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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Wardrop v. Her Majesty's Advocate [2005] ScotHC HCJAC_19 (01 March 2005) URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_19.html Cite as: [2005] HCJAC 19, [2005] ScotHC HCJAC_19 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Marnoch Lord Hamilton Lord Weir
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[2005HCJAC19] Appeal No: XC1073/03 OPINION OF THE COURT delivered by LORD HAMILTON in APPEAL AGAINST CONVICTION by ALASTAIR JOHN WARDROP Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead; Balfour & Manson
Respondent: McLeod; Crown Agent
1 March 2005
[1] The appellant was on 28 May 2002 convicted, by the unanimous verdict of the jury, after trial in the High Court at Glasgow of assault and robbery. He was sentenced to nine years imprisonment. [2] The victims, Mr and Mrs Whiteford, lived in a farmhouse situated about half a mile down a dirt track from the main road between Neilston and Stewarton. At about 9.20 p.m. on 28 January 2002 Mrs Whiteford answered the door bell to find a young man standing there who gave an account of his car having broken down. He asked if he could use the telephone. Mrs Whiteford let him in and, as they approached the living room where her husband was, the man grabbed her with one hand and put a knife of about 9 inches in length to her throat with the other. He said: "I just want the guns" or "Get the guns". Mr Whiteford had on the premises various shotguns and rifles for sporting and target purposes. They were kept in a lockfast cupboard in another room within the house. Mr Whiteford was compelled by the assailant, who continued to hold the knife at Mrs Whiteford's throat, to obtain the key and to open the cupboard. Several guns and some ammunition were taken from the cupboard and placed in the hall of the house. [3] The assailant then proceeded to tie the hands of the Whitefords with plastic tie bands which he had carried with him into the house. He compelled Mrs Whiteford to go with him to an outhouse where some fencing wire was obtained. He then tied the legs of each of Mr and Mrs Whiteford with that wire. [4] The assailant then proceeded upstairs where he obtained a quantity of jewellery and a valance from one of the beds. Once downstairs, he proceeded to roll the guns in the valance. He then, in order to separate the victims, made Mrs Whiteford go upstairs. Before leaving with the guns and jewellery he cut certain telephone wires and took the keys for the Whitefords' car. Certain other items of property were also taken. [5] Mr Whiteford was subsequently able to cut the ties on his own hands and to free his wife. Mrs Whiteford discovered that one of the telephones was still working and she phoned the police. On their arrival they found the Whitefords' car half way down the dirt track road. [6] At the appellant's trial there was no dispute that the offence libelled had been committed. The only live issue was whether the appellant was the perpetrator. [7] Eyewitness evidence as to identification was led from Mr and Mrs Whiteford. Each identified in court the appellant as the perpetrator. Each had earlier so identified him at an identification parade. Other evidence led by the Crown implicated the appellant. This included evidence from a police officer that, after the appellant had been detained on 30 January, he had at an initial interview told police officers that, having read about the robbery in a particular local newspaper, he knew who had been involved in it. In that context he said that he had read that jewellery had been stolen. Although jewellery had in fact been stolen, it was not at the time of the appellant's statement known to the police (or indeed to the Whitefords) that such property had been taken; nor had that information been contained in the newspaper item. Evidence was also led, without objection, of a subsequent interview in which the appellant gave an account of going to the farm with two other men to carry out the assault and robbery but of having not himself gone into the farmhouse; only the other two had, he claimed. His description of events in the course of that interview displayed, on one construction, special knowledge of the circumstances of the robbery. [8] Prior to the trial the appellant lodged a special defence of alibi to the effect that at the time when the crime was committed he was at a particular address in Paisley. He gave evidence to that effect at the trial. Certain other evidence was also led in support of his alibi. The appellant in evidence denied that he had been at the farm that night. He stated that he had made up the account which he had given of going to the farm with two other men (and the particulars he had given in that account) because, while at the police station (at some point between the end of the first interview and the beginning of the second), he had been told by a detective constable that "if you admit to it we will let you out". That officer, who gave evidence in the course of the Crown case, had been asked in cross-examination whether any such inducement had been given; he had denied that that was so. [9] In his speech to the jury counsel then appearing for the appellant, among other submissions, invited the jury to take the view that the Whitefords' identification of the appellant as the assailant in the farmhouse was unreliable. In relation to the incriminatory statements made in the course of the second interview, he invited the jury to accept the appellant's evidence that he had invented the account he had then given. In introducing this aspect counsel made a passing reference to the appellant's evidence that he had been told that, if he confessed, he would get out. The Advocate Depute had earlier invited the jury to disbelieve that evidence and to find support for the Crown case in the statements made by the appellant in the course of the second interview. In his charge to the jury the trial judge did not review the evidence in any detail. He gave no direction to the jury in relation to their use of the statements made by the appellant at either interview. In his report to us (lodged on 27 November 2003) he states that he has no recollection of any evidence being given at the trial of an inducement and that he has no note of evidence to that effect. [10] The appellant was sentenced on the day on which he was convicted (28 May 2002). On 20 November 2003 there were lodged with the Justiciary Office grounds of appeal in which it was contended that the appellant had been denied a fair trial as a consequence of two failures of counsel to present his defence properly, as a result of which there had been a miscarriage of justice. The second of these alleged failures is no longer insisted in. The first is in the following terms:-"No motion was made for a trial within a trial. Standing the appellant's position that he was offered an inducement to admit his involvement, that motion ought to have been made."
"I have not had time to consult my trial notes, assuming they can now be traced.
As far as the grounds of appeal are concerned, my comments are as follows;
1. I cannot recall if a motion for a trial within a trial was actually made. If it is true that no motion was made, it would probably would have then become an issue for the trial judge to decide whether it was more appropriate to follow that procedure. (sic)
...
I shall endeavour to trace any remaining papers in order to be able to give a more detailed reply if and when I am asked to do so."
No more detailed reply appears to have been subsequently sought or received.
[12] In a letter dated 12 August 2004 the solicitor stated, among other things:"So far as regards any Motion for Trial within a Trial, this particular issue was at the discretion of Counsel."
"The conduct [of counsel or solicitor] must be such as to have resulted in a miscarriage of justice, otherwise [section 106(3) of the Criminal Procedure (Scotland) Act 1995] will not apply. It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That can only be said to have occurred where the conduct was such that the accused's defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence which he wished to be put or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him."
That principle and its application to particular circumstances have been discussed in a number of subsequent cases, of which one of the most recent is McBrearty v H.M. Advocate. At para. [36] of its Opinion in that case, the court recognised that it may be difficult to draw the dividing line between a judgment made by counsel in the presentation of the defence and a failure properly to present it at all. The court also noted, under reference to McIntyre v H.M. Advocate, that even in the area of professional judgment, counsel may make a decision that is so absurd as to fly in the face of reason. In McIntyre at page 388 the court, adopting a phrase from the English case of R. v Clinton [1993] 1 W.L.R. 1181, distinguished what can be regarded as a reasonable exercise of the discretion which counsel has in the conduct of the defence from conduct which runs contrary to "the promptings of reason and good sense".
[16] The primary basis upon which Mr Shead contended that the appellant's trial was unfair was the circumstance that his trial counsel had not asked the court to hear a trial within a trial to rule upon the admissibility of the contents of the second interview. It was not suggested that counsel's omission was contrary to any instructions as to his defence which the appellant had wished to put; but the failure to take a step which obviously should have been taken had not been explained by trial counsel in his response to the court's invitation. [17] We observe at the outset that the response by trial counsel to the court's invitation to him to comment on the grounds of appeal has not been of much assistance to this court. It does not address the criticism made that the motion ought to have been made by him. Part of counsel's difficulty in responding fully may have been due to the lapse of time (largely due to the appellant's belatedness in lodging these grounds of appeal) since the trial, with attendant problems of recollection or of ready access to relevant papers. However, it is unfortunate that trial counsel did not, either of his own initiative or otherwise, expand upon his initial response - even if only to say that, given the lapse of time, it was impossible for him to make any helpful comment. While counsel has no obligation to respond to such invitations (Anderson v H.M. Advocate at page 132), a full response may materially assist in the due administration of justice in the appeal (see McBrearty v H.M. Advocate). Nonetheless, we are of the view that this appeal can appropriately be dealt with in the absence of further assistance from trial counsel. [18] It is to be assumed that the appellant's instructions to his counsel and solicitor included a claim that, prior to being interviewed on the second occasion, he had been told by the detective officer that, if he admitted to the crime under investigation, he would be "let go" and that it was for that reason that, in the course of that interview, he had made the incriminatory statements. Counsel was in a position to put that suggestion in cross-examination to the detective officer. In the absence of any suggestion to the contrary, it is further to be assumed that trial counsel, who had practised in the criminal courts for several years, was aware of the leading decision of this court in Thompson v Crowe, including the summary provided by the Lord Justice General at page 202. The proper inference in these circumstances is that counsel took a deliberate professional decision not to ask the trial judge to hear a trial within a trial for the purpose of determining the obviously controversial factual issue of whether the appellant had been induced to confess to participation in the crime and the consequential legal issue of the admissibility against the appellant of the contents of the second interview. It is not known why that decision was taken and it would be unproductive to speculate as to the particular reasons for it. But there is no requirement to ask for a trial within a trial and there are many situations, of which the present case may well be one, where it may properly be conceived by a professional representative to be in the interests of the accused not to pursue such a course, due regard being had to the prospects of success or failure in excluding the evidence, to the advantages and disadvantages of witnesses potentially giving evidence twice (in the absence and later in the presence of the jury) on the same subject matter, to the prominence or otherwise which, in the particular circumstances, it is appropriate to give to an alleged unfairness and to many other considerations. This is, despite Mr Shead's contention to the contrary, essentially, in our view, a matter of professional judgment and discretion, as envisaged in the authorities, for the legal representative conducting the defence. [19] In the present case the appellant's defence was that he disputed the Crown evidence implicating him in this offence and that he was elsewhere at the material time. Evidence in relation to the alibi was led from the appellant himself and from another witness. His counsel challenged the identification evidence led from Mr and Mrs Whiteford on the basis that it was unreliable. The issue as to whether the appellant's statements at the first interview amounted to special knowledge implicating him in the crime was fully explored, the appellant giving in evidence an alternative explanation for his reference at that time to jewellery having been taken. The matter of inducement was also on the basis of evidence led put in issue at the trial, the jury ultimately being invited by his counsel to accept the appellant's testimony on that matter and his explanations as to how he was, although not the perpetrator, able to make the statements at interview which he did. Although this court has not been provided with information as to the particular reasoning which went into the decision not to ask the court to hear a trial within a trial, a decision to adopt that course is, in the whole circumstances of this case, perfectly intelligible; these circumstances included the fact that there was no prospect, even if the evidence of the second interview had been excluded, of making a successful submission that there was no case to answer. On no view can a decision to adopt the course which was here adopted be said to "contravene the promptings of reason and good sense" or to be "so absurd as to fly in the face of reason". Counsel's conduct was not such as to have the practical effect of denying to the appellant a fair trial. Nor are we satisfied that, in the particular circumstances of this case, such a trial was denied to him by reason that the trial judge gave no direction in relation to the use of statements made in the course of an interview conducted against the background of a disputed issue of inducement. As that matter was presented to the jury, the critical questions (namely, (1) whether or not an inducement was made and (2) whether the account given by the appellant at the second interview was substantially an invention by him or, instead, disclosed special knowledge of the circumstances of the crime) were essentially questions of credibility. In that regard the jury were given all the usual directions. No miscarriage of justice accordingly occurred. [20] In these circumstances it is unnecessary for us to express a view on the subsidiary contention advanced by the Advocate depute that, in any event, having regard to the weight of the Crown case apart from the contents of the second interview, there was no miscarriage of justice. The appeal is refused.