Frank Carberry V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Marnoch,Lord Justice Clerk |
| Judgment Date | 05 September 2013 |
| Neutral Citation | [2013] HCJAC 101 |
| Published date | 05 September 2013 |
| Court | High Court of Justiciary |
| Date | 05 September 2013 |
| Docket Number | XC202/13 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lady Paton Lord Marnoch | [2013] HCJAC 101 XC202/13 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the reference from the Scottish Criminal Cases Review Commission FRANK CARBERRY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________ |
Appellant: SM McCall, A Kelly (Solicitor Advocate); John Pryde & Co (for Taylor & Kelly, Coatbridge
Respondent: I McSporran AD; the Crown Agent
5 September 2013
The Conviction and Appeal
[1] On 17 May 2006, at the Sheriff Court in Glasgow, the appellant was convicted, by the unanimous verdicts of the jury, of three charges of indecent assault on males during the years 2000, 2004 and 2005. On 28 June 2006, the sheriff imposed an extended sentence of seven years, five years of which were custodial. On 8 September 2006 the appellant lodged a Note of Appeal against conviction and sentence. Leave to appeal against conviction was granted in respect of one ground only; that being a challenge to the sufficiency of evidence on the first of the three charges. Leave to appeal was refused in relation to the remaining grounds, but granted on sentence. Some months went by pending the appellant's contemplation of an application, under section 107(8) of the 1995 Act, to reinstate the excluded grounds; the content of which has no bearing on the current proceedings.
[2] In or about February 2007 the appellant's agents received information from one John Daly. This was incorporated into an affidavit which was lodged in the appeal process on 16 May 2007. Mr Daly is the brother-in-law of the appellant. He is the husband of Marie Daly, who is the appellant's sister and who took over the running of the appellant's business (Ace Building & Maintenance) during his incarceration (see her letter of 17 January 2008). Mr Daly is a taxi driver. He maintained that, on or about 31 January 2007, some eight months after the trial, he was instructed to pick up a Mrs D from her address in Dumbarton Road. For some reason, he came to fall into a conversation with her about jury duty. Mrs D started telling him about a jury on which she had served in the course of the previous year. She described this as a "same sex" rape case and confirmed that it had been the appellant's trial.
[3] According to Mr Daly, Mrs D told him specifically that one of the jurors had been a university lecturer. This lecturer had:
"... told all the jurors that she had gone on the internet at home and put in [the appellant's] name. She found various articles in newspapers about him and informed the other jurors that these included allegations that he was involved with Arthur Thompson. This juror had then 'painted pictures' of [the appellant's] past to all of them".
Mrs D had also said that a juror, who was a mortgage consultant or broker, had gone on the internet on the night after the lecturer had done so. He "had then verified what the lecturer had found on the internet to other members of the jury". There was further information allegedly from Mrs D about various supporters of the appellant being in court during the course of the trial and whom the jurors regarded as intimidating.
[4] On 16 May 2007, the court "received" the affidavit and allowed the appellant 14 days to propose a relative ground of appeal. By this time, the section 107(8) application had been presented. The court appointed a diet of 6 June 2007 at which to decide whether to allow this application and to consider whether the new ground of appeal should form part of the appeal. The proposed ground of appeal, under reference to Mr Daly's affidavit, read as follows:
"From the terms of that affidavit it appears that the jury had access to prejudicial information about the appellant which they should not have had".
On this basis it was maintained that the appellant had been denied a fair trial.
[5] The court, which consisted of the Lord Justice Clerk (Gill), Lords Nimmo Smith and Eassie, refused to allow the proposed ground (and relative Devolution Minute) to be "received". They also refused the section 107(8) application. There are no written reasons for either decision recorded. It is clear nevertheless that the court considered that the hearsay of Mr Daly provided an insufficient basis for the launch of an investigation into the workings of the jury. Such a decision would have been made standing the court's knowledge that the jury had been given (charge p 3) the standard direction that:
"you must reach a verdict only on the basis of the evidence and in the light of the directions in law".
This direction was repeated (see eg p 8) because of what had been said in the speeches to the jury. It is a direction which many judges and sheriffs give at the commencement of a trial, before the evidence is led. It is not known whether that was done here, because the sheriff has never been asked for his comments on this matter. However, it would appear (see infra) that at least some of the jurors were aware that they should not have been seeking out extraneous information on the appellant. This would point towards some form of direction having been given in advance of what was ultimately undoubtedly said in the charge.
[6] It is apparent from the papers, notably a letter from Messrs Balfour and Manson dated 30 October 2007, that, several months later, consideration was being given by the appellant to seeking the leave of the court to appeal both decisions to the Privy Council. A diet (21 November) was assigned to hear this application. However, by letter dated 13 November (from Messrs Beltrami & Co), the application for leave was abandoned. On 16 March 2008 the appellant abandoned his appeal against conviction and his appeal against sentence was refused on 3 April 2008.
The SCCRC Reference (and source material)
[7] The appellant proceeded to make an application to the Scottish Criminal Cases Review Commission almost immediately (ie April 2008) upon grounds which included those based upon the same hearsay of Mrs D as set out in Mr Daly's affidavit. Whilst noting (Reference para 157) the "strange coincidence" of the affidavit's content, the SCCRC interviewed Mr Daly and, at least to a significant degree, afforded his account a certificate of credibility. After sundry communings, the SCCRC petitioned the court in order to ascertain whether the SCCRC could interview the jurors in respect of the "extrinsic" matters referred to by Mr Daly. Following upon the affirmative answer of the court (SCCRC, Petrs (No 2) 2010 SCCR 775), the SCCRC decided first to interview Mrs D.
[8] It is of importance, for present purposes, to note precisely what the SCCRC Reference states that this juror said to the statement taker (as distinct from what Mr Daly deponed that she had said to him). It is as follows:
"165. In the course of her interview, D confirmed that one of the jurors had found information about the applicant on the internet. She thought that this juror was a mortgage broker..."
She "flatly" denied that she had been a party to the information. Rather, she had told the juror that she was not interested in the information and would decide the case on its merits. She did not know whether the mortgage broker/consultant had told anyone else about his discoveries and could not remember anything about a lecturer.
[9] The court was provided with the statement taken from Mrs D by the SCCRC on 9 August 2010. The form of this document suggests that, rather than being asked simply to provide her own narrative, the affidavit of Mr Daly was put to her for comment. This is a recurrent feature in the statements taken from other jurors. It is less than ideal as it rather places the statement taker in the role of an inquisitor, who has formed his own preliminary view, rather than an inquirer. Be that as it may, Mrs D stated that she did remember the taxi journey which she had taken over three years previously. However, she said that the content of Mr Daly's affidavit was not correct in so far as it stated that she had said that two jurors had "googled" the appellant's name. Rather, as is also observed in the Reference (supra para 165), only one juror had done this. Mrs D had told that juror, who was male, that she did not want to know and that she was going to look at the case on the basis of the evidence led in court. There is no note of when, during the course of the trial, Mrs D's exchange with this juror took place. On reflection, Mrs D considered, perhaps not surprisingly, that the taxi journey may have been a "set up"; in that Mr Daly was not one of her regular drivers. She was concerned that one of the "iffy looking" people dressed in suits in the public gallery during the trial might have followed her home and obtained her address.
[10] Mrs D's account was taken by the SCCRC (para 167) as being "partially confirming" of the content of Mr Daly's affidavit "insofar as she said that a jury member had obtained information from the internet about the applicant". This may be so, at least if it is understood to mean that a juror had told her that he had done so. However, it is a striking feature of Mrs D's statement that, apart from the existence of the taxi journey and a mention of one googling juror, it is a different, if not a radically different, account of events from that contained in the hearsay report from Mr Daly. In particular, her account is of a male mortgage broker (not a female lecturer) finding information on the internet. It contains no reference to him, or anyone else, telling the other jurors about finding newspaper articles about the appellant, and, in particular, of any involvement with Arthur Thompson. Indeed, it does not say that what the juror had found was in any way adverse to the appellant. It makes no mention of any other juror carrying out an internet search and confirming what the first one had found to other members of the jury. The significance of all of...
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