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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Gardiner v. Her Majesty's Advocate [2002] ScotHC 24 (07 March 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/24.html Cite as: [2002] ScotHC 24 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Cameron of Lochbroom Lady Cosgrove Lord Kingarth
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Appeal No: 707/00 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in NOTE OF APPEAL AGAINST CONVICTION by IAN GARDINER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Miss Scott, Q.C.; Anderson Strathern
Respondent: Macaulay, Q.C.; Crown Agent
7 March 2002
"My notes of her evidence at this point are that she said: "I didn't know him by name at that time. I knew he worked in the same factory as my daughter and had seen him before. He had spoken to her after it and asked her what she had seen".
It is abundantly plain that the reference to the appellant speaking to the daughter and what she had been asked was derived from hearsay evidence. The cross-examiner did not take the matter any further. However when the procurator fiscal came to re-examine the witness he returned to the matter. The sheriff tells us this:
"According to my notes, (the witness) said that the appellant had approached her daughter the morning after the incidents. The procurator fiscal asked her what the appellant had said . My note is that the question was "What did he say?". Objection was taken to the question on the basis that the answer would be hearsay. I allowed the question. The matter had arisen in cross-examination and it was permissible in my view for the procurator fiscal to pursue it to a limited extent as the answer to the question was in fact known. Accordingly, I was prepared to allow that question, anticipating that the answer would be the same as had previously been given. I was doubtful that procurator fiscal should or could pursue the matter much further, but was prepared to allow him to ask the question which he posed.
As it transpired the answer given by the witness was, according to my notes:- "He asked her if she had seen anything - he told her to keep quiet and keep her mouth shut - she was pretty upset and came home from work". The procurator fiscal very properly did not pursue the matter further with the witness."
It is to be noted that the daughter of Marion Anderson was not a witness in the case.
"At the very end of his cross-examination having put to the appellant that his account of his actings on the night of the events was fraught with falsity and untruths and that he had been one of the ringleaders, the procurator fiscal asked a question about the appellant having spoken to Mrs. Anderson's daughter. I do not have a note of the question about the appellant having spoken to Mrs. Anderson's daughter but it was very clear that the procurator fiscal wished to raise with the appellant what Mrs Anderson had said about this matter in her evidence the previous day.....My note is to the effect that I did not allow (the procurator fiscal) to pursue the question of the appellant speaking to Mrs. Anderson's daughter. I recall using the words "I do not think you should pursuer that matter, Mr. Fiscal". If the appellant's solicitor had not actually voiced an objection by that time, he was certainly on his feet. My recollection is that the procurator fiscal paused and I said to him that if he wished to pursue the matter I would hear him outwith the presence of the jury. He then indicated that he would not insist in the question. Thereafter his cross-examination concluded.
The matter was dealt with quickly and without argument. In light of the gratuitous remark the witness had made the previous day I was anxious not only that the matter was not re-opened but also that as little attention be drawn to it as possible."
It only remains to say that the sheriff recognised that he was bound to consider the question of whether he should give a direction relating to the matter of hearsay evidence when he came to charge the jury on the fourth day of the trial. By that time evidence had been given by and for the appellant and by another co-accused. In addition the jury had heard speeches for the Crown and for each of the four accused, two of whom were also individually charged with assault. The sheriff explains that because he considered that as little attention as possible should be drawn to "this very short piece of Mrs. Anderson's evidence", he decided not to give a direction in relation to hearsay. As he states:-
"There was no other evidence in the case of a hearsay nature and therefore any direction on hearsay would have to relate to this particular piece of Mrs. Anderson's evidence. It seemed to me that to include such a direction would simply draw attention to, highlight and remind the jury of the gratuitous remark. No further reference had been made to the remark, in speeches or otherwise. I had not been asked by the appellant's solicitor, or any of the other solicitors appearing in the case to include a direction on the matter. On balance, I considered that in all the circumstances the best course was not to draw the jury's attention to this remark."
"We are of opinion, however, that it was a matter for the trial judge to determine in his discretion whether he ought to say anything to the jury about it or not. In some cases he may feel that for him to say anything to the jury would remind the jury of something that they may have forgotten, or would merely emphasise the objectionable evidence. There may be other cases where the judge concludes that it is necessary and desirable that he should give the jury directions to disregard some piece of evidence which is prejudicial to the accused. What the judge should do in this sort of situation is very much a matter for his discretion (Fyfe v. H.M. Advocate). In the present case the trial judge took the view that any implication contained in the question was not clear to the jury, and that in these circumstances it was preferable not to refer to the matter again. It cannot be said that trial judge's decision not to refer to the matter was a matter of discretion which no reasonable judge could have taken."