Malone, the complainer on charge 2. On charges 4 and 5 the appellant was alleged to have acted along with Paul Davidson.
[3]On charge 6 the appellant was alleged to have conspired with Davidson to assault nine named persons, and others whose identities were unknown, and to have compiled a list of those persons with the intention of seeking them out and assaulting them. On charge 7 the appellant was alleged to have conspired with Davidson to commit theft by housebreaking at a dwellinghouse occupied by the complainer David Smith; to have stolen keys for the house from the complainer and to have had a duplicate set made; and to have compiled a list of items that were to be stolen from the house.
[4]The appellant lodged special defences of alibi and incrimination to several of the charges, but did not lodge a special defence of alibi to charge 2.
[5]Paul Davidson, the alleged accomplice on six of these charges, pled guilty to those charges in June 1997 and was sentenced to imprisonment. Davidson was then called as a Crown witness. The other crucial witness against the appellant was Leslie Malone.
[6]The appellant was found not guilty on charges 2, 3 and 6, the trial judge having upheld a submission of no case to answer in respect of each of these charges. On charge 2 the trial judge held that there was no corroboration of Malone's account, Davidson having said that the appellant took no part in the incident. The appellant was convicted on the remaining charges.
The evidence
[7]During the period covered by the indictment, the appellant was Secretary to Lothian Health Board. Davidson and Malone, who were both in their early twenties, were junior colleagues of the appellant.
[8]On each of the charges of which the appellant was convicted, Davidson and Malone gave evidence. On charges 4 and 5, theirs was the only evidence incriminating the appellant.
[9]However, on charges 1 and 7 there was other highly incriminating evidence. On charge 1, the appellant was identified as the assailant by the complainer Mr. Chan, and by a witness Darren Tait. A replica gun said by Mr. Chan to resemble the weapon with which he was struck (Label 27) was found after the incident in the appellant's office in a cupboard to which he had, on the Crown evidence, exclusive access and, even on his own evidence, primary access.
[10]On charge 7, duplicate keys to the complainer's flat were found in the appellant's briefcase; false security passes in the name of Mr. Smith, but bearing photographs of the appellant and Davidson, were found in the appellant's wallet; and a document in the appellant's handwriting was found containing a list of items to be stolen from Mr. Smith's flat.
[11]These were powerful lines of evidence for which, it appears, the appellant could offer no convincing explanation or rebuttal. He could suggest only that Mr. Chan must have been mistaken in his identification, or that he had been shown photographs of the appellant by the police before the trial. He said that others had access to the cupboard in his office in which the replica gun was found. He suggested that the keys had been planted in his office desk. He had found the security passes at his office, along with other items, lying beside a photocopier. He had kept them and had failed to inform the police. He could suggest no reason why Davidson, Malone or Tait should give evidence against him.
[12]In his Report on the case, the trial judge summarises the evidence on charge 2 as follows:
"The evidence was that the incident occurred at about 11.30 on a Saturday morning in October or November 1996, on an occasion when Hearts were playing at home. Malone said that it was about two weeks after the first occasion on which he worked at Tynecastle. That first occasion had been (a) in September 1996, and (b) on the occasion of a match between Hearts and Celtic. Davidson confirmed that Malone started working at Tynecastle in September 1996, but was vague as to the date of the episode mentioned in charge 2, placing it somewhere in October or November 1996."
The ground of appeal
[13]This appeal relates to the alleged failure of the appellant's counsel to pursue a line of defence in accordance with the appellant's instructions. The issue arises in the following way. In charge 2 it was alleged that the crime had been committed between 1 October and 30 November 1996. During that period and before it, Malone had been employed as a turnstile attendant at Tynecastle Park, the home ground of Heart of Midlothian football club (Hearts), which was near to the locus of charge 2. Before the trial the appellant's solicitor established by precognition that Malone's evidence was likely to be that the crime was committed in the forenoon on a date on which Hearts played at Tynecastle. The appellant's defence was simply that the incident alleged had not occurred. The obvious step was taken of finding out the dates on which home matches were played at Tynecastle during the period libelled. The appellant then checked his whereabouts on those dates.
[14]The dates on which Hearts played at Tynecastle during the period libelled were Sunday 20 October (v Celtic), Saturday 2 November (v Dunfermline) and Saturday 16 November (v Hibernian). There was no dispute about this at the hearing of the appeal. The appellant told his solicitors, Doyle & Co., that he could prove that on Sunday 20 October Paul Davidson was abroad. He knew this because Davidson was a friend and colleague at work. He said that he had documentary evidence to show that on 2 November at 11.49 am he had withdrawn money from a cash machine at Comely Bank, which was a considerable distance from the locus of the charge. He said that he could prove that on Saturday 16 November he had been in Portsmouth.
[15]The significance of all of this was that if Malone were to speak to precognition at the trial, the defence would be in a good position to undermine his credibility. That would provide a strong line of defence to charge 2; but it would have a wider effect. If Malone were to be discredited on charge 2 by such evidence, that could have a significant bearing on his credibility on the other charges to which he spoke.
Preparations for the trial
[16]On 12 December 1997 a consultation was held with Mr. Michael O'Grady, advocate, and his junior, Mr David Jack, advocate. The possibility of a defence of alibi to charge 2 was discussed. After the consultation, Mr. O'Grady submitted a note confirming that this line should be followed up and requesting that, if possible, documentary evidence should be recovered to support the alibi. On 11 January 1998 the appellant wrote to his solicitor with details of his alibi evidence.
[17]In January 1998, Mr O'Grady had to withdraw from the case. He was succeeded by Miss Joyce Powrie, advocate. Miss Powrie advised the solicitors to enquire as to the Crown's understanding of the date on which the crime alleged in charge 2 had been committed. On 2 February 1998 the solicitors wrote to the procurator fiscal on this point. On 3 February 1998 Miss Powrie telephoned the instructing solicitors and said that she was not keen on an alibi to charge 2 if the alibi was not watertight. On the same date there was a consultation at which the question of the alibi to charge 2 was again discussed. On 6 February 1998, at a further consultation, Miss Powrie said that she felt that the alibi should not be lodged.
[18]On 10 February 1998, there was a consultation before the trial began. Miss Powrie said that she had spoken to the advocate depute and that he had agreed that if a precise date emerged at the trial for the incident alleged in charge 2, and if the defence had alibi evidence covering that date, the Crown would not object to the lodging of a special defence of alibi at that stage.
The trial
[19]There is not the slightest doubt that by the start of the trial the appellant had given clear instructions that on charge 2 he wished to present a defence of alibi or to prove that Davidson had been abroad, as the case might be, if Malone duly spoke to precognition.
[20]Malone gave evidence on 11 February, the second day of the trial. His evidence in chief as to date, place and time on charge 2 was as follows:
"As a result of knowing Paul Davidson, did you get a job working at a football ground from time to time? - Yes, we did.
Can you explain to me what the job was? - It was basically just taking in tickets at the turnstiles.
And where was that? - It was at Tynecastle.
When did you start that job? - It would be about September, round about the beginning of September '96.
So about September 1996? - Yeah.
And was there an occasion some time after you'd got that job when some incident occurred that caused you some surprise? - Yes. It was about two and a half weeks after I'd been working at Tynecastle.
And can you tell me how this came about? - In the first few weeks, Paul was picking me up at my flat in Marchmont and taking me down to Tynecastle and, as usual, we arranged the Friday at work, you know, what time he'd pick me up. It was normally about 12.30. On this particular day we had arranged that he would pick me up at 12.30, but I received a phone call on the Saturday morning at 10.30. He had mentioned that he had something to do but he was coming to pick me up about 11.30.
And the phone call was from whom? - It was Paul.
And did Paul come to pick you up about 11.30? - Yes, he did.
When he picked you up, what did he pick you up in? - His car.
Could you describe his car for us? - It's a red Escort.
Was there anyone else in the car? - Yes, it was ... Clive Winter was in the passenger seat. ...
Did they at some later stage tell you? - Yes. On the Monday morning at work, Clive had come into my office and he explained to me, you know, what had happened.
What did Clive tell you in your office? - He said that this guy had ripped Paul off in selling clothes and that they had sorted him out because of this.
They had sorted him out. Did they give ... did Clive give you any details as to how he'd sorted him out? - He had said he'd cut the guy's face down one side and down the other.
Are you indicating a cut down both cheeks? - (No audible answer).
Did he tell you who had been the victim of this? - No.
Can I go back to the car. When you drove, where did you drive them to? - I drove back up towards Haymarket and then from there down to Clive's house.
And what happened when you got to Clive's house? - They asked me to run in front of them and open up the doors, and went up and they washed their hands and then me and Paul went back in the car and went to Tynecastle.
And did you then carry out your duties at the turnstiles? - Yes."
[21]Later in his evidence in chief, Malone said that after the incidents libelled, at the suggestion of his girlfriend's father, he sat down and made a list of everything that he could remember. This document was Crown production no. 18. He was then referred to this production and was asked to explain the following entry in it "Saturday between 11.30 and 12, October to November, at home game off Dalry". He was asked what that referred to and he replied, "That was the incident with the knife and the blood".
Miss Powrie's cross examination of Malone on this point was as follows:
"When you ... You told us about something supposedly happening on your way to Tynecastle one day. You can't be specific about the dates, is that correct? - I know that I had my first job at Tynecastle was on a Wednesday and it was a match with Celtic and Hearts, and I know that the incident happened about two weeks after that.
But that's the best you can do? - Yes, it is.
Whatever may have happened, there's no question of Mr. Winter being in a car with you anywhere near Tynecastle, was there? - Sorry?
There's no question of Mr. Winter ever being in a car with you near Tynecastle? - Yes, he was.
You see, I have to put it to you that all this story about the blood and what was said is just not true, that it was lies? - I'm afraid I was there. I seen it for my own eyes."
The reference to the Hearts v. Celtic match is a reference to an earlier fixture in the Coca Cola Cup and is not to be confused with the Hearts v. Celtic match that took place on 20 October. From this excerpt from the notes of evidence it is apparent that the question of the appellant's and Davidson's whereabouts on the three dates in October-November was not pursued with this witness.
[22]The appellant was insistent in his instructions that the whereabouts of himself and Davidson on those dates should be pursued. On the third day the appellant gave his solicitors a letter dated 11 February, the previous day, in which he reviewed the evidence to date and expressed his concerns with counsel's conduct of the defence. His comment on charge 2 was as follows:
"2.Charge 2
There were very positive developments on this in that Malone confirmed that the incident took place between 11.30 and 12 noon on a day between 1 October and 30 November when Hearts were at home. However we made no reference to the specific dates that this implies, or to the alibis that there are to these dates. Presumably this will emerge when I am in the box confirmed by the Hearts fixture list. Have we taken steps to confirm my flight ticket for 13-17 November to London."
[23]The upshot of this letter was that it was put to the appellant that if he was dissatisfied with Miss Powrie's conduct of the defence, he could withdraw her instructions. That, of course, would almost certainly have resulted in his having to conduct his own defence for the remainder of the trial. In the event, the appellant signed the following statement which was docquetted at the end of the appellant's letter of 11 February:
"12/2/98
I, Clive Winter, confirm that Ms Joyce Powrie has seen a copy of this letter & that I have been advised that, if unhappy with the conduct of my trial, I have the option of dispensing with the services of Ms J. Powrie. I have considered that advice, and I am happy to continue to instruct both Ms J. Powrie & Mr David Jack in the conduct of my defence.
Clive Winter
12/2/98"
We infer from this that if the appellant had not signed the docquet, Miss Powrie would have withdrawn from the case.
[24]On the third day of the trial, Davidson gave evidence. His evidence, so far as relevant to charge 2 was as follows:
"And when did Mr. Malone start work at the turnstiles at Tynecastle? - Last September, October.
Now, you're saying last September, October? - Yes.
Two years ago, 1996 would that be? - Yeah.
And how did you and Mr. Malone get to Tynecastle on occasions when you were working at the turnstiles? - Separate.
Were there any occasions when you gave him a lift? - Yeah, a couple of occasions, yeah.
Was there an occasion when you were due to go to Tynecastle when arrangements were made to pick Mr. Malone up somewhat earlier? - Yeah.
Who was present on that occasion? - Clive Winter and myself.
Can you remember when that happened? - About October.
About October. Is that the October after Mr. Malone started? - October, November, yeah.
October, November 1996. Where did you go that day? - Picked Les up at his house.
You picked Les up at his house, yes, and who was driving? - Myself, yeah.
And where did you go? - To Darren's house.
To Darren's house, yes. Sorry, to whose house? - Darren Tait's house ...
After this had happened, where did you go? - Down to Clive's house.
And what happened at Clive's house? - I ... (one/two words obliterated by coughing) washed and changed.
Washed and changed? - To go to the football, yeah.
And you went to the football, is that right? - Yes."
[25]The question of Davidson's having been abroad on 16 October was not put to him. In the event, that question and the question of the appellant's alibis for 2 and 16 November were not pursued.
[26]When the appellant came to give evidence he had already been acquitted of charge 2. Nevertheless, he was asked about it in evidence in chief as follows:
"Now, Charge 2, as you're aware, his Lordship has found you not guilty of that charge. Just put shortly, do you ever remember being in a car with Mr. Malone and Mr. Davidson when there was blood smeared on it? - No, I was not.
You were not? - I was not.
So you don't know anything about that? - No.
Is there any truth in what they said? - Absolutely none, and given what they have said about the other circumstances of the day on which it took place, I know that I could not have been there.
I think though it's ... I'm not sure even yet we've had a date pinpointed for when ... ? - No, we've been told it was on the day of a Hearts home game in October or November, and there were only three such, and I can account for myself on ... well, I can account for Davidson on one of the days and the other two of them.
Yeah, but beyond that you don't really know? - No."
That was as far as the matter was taken with the appellant. It is apparent however from his answers in this passage of the evidence that the appellant was anxious to pursue the point.
The appellant's affidavit
[27]On 26 April 1999 the appellant signed an affidavit in support of this appeal in which he described Miss Powrie's role in the conduct of the defence as follows
"Ms Powrie laid great emphasis throughout this consultation on her advice that the defence case should be as simple as possible. When I asked about the preparation of alibi evidence relating to Charge 2, she explained that it would not be appropriate to lodge a Special Defence, since the alibi related to information contained in a precognition and the transcript of a police interview with Paul Davidson. The alibi would have no force if the sworn evidence given by Malone and Davidson during the course of the Trial varied from their earlier statements. I was surprised and concerned at this, but accepted Ms Powrie's advice on procedure.
I pursued this matter on the telephone and in the course of a visit to Doyle and Co on the afternoon of 6th February. Prior to the start of my trial on 10th February, I was advised by Doyle and Co that Ms Powrie had made an agreement with the Advocate-Depute that if the information about the date and time of the alleged incident referred to in Charge 2 was confirmed by Malone and Davidson in their evidence, the Advocate-Depute would not object if Ms Powrie sought to raise the alibi evidence for the defence during the course of the Trial.
In their evidence both Malone and Davidson reiterated the information that they had given previously about the date and time of the alleged incident referred to in Charge 2. The alibi was not put to them in cross-examination. I made reference to the position relating to Charge 2 in a letter that I wrote to Doyle and Co on the 11th February.
Prior to the beginning of proceedings on 12th February, I was advised by Doyle and Co that Ms Powrie proposed to make an application at the conclusion of the prosecution case to have three of the charges against me, including Charge 2, dismissed on the ground that there was no case to answer, and that the Advocate-Depute would not oppose two of these applications.
(I do not know which two the Advocate Depute did not intend to oppose, although I presume that they were those relating to Charge 2 and 3, since in both instances Davidson's evidence fails to corroborate that of Malone). I expressed considerable concern about this proposal as it affected Charge 2, and indicated that I did not wish such an application to be made in respect of this Charge. I repeated my view that the defence case relating to this Charge was crucial for my whole defence, both because the alleged incident referred to in the Charge had been used by Malone as the justification for his admitted involvement in other incidents referred to in the other Charges, and because there was an irrefutable alibi that did not depend on the personal evidence of defence witnesses. Doyle and Co then held a separate consultation with Ms Powrie, following which I was informed that Ms Powrie's advice was that she should make such an application, since in her view it was always best practice to have Charges dismissed if at all possible. It was also conveyed to me that if I was not content with Ms Powrie's conduct of my defence, it was open to me to dismiss her. I asked for, and received conformation that if the Charge was dismissed, it would remain possible to make use of the alibi evidence to demonstrate the unreliability of Davidson and Malone as witnesses. In the light of that, and with considerable misgivings, I accepted the advice and in due course Lord McFadyen, the Trial Judge, upheld Powrie's application and dismissed Charges 2, 3 and 6.
Although I presume that the advice that I was given that the alibi evidence relating to the date and time of the incident referred to in Charge 2 remained admissible even though the Charge was no longer extant was correct (particularly since the Advocate-Depute made considerable use of evidence relating to Charge 6, which had also been dismissed, in his cross-examination of me) no reference was made to the alibi throughout the case."
Defence counsel's information to the court
[28]In a letter dated 2 July 1999 on the notepaper of Doyle & Co., Miss Powrie and Mr. Jack responded to the grounds of appeal and the affidavit of the appellant in the following terms:
"1.The Appellant's defence was fully investigated as instructed.
2.The evidence alluded to by the Appellant was not that given at trial by witnesses Davidson and Malone. Accordingly no alibi could be advanced.
3.The Appellant had 2 pre-trial consultations with Ms Powrie.
4.The Appellant instructed the "no case to answer" submission to be made.
5.Ms J Powrie had an agreement with the Advocate Depute, Mr Bell that he would not object to alibi evidence being led late if concrete evidence as to the date of the alleged offence was exposed (re charge (2)).
- Further to 5 above the Appellant did not instruct an alibi defence to charge 2 to be lodged.
- The Appellant confirmed on 11th February 1999 that he was content with his representation and wished Counsel and solicitors to continue acting on his behalf."
[29]That was plainly insufficient. On 26 July 2000 the court pronounced an interlocutor in which inter alia it
"directed the solicitors now acting for the appellant to request Mr. Doyle and Miss Powrie to submit affidavits expanding upon the letters dated 2 July 1999 in particular dealing with
(a)what information, in relation to a possible special defence of alibi for the second charge libelled, was given to the agents for the appellant and when such information was given;
(b)what investigations followed as a result of that information, especially in relation to Paul Frank Davidson's holiday arrangements and the appellant's trip to Portsmouth;
(c)what decisions were taken in the light of the investigations including the reasons for not lodging the record of the banking transactions relating to the appellant's bank account;
(d)what instructions were given by the appellant in the light of those investigations prior to the commencement of and during the trial of the appellant; and
(e)why counsel or the agents for the appellant made a special arrangement with the Advocate Depute, rather than lodge a special defence of alibi."
[30]In July 2001, Miss Powrie, who had by then been appointed a sheriff, gave an affidavit in which she said inter alia:
"4.I decided that an alibi could not be lodged as it was not clear prior to the start of the trial when the alleged offence set out in charge two had occurred. The charge covered a two month period and the Appellant did not have an alibi to cover the whole period. Standing that an alibi is drafted in terms inter alia 'between which times the offence is alleged to have been committed' it was not possible to do this.
5.I approached the Advocate Depute prior to the start of the trial in relation to this difficulty. He appreciated the problem and confirmed that he could not pin point the date of the alleged offence. It was against this background that he agreed that if during the trial a date was established for which Mr Winter said he had an alibi he would not object to a special defence of alibi being lodged late. However, no date was ever established which would have enabled such a special defence to be lodged. Mr Winter was fully advised of the above and accepted my advice prior to the commencement of the trial.
6.Prior to the second day of the trial Mr Winter gave his Solicitor a letter alleging some complaints about the way in which the trial was proceeding. It appeared to me that he was no longer accepting my professional advice. A further consultation took place with him when his letter was fully discussed. I made it perfectly clear that if Mr Winter was no longer prepared to accept my advice then he should dispense with my services immediately and instruct another Advocate. He indicated that he wished me to continue to act for him and would accept my advice. My instructing agent had Mr Winter confirm this in writing on the said letter.
The case for the appellant
[31]Counsel for the appellant argued (1) that the appellant had given clear and explicit instructions in relation to charge 2; (2) that those instructions had not been carried out, notwithstanding the appellant's complaints; (3) that there was clear prejudice to the appellant to the extent that he had not received a fair trial, because if Malone's credibility had been shaken on charge 2, the jury could have held that there was reasonable doubt on the other charges, on all of which Malone was a witness; and (4) the purported discharge that counsel had required the appellant to sign was invalid.
The case for the Crown
[32]The advocate depute observed that on one view it could be said that there was no miscarriage of justice on charge 2 since the appellant had been acquitted of it at the end of the Crown case; but he accepted that evidence discrediting Malone on charge 2 would still have been available to the defence at the end of the trial in relation to Malone's reliability on the other charges. However, on charges 1 and 7 there remained the highly incriminating evidence for which the appellant could give no convincing explanation.
[33]The advocate depute submitted that the questions for the defence involved tactical matters of advocacy relating to the prosecution's eye-witness evidence, the real evidence, and the special defences of alibi and incrimination lodged in relation to other charges. These were matters for the judgment of counsel. The appellant's instructions to his solicitor had been carried out. Counsel had judged that the date of charge 2 could not be ascertained clearly enough to frame an alibi. That too was a matter for her judgment. In any case, the alibi evidence was not convincing. The bank document did not prove that it was the appellant who withdrew the money at the cash machine. The timing of the events on charge 2 was not clearly established. Moreover, counsel was justified in concluding that the Crown evidence on charge 2 appeared to be insufficient, and that prolonged cross-examination on that charge might be dangerous. It was reasonable to conclude that the preferable line would be to rely on the inconsistencies between Malone and Davidson. Counsel could also rely on the contrast between Malone and Davidson on the one hand and the evidence of the respectable witnesses who spoke to the alibis on the other charges. In all the circumstances, the decision whether or not to lodge an alibi on charge 2 was a matter for counsel's judgment (Anderson v HM Adv, 1996 JC 29, at p. 43H-44B), which could not be said to have been unreasonable (McIntyre v HM Adv, 1998 SCCR 379). Even if counsel had failed to present the defence instructed by the appellant, that failure had not resulted in a miscarriage of justice, given the other Crown evidence.
Decision
[34]We should say at the outset that we regard the docquet signed by the appellant as being of no effect so far as the issue in this appeal is concerned. The advocate depute has not suggested otherwise. We shall say no more on that subject since the issues raised by the docquet in this case have not been fully argued.
[35]To succeed in this appeal the appellant must show not only that the defence instructed was not put forward by counsel, but that the failure to do so was such that the appellant did not receive a fair trial (AJE v HM Adv 2 February 2002, unreported).
[36]Counsel for the appellant has argued the point on the basis of a failure to lodge a special defence of alibi to charge 2; but we consider that that is too narrow an approach. The essential question was a more general one, namely that if Malone tied himself down to the contention that the incident occurred on the day of a Hearts home fixture some time within the latitude specified in the charge, the appellant would be able to lead evidence to show (a) that there were only three possible dates for that; (b) that on the first of these the alleged accomplice was abroad; (c) that on the second the accused himself was elsewhere in Edinburgh at the relevant time; and (d) that on the third the accused was in Portsmouth.
[37]Such evidence, to put it at its lowest, would have had an important bearing on Malone's credibility on charge 2. If it did, then counsel could reasonably have suggested to the jury that there was a doubt about Malone's credibility on the other charges to which he spoke.
[38]Where the Crown takes a latitude in date such as it took in charge 2, it is formally giving notice that it does not intend to confine itself to any particular date within that latitude. The accused is therefore on notice that the Crown may, in the light of the evidence led, submit to the jury that the crime was committed on any day within the latitude. If the Crown takes advantage of latitude in such circumstances, it must accept that the accused is put at a disadvantage. If the accused says that he was not involved in any such incident and was never at the locus during that period, he cannot know from the indictment for what date he should consider and prepare an alibi. It may be that he can provide an alibi for the entire latitude; for example, if he was abroad throughout that period. But if he cannot do that, it is clearly unreasonable to require him to provide an alibi specifying his movements throughout the entire period of the latitude. That is so even where the accused expects the Crown evidence to particularise the incident to a specific date within that period. The accused cannot assume that on the evidence at the trial the Crown will confine itself to that date. There is therefore no obligation on the accused to lodge a special defence of alibi directed to such a date.
[39]However we need not pursue the point further because as it happened in this case Malone, both on precognition and in evidence, did not specify a date. He merely said on precognition that the events occurred on the day of a Hearts home match. In that situation, in our view, the defence were entitled to wait and see what Malone said in the witness box.
[40]The defence could of course have made doubly sure by lodging a special defence to the effect that if the offence alleged occurred on either 2 or 16 November, the accused was at a specified place at the relevant time.
[41]There seems to be no doubt that Doyle & Co. followed up the alibi evidence that the appellant wished them to follow up, although they achieved only limited success. They cannot, it seems, be faulted for the work that they did and we do not understand counsel for the appellant to seek to cast blame upon them.
[42]This appeal is directed at the decision made by Miss Powrie in relation to the evidence as to the appellant's alibis for 2 and 16 November and as to Davidson's whereabouts on 20 October. In our opinion, the appellant's instructions were quite clear. He wished that evidence to be put before the jury. There seems to have been good reason for that. At worst for the accused there was the possibility, if not the probability, that Davidson himself, if asked, would agree that on 20 October he was abroad. As to 2 November, the appellant was in a position to produce his bank statement which showed the cash machine withdrawal at Comely Bank on that date. That might not have been a complete alibi. It did not of itself prove that the appellant was there; but it was certainly useful evidence that went some way towards ruling out 2 November as the date of the alleged incident. In relation to 16 November, even without documentary evidence from airlines, railway companies and the like, the appellant was in a position to prove his presence in Portsmouth by his own evidence and that of his partner, James Leslie.
[43]It has been suggested that it was a matter for Miss Powrie's judgment as to whether an incomplete alibi would be more unhelpful than none at all; but in a sense the case for giving evidence of the alibis and of Davidson's whereabouts on 20 October became stronger once the appellant had been acquitted of charge 2, because after that the defence had a clear run to lead evidence relating to all three days from the appellant himself.
[44]The affidavits of counsel for the defence and of the appellant's solicitors emphasise the point that there was a lack of independent evidence to support the appellant's evidence of alibi. That point, in our view, is misconceived. Many such defences are based on the word of the accused alone. For the defence to succeed it is sufficient that it casts reasonable doubt on the Crown case. There was plainly a sufficient basis for pursuing the line of evidence regarding the appellant's whereabouts on 2 and 16 November and Davidson's whereabouts on 20 October by putting that line to the appellant himself.
[45]To lay a foundation for the appellant's evidence during the Crown case, counsel could have pursued the question of the date of the charge 2 incident further than she did. She could have attempted to pin Malone down to a date; for example, by asking Malone who were the visiting team on the day of the incident. She could have put to Davidson the point that if the incident occurred on 20 October, he could not have been present because he was abroad. She could have lodged any documentary evidence that was available to support this line.
[46]In her affidavit Miss Powrie, while acknowledging that this line of defence was not pursued, does not make clear what her reasons were for that decision; nor what her alternative strategy was.
[47]On reviewing the whole evidence we are in no doubt that the appellant's case on this important point was not presented by counsel for the defence in accordance with the appellant's clear and clearly understood instructions.
[48]The question whether a decision of counsel is one of judgment for counsel alone, or is a decision relating to the accused's specific instructions may involve a fine distinction. There were certainly questions of judgment involved in this case, but we are satisfied that the failure of counsel to pursue the question of the possible dates on which the incident alleged in charge 2 occurred, if it occurred at all, and the question of the whereabouts of the appellant and of Davidson on those dates, went beyond mere tactical judgment and constituted a failure to put forward the case that the appellant wished to have put forward on his behalf (cf Anderson v HM Adv, supra, at 44F-G).
[49]If the defence had led evidence about the dates of the Hearts home matches and about the whereabouts of the appellant and Davidson on those dates, that evidence could well have undermined Malone's credibility on charge 2 in the minds of the jury. In that event it could well have undermined his credibility on the other charges. Malone's credibility would have been a vital point on charges 4 and 5, on which the accused was convicted on majority verdicts. Those charges depended entirely on the evidence of Malone and Davidson. In relation to those charges, in our opinion, the failure to pursue the lines of evidence to which we have referred resulted in a miscarriage of justice.
[50]However, that cannot be said in relation to charges 1 and 7, on which the verdicts were unanimous. On those charges, there was powerful evidence which the appellant was unable to rebut in any convincing way. We cannot see how, on those charges, the discrediting of Malone would have led to any other outcome. On that view we consider that in relation to those charges there cannot have been a miscarriage of justice.
Conclusion
[51]We shall therefore allow the appeal quoad charges 4 and 5 only, and quash the convictions and sentences on those charges.