Act: Shead; Drummond Miller, W.S.

Alt: Prentice, Q.C., A.D.; Crown Agent

10 July 2008

On 20 February 2008 this court gave judgment ([2008] HCJAC 10) on the appellant's original ground of appeal (sufficiency of evidence). The Opinion then issued is referred to for the general background to the appellant's conviction. In the course of these proceedings the court allowed him to lodge an additional ground of appeal. That ground, relying on section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995, is to the effect that there has been a miscarriage of justice by reason of the existence and significance of evidence which was not heard at the original proceedings.

We heard evidence from four witnesses, none of whom gave evidence at the trial. Their testimony may be summarised as follows.

Daniel Forest stated that he had been a heavy goods vehicle driver for 43 years. He had known the appellant through business, having by arrangement parked his trucks in the appellant's yard at Kirkintilloch and also had repairs done to his vehicles there. Running repairs were carried out about once a month, commonly overnight. These were done by the mechanic, Allister Green, whom Forest had met after meeting the appellant. Green was paid for these repairs in cash. So far as the witness was aware, the appellant did not know of this arrangement. Green, in the witness's opinion, was a "Jack the lad type", who had always something to sell - washing machines, cigarettes etc., the sources of which were doubtful. When the witness had learned that the appellant had been convicted, he had indicated that he was prepared to see a solicitor and to swear an affidavit. That he had done in March 2003. One of his vehicles had been in the appellant's yard for months awaiting a substantial repair. When he had eventually collected it, he had found in the back pallets and cigarette wrappings - of the Embassy or Royal brand, he thought. He did not mention this find to anyone at the time. Green had supplied the witness and, the witness thought, others with a key for the middle garage at the yard. In cross-examination the witness acknowledged that his recollection of events now years ago was hazy. He had recently told a police officer, who had come to interview him about this appeal, that he could not remember much about what had occurred. He acknowledged that he had some previous convictions.

Alexander Kindred had formerly been in business as a haulier. He had had a fleet of seven or eight lorries which were based in premises next to the appellant's yard at Kirkintilloch. He had frequently parked vehicles in that yard (which had better security arrangements than the premises next door) and had had repairs done there. He had known the appellant prior to his conviction - sometimes having a cup of tea with him in his yard. He also knew Green, who had worked for the appellant. Some running repairs might be done outside in the yard, while more major repairs were done in the middle garage. The witness gave Green cash for smaller jobs and for the purchase of spare parts. Sometimes the repairs were done overnight. Only the bigger jobs were invoiced through the appellant's firm. Green and another employee, Burns, had keys for the garages, including the middle garage - as, he believed, had some other hauliers, though not himself. Green would get mobile phones "cloned" on request - not an entirely legitimate activity. The yard was also, the witness believed, a place where local shoplifters took stolen goods to sell on. Green would enquire if the witness was "interested in a bottle of perfume for the wife and that". The appellant's activities were in the buying and selling of buses. The witness had learned of the appellant's conviction (and Green's acquittal) from someone in the office. The witness could not have been guilty of the assault and robbery of the lorry as "he couldn't drive a lorry or a bus". In cross-examination the witness stated that he had known the appellant, as a business acquaintance, since about 1998. He would take a coffee with him. Bigger jobs were paid for by cheque to the firm. Payment by cash avoided the firm's books and the need to account for VAT.

Aston Carter stated that he had worked in a restaurant in Kirkintilloch. He had got to know local business people, including the appellant. He had learned that he could buy tyres for his jeep cheaply at the appellant's yard. He had met Green there. From time to time Green had offered to sell him goods, such as electrical goods. He had the impression that such goods came from an illegitimate source. On one occasion, when he had called to try to buy tyres, he had been stopped by Green who had said - "Robert's not here ... Would you like to buy cigarettes?" He had been told by Green that they were "shop quality", that is, were duty-paid. He had declined the offer. Green had said that, if he changed his mind, he should let him know; the larger the quantity taken, the lower would be the price. Green had told him that the cigarettes were nothing to do with the appellant; it was his (Green's) own transaction and the witness should deal with him alone in relation to the matter. The witness's brother had at one stage run a shop. The witness had learned that the appellant had been convicted but the appellant, in contrast to Green, had not offered him any goods. He had sworn an affidavit in February 2003 in which he had testified that he was unsure about the date of the offer of cigarettes but that it was around the end of February 2000. A few days after his conversation with Green he had learned on the grapevine that the appellant and Green had been arrested in connection with the theft of a large quantity of cigarettes. He had not thereafter returned to the yard. The witness stated that he had been in trouble with the criminal courts but was not lying in his testimony. In cross-examination the witness agreed that, if he was looking for a discount of tyres, he would be referred to the appellant. He accepted that paragraph 1 of his affidavit, in so far as it suggested that he held a university degree, was untrue. Likewise, paragraph 8, in so far as it stated "I have no previous convictions", was as at its date untrue. He had, albeit under a different name, previous convictions for burglary, theft, fraud and other crimes.

Ross Brown was the appellant's instructed solicitor at the time of his trial. He remained his solicitor for the purposes of this appeal. He had been a partner in his present firm (or its predecessor) since 1988. Mr Findlay, Q.C., had been counsel instructed for the trial. It had come as a surprise to the witness that, towards the end of the trial, the Crown had accepted a plea of not guilty from Green, who had been indicted along with the appellant, and had then led Green as a witness. Prior to giving evidence Green had been precognosced by the witness and the precognition passed to Mr Findlay. The witness had no specific recollection of further instructions being taken from the appellant in light of that precognition (though that would have been the logical thing to do), or of a further consultation with Mr Findlay. There were a number of lines available to counsel to challenge Green's evidence - they included his business and personal affairs. The witness had had no knowledge prior to the trial of any of Forest, Kindred or Carter and did not know about Green selling stolen property or doing "homers" (unrecorded repairs at night). Had he known of these witnesses, he would have made further enquiries and passed the results to counsel, who, he thought, would have used them at the trial - they clearly went to Green's presentation of himself. The credibility and reliability of Green had been a cornerstone of the prosecution case; an ability to undermine it was of the utmost importance to the appellant. In cross-examination the witness confirmed that the appellant had had the benefit of legal aid for his trial and that he had taken full instructions from him. He would have got from the Crown a provisional list of its witnesses and instructed his regular precognition officer (a retired policeman) to precognosce them. The special defence incriminating certain employees at the yard and the notice incriminating Green as a co-accused had been lodged immediately prior to the trial as a "belt and braces" exercise; no evidence directly pointing to any of these persons as responsible for the crime was available. The witness had no recollection of there being then any basis for believing that customers of the yard (or any particular customers) would be able to assist in the defence. It had not occurred to him or to senior counsel to pursue such a line of enquiry, which would potentially have involved several hundred customers.

No evidence was led before us from the appellant or from Green.

Section 106 of the Criminal Procedure (Scotland) Act 1995 provides:

"(3) By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on -

(a) subject to subsections (3A) ... below, the existence and significance of evidence which was not heard at the original proceedings; ...

(3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard."

It is accordingly a precondition of evidence such as is mentioned in subsection (3)(a) being founded on in an appeal that there is a reasonable explanation of why it was not heard at the trial. Mr Shead for the appellant, in anticipation of a line of argument which appeared to be foreshadowed by the cross-examination of Mr Ross, made various submissions to counter the expected proposition that the evidence now before us could have been made available by more diligent investigation having been made by the appellant's solicitor and counsel instructed for the trial. In the event, the Advocate depute did not advance any such proposition in argument; what was contended was that the appellant as an accused person had a responsibility to suggest lines of enquiry relevant to his defence and had in the present case failed to give any reasonable explanation as to why he personally had not suggested lines which would have disclosed the availability of this evidence. In these circumstances it is unnecessary for the purposes of this appeal to give a detailed account of Mr Shead's opening submissions or to opine upon certain criticisms which he made of earlier authority - in particular of the approach of this court to section 106(3A) in Barr v HM Advocate 1999 S.C.C.R. 13 and of certain observations made very recently in Fraser v HM Advocate [2008] HCJAC26.

In Campbell (T) v HM Advocate 1998 S.C.C.R. 214 at page 241E-F Lord Justice Clerk Cullen observed that it was plain from the statutory language that "it is for the appellant to show that the test [that there is a reasonable explanation] is satisfied". He added that he rejected the submission made by the Crown that the appellant required to show that the explanation was true - if that entailed that full legal proof was called for. At page 242B-C, having dealt with the situation where available evidence was for tactical reasons not led at the trial, he continued:

"Likewise, if the explanation were merely that the appellant was not aware of the existence of the witness, or, where he was aware of the existence of the witness, he was not aware that he was able or willing to give evidence of any significance, this would hardly provide 'a reasonable explanation'. But it might be different if the appellant also could show that at the time of the trial he had no good reason for thinking that the witness existed, or, as the case might be, that he would give the evidence in question. Thus much might depend on the steps which the appellant could reasonab[ly] be expected to have taken in the light of what was known at the time. The underlying intention of the new legislation is that the court should take a broad and flexible approach in taking account of the circumstances of the particular case."

That imports that a person accused, if he is to rely subsequently on a ground of appeal based on section 106(3)(a), cannot passively ignore lines of enquiry which he knows, or has reason for knowing, are of material significance for his defence. Moreover, as that ground of appeal is open only if the court is satisfied that there is a reasonable explanation, the responsibility for putting the explanation appropriately before the court for its adjudication rests on the appellant. If the expression "the onus being on [the appellant]" in Fraser v HM Advocate per Lord Justice Clerk Gill at para.[132], is understood in that sense, we agree with it. It does not, or does not necessarily, import an onus of legal proof. There will, for example, be cases in which some line of scientific enquiry of material significance for the conviction could clearly not at the time of trial have been recognised by an accused or his advisers as being significant. In such cases it may be obvious that this line is new and could not reasonably have been pursued earlier. In other cases it may be necessary for an appellant positively to establish, by evidence or otherwise, facts and circumstances on the basis of which the court can be satisfied that the statutory precondition is met.

In the present case we have heard oral evidence from the appellant's solicitor but not from the appellant personally - although an affidavit by him was lodged. This has caused us some concern. When this concern was raised with Mr Shead, he responded by observing that it had been the usual practice of the court to decide any issue under section 106(3A) as a preliminary issue without hearing oral testimony. He also adverted to the length of time which had elapsed since the trial and the appellant's mental state in the intervening period and currently - as vouched by a psychiatric report in process.

In his affidavit the appellant swears:

"... I had absolutely no idea of what my former co-accused Alistair (sic.) Green was getting up to separately with these three men [Forest, Kindred and Carter]. I have subsequently learned that Alistair Green behind my back was using the yard premises for doing 'homers' i.e. jobs from customers that were not carried out as proper company jobs."

We have serious doubts about the truth of the second sentence quoted. It would be highly surprising if the appellant, who was the principal of the firm which operated the repair business in the yard, had no knowledge (or at least no means of knowledge) that Green was doing "homers" - a practice apparently regularly followed. This is particularly so where the appellant's counsel, presumably on instructions, was able to put to Green in cross-examination, as he did, that Green had, when his (Green's) father, who was also the appellant's father-in-law, was the principal of the firm, been indulging in that very activity. The appellant's counsel was also in a position to suggest to Green that he had a practice of indulging in illegitimate activities - "a sideline in making illegal copies of CDs" being the particular suggestion put. Without the benefit of hearing the appellant's testimony tested by cross-examination, we would not be prepared to accept that he was the innocent victim of Green's night-time activities or of his general dealings in dubious goods. We are not in these circumstances satisfied that there is a reasonable explanation of why the evidence now adduced from Kindred and Forest was not heard at the original proceedings.

However, Carter's evidence about the particular conversation between him and Green, apparently about the time of the taking of the trailer containing tobacco products, may be of a different character. While again the explanation that the appellant was ignorant of that conversation would more readily have been accepted as genuine if the appellant had given convincing oral testimony to that effect, we are with some hesitation prepared, in the absence of any specific inconsistent material, to accept it as such. We are also on the same basis prepared to accept that the explanation is in the circumstances reasonable. Accordingly, we accept that there exists evidence of that conversation, which evidence was not heard at the original proceedings, and that there is a reasonable explanation of why it was not so heard. Thus section 106(3A) is to that extent satisfied.

In Megrahi v HM Advocate 2002 J.C. 99 the court at para.[219] addressed the approach to be adopted in considering "additional" evidence. (Mr Shead balked at the use of that adjective, it being redolent, he said, of the earlier, now superseded, test laid down by section 228(2) of the Criminal Procedure (Scotland) Act 1975 (as amended); but we construe "additional" as used in para.[219] and associated paragraphs as referring simply to evidence available at the time of the appeal that was not heard in the original proceedings). The court summarises the appropriate approach in six propositions, the last two of which are as follows:

"(5) The decision on the issue of the significance of the additional evidence is for the appeal court, which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial.

(6) The appeal court will therefore require to be persuaded that the additional evidence is (a) capable of being regarded as credible and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial."

It is plain from proposition (6)(a) that it is not the function of the appeal court itself to adjudge of the credibility and reliability of the evidence in question. Although an evaluative exercise is involved, the evidence must simply meet the test of being such as is capable of being regarded as credible and reliable by a reasonable jury.

Does Ashton Carter's evidence of his conversation with Green meet that test? We are persuaded that it does. While serious questions were raised as to the truthfulness of Carter and he was manifestly untruthful when he claimed in his sworn affidavit that he held a university degree and that he had no previous convictions, a reasonable jury would have been entitled to conclude that, while he had lied about certain things (touching on his personal achievements and his criminal history), he could nonetheless be accepted as truthful and reliable in relation to his evidence about the conversation in question. In these circumstances element (a) is satisfied.

It remains to consider element (b). In the context of the trial the evidence led from Green was important. He testified that he had been asked by the appellant to drive a box truck, which was later found to contain part of the stolen goods, from the yard to another location. Green claimed in evidence that he had no knowledge of the contents of the truck. The Advocate depute at the trial placed significant reliance on Green's testimony. Unfortunately, the transcript of what he said in his speech is not complete. What we have is:

"If you do not believe Allister Green you have simply got nothing (inaudible) Robert Cameron. Do you believe Allister Green?"

The inaudible word may have been "against". The trial judge, presumably under reference to this part of the Advocate depute's speech, said in his charge:

"The Advocate depute has said that if you do not believe Mr Green, there is not enough to convict the accused, and I proceed on that basis. So you will have to look very critically indeed at the evidence given by Mr Green."

However the judge also observed -

"... even in addressing you the Advocate depute kept open the possibility that [Green] was a party to the enterprise."

It is indeed clear from perusal of the Advocate depute's speech that he did not rest the Crown case upon the jury accepting that Green was, as he claimed, wholly innocent of criminal involvement with the stolen goods.

In Fraser v HM Advocate the court required to consider the significance of new evidence against the context that at trial the Advocate depute had presented the Crown case upon a certain footing (the absence of the deceased's rings from her house at a particular time) and the judge had given certain directions to the jury upon that basis. At para.[150] the Lord Justice Clerk observed:

"The approach of counsel for the appellant was to treat the Crown's presentation at the trial as being fixed for all time, so to speak, and then to assess what impact the new evidence would have had upon it. I do not accept that approach. It requires us to consider the significance of the new evidence on the unreal assumption that, if it had been led, the advocate depute would have presented the jury with the same theory of the facts. In my opinion, if either PC Lynch or WPC Clark had given evidence about the presence of the rings in the house on the night of 28-29 April, the advocate depute would not have committed himself to his theory about the cornerstone of the Crown case, and the trial judge would not have directed the jury as he did."

Having at para.[151] distinguished Smith v HM Advocate 2001 S.C.C.R. 143 (where the new evidence was destructive of the crucial issue at the trial) the Lord Justice Clerk at para.[152] added:

"In my view, the correct way to deal with this ground of appeal, in the unusual circumstances of this case, is to consider the new evidence in the context of the whole evidence led at the trial in order to see what, if any, relevance the new evidence has to the crucial issues and to judge whether the absence of it at the trial requires us to set aside the verdict."

At para.[211] Lord Osborne observed:

"In the conduct of any trial, the manner of presentation of a case, whether for the Crown, or for the defence, is a function of what evidence is actually laid before the court at the time of the trial and how counsel perceived that their cases may best be presented in the light of it. However, while the assessment of the significance of the additional evidence not heard at the trial must be conducted in the context of the whole evidence laid before the trial court, in my opinion, the very existence of that additional evidence inevitably means that a new evidential situation has been created, which is bound to render the tactics actually adopted at the trial, in the light of the earlier different evidential situation, obsolete and irrelevant."

We agree with these observations. On the hypothesis that evidence which was not available at the trial would, had it been then available, been led, it must also be hypothesised that the dynamics of the trial, including the approach of the prosecutor, may well have been different. In the present case, if Carter had been led as a witness at the trial and his evidence about his conversation with Green had appeared, notwithstanding the bases for rejecting his whole evidence as coming from a manifestly dishonest source, to be such that the jury might accept it, the Advocate depute's approach might well have been different. This case was on any view not dependent on the jury's holding Green to be a blameless witness.

The importance of Green's evidence lay not in his being innocent of criminal involvement with the stolen goods but in the instruction which he claimed the appellant had given him to drive the truck out of the yard to a particular location. But the involvement of the appellant in that manoeuvre did not depend on Green alone. Shortly before the truck was moved the appellant and Green were observed in conversation with each other by another employee, Burns. The appellant then drove his motor car out of the yard, followed immediately by Green in the truck. The vehicles initially turned in opposite directions but, when the police shortly afterwards were with Green in the car park where the truck had stopped, the appellant's vehicle being driven by him was twice observed passing on the adjacent main road. His interest in what became of the truck was clear. All this occurred after the police had spoken to the appellant, carried out with his agreement a search of the portacabin in the yard and been refused by him permission to search the rest of the yard. There was accordingly, independently of Green's testimony, a strong association evidentially between the appellant and the vehicle in which was found a substantial quantity of the stolen goods. New evidence to the effect that Green may have been complicit in the handling of these goods was not irreconcilable with the evidence led at the trial (see Fraser v HM Advocate, per Lord Justice Clerk Gill at para.[181]).

There was also significant other evidence which pointed to the appellant's guilt. The stolen trailer was recovered from the yard from which the appellant operated his business. It had been concealed in the middle garage there, inferentially from shortly after the assault on the Imperial Tobacco driver early in the morning until the late afternoon of that day. It had been unloaded during that period and pallets and shrink wrapping from it burned openly on waste ground in the yard. The appellant was present at the yard that day. A jury would be entitled to infer that these operations could not readily have been carried out without the appellant's knowledge. The appellant's complicity was confirmed by evidence from the witness David Burns that, in the course of that day, he had been told by the appellant not to open the middle garage. In these circumstances, the critical issue not being whether Green's involvement was innocent but rather whether the appellant's association with the stolen goods was criminative, the new evidence was unlikely, in our view, to have had a material bearing on, or a material part to play in, the determination of a critical issue at the trial. We are not satisfied that it is of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of the issue of the appellant's association with the stolen goods. Accordingly, no miscarriage of justice occurred by reason of Carter's evidence of his conversation with Green not being before the trial court.

We have already held that, as regards the evidence now adduced from Forest and Kindred, there is no reasonable explanation why that evidence was not heard in the original proceedings. On the assumption, however, that our conclusion on that matter is wrong, we now address the significance of that evidence. Evidence can, in our view, be of significance for the purposes of section 106(3)(a) only if, had its existence been known to the accused's legal advisers at the time of the trial, its nature was such that it is likely that it would in fact have been adduced by the defence in those proceedings. The appellant's solicitor expressed in evidence before us the opinion that senior counsel engaged for the trial would, had it then been available, have used the "new" evidence, including that of Forest and Kindred. We seriously doubt whether, as respects the evidence of these individuals, that that is so. Their prospective evidence included not only testimony about Green carrying out "homers" but also the general nature of activities carried out at the yard. Kindred in particular spoke to the yard being the place to which local thieves would commonly take stolen property for onward sale. The danger to the defence of adducing witnesses who might speak not only to illegitimate activity on the part of Green but also to the reputation of the accused's yard as a resetter's lair is obvious. Ignorance on the part of the accused of such practices could only come from the accused as a witness - a prospect which for other reasons his counsel was unlikely to favour. Moreover, the evidence of Forest and Kindred was of limited value to the defence. While it supported the attack on Green's claim to be a person of integrity, it did nothing to absolve the appellant of complicity in connection with the stolen trailer and its contents. In these circumstances we would not, in any event, have been persuaded that the evidence of Forest and Kindred was of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of the critical issue of the appellant's association with the stolen goods. Accordingly, again no miscarriage of justice occurred.

For these reasons the additional ground of appeal must be refused.

At the outset of the hearing of this stage of the appeal Mr Shead tendered a petition and related devolution minute which raised essentially the same issue in relation to Crown disclosure as was raised in McDonald and Others v HM Advocate 2008 S.C.C.R. 154, now awaiting a hearing in the Privy Council. We were advised that a date had been appointed for the hearing of that appeal in the latter part of July 2008. While the Crown opposed the receipt of the petition and minute on the ground that they came too late, we are prepared in the circumstances to postpone a decision on their receipt until the decision of the Privy Council in McDonald has been advised. The disposal of this appeal will accordingly be continued until then.