APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Hardie Lady Smith	[2010] HCJAC 125 Appeal No: XC754/09 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by DAVID HAY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Shead; Arrol; Capital Defence

Respondent: G Mitchell QC, Advocate depute; Crown Agent

9 December 2010

Introduction

[1] On 28 September 2009 the appellant was convicted by the unanimous verdict of a jury of the following offence:

"On 11 February 2009 at Blazers Fun Pub, 1 Commercial Road, Leven, Fife, you did assault Kenneth Dick ... and did strike him on the head with a pool cue to his severe injury, permanent impairment, to the danger of his life and did attempt to murder him".

[2] The appellant appeals against conviction, contending that the Crown's failure to disclose information about drugs offences relating to two witnesses, namely Steven Fuller and Sandra Hunter, resulted in an unfair trial. The appellant had incriminated a Crown witness, Brian Burt. The appellant's position was that Mr Burt became angry when he was sold an underweight quantity of drugs in Blazers pub, and in an ensuing drugs-related argument, he assaulted the complainer Kenneth Dick. Thus information about the two witnesses' involvement with drugs was material. Without that information, the appellant had been placed at a disadvantage in the trial.

The undisclosed information

[3] As a result of oversight, the Crown failed to disclose the following matters to the defence prior to the appellant's trial in September 2009:

(i) Crown witness number 4, Steven Fuller, had a previous conviction dated 16 March 2008 for possession of cannabis.

(ii) Crown witness number 10, Sandra McGregor Hunter was, at the time of the trial, facing outstanding charges of possession, possession with intent to supply, and being concerned in the supplying of cocaine, the date of the alleged offences being 29 May 2009 and the two loci being High Street, Methil, Leven, and Miss Hunter's home address.

[4] The appellant contends that, had the conviction and outstanding charges been disclosed, the defence would have had material with which to cross-examine the witnesses, undermine their credibility and reliability, and in general support the appellant's account of events.

The evidence

[5] The judge's report and certain transcripts of evidence were available to the appeal court.

The Crown case

[6] Steven Fuller (aged 44) said that he was a regular at Blazers pub. He had not been in the pub on the night of the assault. His evidence concerned two incidents prior to that night, one in summer 2008 near Ladbrokes bookmakers, and one in November 2008 in the pub. On each occasion the appellant attacked him and head-butted him, for no apparent reason. In cross-examination, it was put to Mr Fuller that Blazers pub had quite a bad drug problem, and that its licence had been in jeopardy. He denied that the pub had a drugs problem, although conceding that its licence had been suspended for a period during investigations. Mr Fuller was not asked whether he personally was involved with illegal drugs.

[7] The incriminee Brian Burt described being in Blazers pub during the evening of 11 February 2009. He knew the appellant, and was in his company. At one stage, Mr Burt came out of the toilet and saw the appellant hit the complainer with the heavy end of a pool cue. Mr Burt took hold of the appellant and pulled him out of the pub. They then went to another pub together. Mr Burt denied taking drugs or purchasing drugs that evening from Sandra Hunter and her friend Karen Suttie. He denied being annoyed about being given underweight drugs. He admitted that he had been drinking heavily.

[8] James Lothian did not know either the appellant or Mr Burt. He did not identify the appellant as the assailant, but said that Mr Burt had not been involved in the attack. He described the assailant as wearing jeans and a red t-shirt. That description matched the clothing worn by the appellant that evening. According to Mr Lothian, a fight between Sandra Hunter and Karen Suttie occurred shortly before the assault. Mr Lothian said that he had been drinking since 3pm.

[9] James Todd heard a "crack". He saw the complainer on the floor and the appellant standing beside him with a pool cue in his hand. Mr Todd said that he was "120%" sure that it was the appellant. Brian Burt then took the pool cue from the appellant and pushed him outside. Mr Todd admitted to having a drink problem, but not a drug problem. He said that he had been drinking rum and coke from about 12 noon.

[10] Sandra Hunter (aged 39) was in the pub on the evening of 11 February 2009. She accepted that she had had a fight with Karen Suttie, but that had occurred some two and a half to three hours before the assault. At the time of the assault, she was standing with her back to the pool table where the appellant and the complainer were playing pool. She was occupied with a fruit machine. She heard a commotion behind her. She heard the appellant say "There's no cunt getting to speak to me like that". She did not know to whom he was referring. She turned round and saw the complainer lying on the floor by the pool table. Brian Burt was with the appellant, his hands on the appellant's chest. Mr Burt was nearest the pool table. Miss Hunter had the impression that Mr Burt was trying to keep the appellant back. She had not seen a blow being struck. When questioned about drugs, Miss Hunter said that she was not aware of anyone taking drugs in the pub. She denied any personal involvement with drugs, or any sale of drugs to Mr Burt. She denied having an argument with Mr Burt about an underweight amount of cocaine. She refuted the suggestion that Mr Burt became irate. She acknowledged that she had been a bit tipsy. She had consumed ten nips of brandy and two other drinks.

[11] Alan Laverty was the manager of the pub. He identified the appellant as the person who committed the assault. He said that events that evening had nothing to do with drugs. He admitted attempting to protect the reputation of the pub by having the injured complainer removed from the premises, and by cleaning up blood-stains. He pled guilty to attempting to defeat the ends of justice.

[12] Ann Rands, forensic scientist, gave evidence about a downward directional spot of the complainer's blood found on the mid-front of the right leg of the appellant's jeans.

The defence case

[13] The appellant gave evidence that Brian Burt was taking drugs that evening. Mr Burt said that he was going to see Sandra Hunter (who was, according to the appellant, a known drug-dealer) to get "more stuff". He went to Blazers pub to buy drugs from Miss Hunter. He got a parcel from Karen Suttie. A fight then broke out between Miss Hunter and Miss Suttie. Mr Burt was raging about being sold a short weight of drugs. He subsequently had words with Miss Hunter. Voices were raised. The appellant turned round and saw the complainer on his knees. Mr Burt was at the appellant's side with a pool cue, shouting about being "ripped off". The appellant had not seen the complainer being assaulted. He saw him lying on the floor. The following day, Mr Burt told him that he had "cracked a guy in the Fun pub the other night" and that his "gear was all covered in blood". The appellant accepted that he had been very drunk on the night of the incident.

[14] Two defence witnesses were led on the appellant's behalf. Hamish Murray said that Brian Burt seemed "high" that night, as if he was on drugs. Gary Craig said that the group which included the appellant and Brian Burt was boisterous and animated. He thought that they may have been taking cocaine.

Submissions
Submissions for the appellant
[15] Counsel invited the court to construe the non-disclosure test set out in McInnes v HM Advocate 2010 SCCR 286 in the context first, of Holland v HM Advocate 2005 1 SC (PC) 3 and Sinclair v HM Advocate 2005 1 SC (PC) 28, neither of which had, prima facie, been overruled or disapproved in McInnes, and each of which had been further developed, explained and amplified by McInnes; and secondly, the tests to be adopted when deciding whether fresh evidence should be led, or when assessing whether a misdirection or the erroneous admission or exclusion of evidence had resulted in a miscarriage of justice. Whichever perspective was adopted by the appeal court, the threshold resulting in the quashing of a verdict should be broadly the same. Thus non-disclosure should result in the quashing of the conviction unless the court was satisfied that, had the undisclosed material been available to the defence, the jury would inevitably have returned the same verdict. While therefore it was accepted that, in terms of McInnes, the appeal court had to bring its judgment to bear upon each particular case, that judgment should be exercised by applying the McInnes test so construed. Emphasis was placed upon Lord Rodger's reference in McInnes to Stirland v DPP [1944] AC 315 at page 321, and Lord Brown's reference to R v Pendleton [2002] 1 WLR 72. Reference was also made to Allison v HM Advocate 2010 SCCR 277; Woodside v HM Advocate [2010] HCJAC 94; R v Pendleton cit. sup.; Touati v HM Advocate 2008 SCCR 211; Murray v HM Advocate 2001 SCCR 114; MM v HM Advocate 2007 SCCR 159. As a result of the Crown's non-disclosure, the trial had been unfair. There had been a miscarriage of justice, and the conviction should be quashed.

Submissions for the respondent
[16] The Advocate depute accepted that there had been a breach of the Crown's duty of disclosure. However no miscarriage of justice had resulted. Whatever tests had been defined in other areas of law, the Supreme Court in McInnes had resolved any ambiguity which might have been perceived to have arisen from the observations of Lord Rodger in Holland. Reference was made to McInnes, Allison, and Woodside at paragraphs [14] to [15]. The appellant's argument failed to address the whole circumstances of the case, and the weight of the evidence against the appellant. Mr Fuller had not been present on the night of the assault, and was not therefore a witness to the offence. In the case of Miss Hunter, it was accepted that her credibility and reliability would be affected by the outstanding charges. But that would not be fatal to the Crown case in view of the number of eye-witnesses to the assault (three: Burt, Todd, and Laverty) and the forensic evidence. Miss Hunter had not seen the blow being struck. Further, there was no evidence other than the appellant's that Miss Hunter had sold drugs in the pub that night, or that she had engaged in a drugs-related argument with Mr Burt resulting in him "raging" (in other words, in a frame of mind such that he might commit an assault). Thus the disclosure of the outstanding charges would have been of limited evidential value to the appellant. On one view, Miss Hunter's evidence had been helpful to the appellant: for example, she placed Mr Burt as being nearer to the pool table (and thus the complainer) than the appellant. Ultimately, if all the evidence of Miss Hunter were put to one side, there was ample evidence against the appellant. The jury's verdict had been unanimous, reflecting the overwhelming evidence. In all the circumstances, the disclosure of Miss Hunter's outstanding charges would not have resulted in a real possibility of the jury returning a different verdict. Nor would Mr Fuller's previous conviction have resulted in such a possibility. The appeal should be refused.

Discussion
[17] The Advocate depute accepted that there had been a breach of the Crown's duty to disclose the information noted in paragraph [3] above. However, as Lord Rodger emphasised at paragraph 77 of McDonald v HM Advocate 2008 SCCR 954:

"While a failure by the Crown to disclose material may be incompatible with Article 6(1), it by no means necessarily follows that the accused has not had a fair trial in terms of Article 6, or that there has been some other miscarriage of justice ... the effect of any failure to disclose depends on a consideration of the circumstances as a whole."

[18] The Supreme Court in McInnes v HM Advocate 2010 SCCR 286 set out the test to be applied in non-disclosure cases. Lord Hope observed:

"19. Two questions arise in a case of this kind to which a test must be applied. The first question is whether the material which has been withheld from the defence was material which ought to have been disclosed...

20. The second question is directed to the consequences of the violation. A trial is not to be taken to have been unfair just because of the non-disclosure. The significance and consequences of the non-disclosure must be assessed...The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict...

24. The question which the appeal court must ask itself is whether, after taking full account of all the circumstances of the trial, including the non-disclosure in breach of the appellant's right, the jury's verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome - if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence..."

Lord Rodger agreed, stating:

"30. Of course, an appellant can always argue that, if his advocate had been armed with the statements, it is possible that he could have persuaded the jury to come to a different conclusion. But the law deals in real, not in merely fanciful, possibilities. So in cases like the present, an appellate court will only hold that a trial has been unfair and quash the jury's verdict as a miscarriage of justice if there is a real possibility that, if the statements had been disclosed, a jury might reasonably have come to a different verdict."

Lord Brown said:

"39. The event of non-disclosure...the trial is only to be regarded as unfair if in fact disclosure might have harmed the Crown or helped the defence to such an extent that in retrospect the defence can be shown to have lost a real possibility of acquittal..."

[19] As the Supreme Court considered both Holland and Sinclair before formulating the test in McInnes, it respectfully seems to us that this court should apply that test to the facts of the case without any further attempts at reformulation or construction. Furthermore, Lord Rodger's reference in McInnes to Stirland v DPP does not, in our view, alter the clearly-worded test set out in McInnes. Lord Brown's reference to R v Pendleton simply seeks to compare the test defined by Lords Hope and Rodger with the approach adopted in England in fresh evidence appeals (where the focus is upon unsafe convictions rather than upon miscarriages of justice). Thus we agree with the views expressed in Woodside v HM Advocate [2010] HCJAC 94, paragraph [15], and consider that the test in McInnes would not be properly applied if the appeal court were to ask itself whether the jury would "inevitably" have reached the same verdict had the undisclosed material been available to the defence. As for counsel's submissions that there should be a common threshold in the various tests for quashing a conviction (whether in the context of fresh evidence; a misdirection; erroneous admission or exclusion of evidence; or some other ground) we are not persuaded that it is either necessary or helpful to import guidance from other areas of law into non-disclosure cases when the test applicable in the latter category has been so clearly defined in McInnes.

[20] We turn therefore to apply the test set out in McInnes to the facts of this case. There were three eye-witnesses who identified the appellant as the assailant. Brian Burt came out of the toilet and saw the appellant hit the complainer with the heavy end of a pool cue. James Todd heard a "crack" and saw the complainer on the floor with the appellant standing beside him with a pool cue in his hand. Alan Laverty identified the appellant as the person who committed the assault. A fourth eye-witness (Mr Lothian) gave evidence that the person who assaulted the complainer was wearing jeans and a red t-shirt. That description matched the clothing worn by the appellant that evening. There was also forensic evidence, namely the identification of a downward directional spot of the complainer's blood on the mid-front of the right leg of the appellant's jeans.

[21] In relation to the defence case, the appellant alone gave evidence that Mr Burt bought drugs from Miss Hunter, resulting in his anger over short weight; an argument between Mr Burt and Miss Hunter involving raised voices; the complainer then being seen on the floor; and Mr Burt's subsequent confession to the appellant that he had "cracked a guy in the Fun pub the other night". No other witness spoke of Miss Hunter selling drugs, or being involved in an argument with Mr Burt, or Mr Burt attacking the complainer or admitting to attacking the complainer. The witnesses called in support of the defence (namely Hamish Murray and Gary Craig) could only say that Mr Burt seemed "high" as if on drugs, and that the group that he was with seemed boisterous and animated, as if they had been taking cocaine.

[22] Standing the nature and the weight of the evidence implicating the appellant, we are not persuaded that the disclosure of Mr Fuller's conviction and Miss Hunter's outstanding charges would have resulted in a real possibility that the jury might reasonably have come to a different verdict. Mr Fuller was not present in Blazers pub on the night of the assault. He could not assist the jury about events on that occasion, or about the identification of the assailant. In those circumstances, disclosure of his conviction in 2008 for possession of cannabis would not, in our view, have resulted in a real possibility that the jury would have arrived at a different verdict. As for Miss Hunter, while she was present in the pub on the relevant night, she was concentrating on playing a fruit machine. She did not see the blow being struck, and could not identify the assailant. If her denials of any involvement with drugs were challenged in cross-examination by reference to the outstanding drugs charges, thus undermining her credibility and reliability and to some extent supporting the appellant's account of events, we are nevertheless of the opinion that the nature and the weight of the remaining evidence was such that there was no real possibility that the jury might reasonably have come to a different verdict. The test in McInnes has not in our view been satisfied. We are not persuaded that the trial was unfair, or that there has been a miscarriage of justice.

Decision
[23] For the reasons given above, we refuse the appeal against conviction.