Michael George Crombie Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Menzies,Lady Smith |
| Neutral Citation | [2014] HCJAC 118 |
| Court | High Court of Justiciary |
| Published date | 04 November 2014 |
| Docket Number | XC674/13 |
| Date | 04 November 2014 |
| Year | 2014 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2014] HCJAC 118
XC674/13
Lady Paton
Lord Menzies
Lady Smith
OPINION OF THE COURT
delivered by LADY PATON
in
the cause
MICHAEL GEORGE CROMBIE
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Targowski QC, Fyffe Solicitor Advocate; Paterson Bell, Edinburgh
Respondent: Scullion AD; Crown Agent
4 November 2014
Introduction
[1] On 24 October 2013, after a trial in Edinburgh High Court, the appellant was found guilty of eight charges, which, read short, were as follows:
Charge 1: 7 September 1989 to 1 June 1990: on various occasions, assaults on AM, to her injury.
Charge 11: 1 March 1993 to 26 April 1994: on various occasions, assaults on KD, to her severe injury and permanent disfigurement.
Charge 12: 1 March 1993 to 26 April 1994: on various occasions, abduction of KD by locking her in and detaining her against her will.
Charge 13: 1 March 1993 to 26 April 1994: on various occasions, assaults on KD, to her injury, and rapes.
Charge 14: 1 March 1993 to 26 April 1994: on various occasions, assaults on ND to her injury.
Charge 20: 1 January 1996 to 30 June 1996: on various occasions, abduction of EU and KM by locking them in and detaining them against their will.
Charge 22: 1 January 1996 to 30 June 1996: on various occasions, assaults on EU to her severe injury and permanent impairment.
Charge 23: 1 January 1996 to 30 June 1996: on various occasions, assaults on EU to her severe injury and permanent impairment, and rapes.
The jury returned unanimous verdicts in respect of charges 1, 11, 13, and 23, and majority verdicts in respect of charges 12, 14, 20, and 22. Subsequently, on 14 November 2013, the trial judge imposed a cumulo sentence of 14 years imprisonment.
Grounds of appeal
[2] The appellant’s case and argument summarises the two grounds of appeal as follows:
“[5] The first ground avers that a miscarriage of justice occurred, the learned trial judge having erred in refusing a motion to desert the trial pro loco et tempore. The motion followed upon evidence from Crown witness 6, [KD], which, it is alleged, created a risk of prejudice to the fairness of the appellant’s trial such as to necessitate desertion.
[6] The second ground of appeal avers that the sentence imposed was excessive.”
Background to the grounds of appeal
[3] The appellant’s case and argument notes KD’s evidence as follows:
“[8] The relevant passages of evidence are narrated by the learned Trial Judge at pages 5 and 6 of his report, and can be separated into three broad categories; (1) That the appellant had been in prison for significant periods of time; (2) That the appellant had taken her son on an armed robbery; and, (3) That the appellant had assaulted her son [S] on an occasion about which the Crown had previously given an undertaking not to lead evidence.
Prison
[9] The learned Trial Judge notes three passages of evidence where the witness volunteered that the appellant had spent time in prison. It is not suggested that the Crown was at fault for these responses. However, the witness’ evidence was to the effect that she had been in a relationship with the appellant for around two years during which time he had stayed with her, but for most of the time they had been in a relationship, the appellant had been in prison.
[10] It is respectfully submitted that it can be inferred from this that the appellant spent significant periods of time in prison. Whilst there was no explicit evidence that he had been previously convicted resulting in prison sentences, this was a reasonable inference from the suggested frequency and length of time said to have been spent by the appellant in prison.
Armed Robbery
[11] Immediately following the passages referred to, the witness was asked whether anything happened to her children. She responded that the appellant had assaulted the children. She was asked how old [J] was. Her response to this question was that [J] was 4 and the appellant took him on an armed robbery.
[12] It is accepted that the witness volunteered this information and that the Crown could not reasonably have anticipated such a response. However, the effect of this response was that the jury had before it evidence to the effect that the appellant was a man who not only had spent significant periods in prison but had also taken a 4‑year‑old boy to commit an armed robbery.
Assault on [S]
[13] The appellant has a conviction from 30th November 1994 at Perth Sheriff Court in respect of a contravention of Section 12 of the Children and Young Persons (Scotland) Act 1937. This conviction related to an assault against the witness’ son [S].
[14] The Crown gave an undertaking not to lead evidence in connection with the incident that resulted in this conviction.
[15] As noted above at paragraph [11], the witness was asked questions about her other son, [J]. She was then asked by the learned Advocate Depute, “What about [S]?” Her response was that the appellant had assaulted [S] one night and she had to get the police involved. This response referred to the conviction that was the subject of the agreement, it being the only occasion where the police were involved.”
[4] On 15 October 2013, at the conclusion of KD’s evidence‑in‑chief, the defence solicitor‑advocate moved the trial judge to desert the trial pro loco et tempore. The trial judge refused the motion, for the reasons given at pages 7 to 8 in his report to this court, as follows:
“I note that it is accepted for the appellant that the references to him having been in prison, and to an armed robbery, were volunteered by the witness and were not attributable to fault on the part of the Crown. In the course of the arguments before me as to whether there had in effect been a breach of section 101 of the Criminal Procedure (Scotland) Act 1995, the advocate depute indicated that the answers given had not been anticipated and indeed could not have been expected given the terms of the particular questions put. In relation to the third reply, the witness’s answer had been inconsistent with her police statement.
As to the matter of the witness’ response to the effect that the appellant had assaulted her son, [S], that was a matter plainly covered by charge 16. The agreement reached with the Crown in this respect, as noted in the relevant minute, dated 20 August 2013, was that ‘no questions will be asked from any witnesses in relation to the conviction of the accused at Perth Sheriff Court on 30 November 1994’. It did not appear to me that the question which elicited the witness’ response was in breach of that agreement or that, given the terms of charge 16, the answer was prejudicial.
I was referred to several authorities. The solicitor advocate for the appellant made reference to Graham v HMA 1983 SCCR 314 for the consideration by the court in that case of the comparable remark ‘That cow’s got me the jail again’. For the Crown I was referred to Fraser v HMA (2013) HCJAC 117 at paragraphs (27) and (28), (44)‑(51), and (56)‑(58); and Hill v HMA 2005 JC 259 at paragraph (25). The submission for the appellant was made on the basis that, given the references to him having been in prison, and to an armed robbery, there was a material risk that the jury would form the view that he had been the subject of previous conviction. In reply, the advocate depute pointed out that, in relation to an earlier Crown witness on the previous day, evidence relating to a sexual assault by the appellant on her son, an allegation which did not feature in the indictment, had been elicited in cross-examination in the course of reference to the witness’s police statement. It was suggested that in the context of this particular trial, such evidence relating to sexual abuse carried greater moral opprobrium than a reference to armed robbery.
In repelling the submission, I had regard to the guidance set out in Fraser (supra). I took into account the following factors:
(1) the starting point in considering the matter was whether in the light of the evidence which had emerged, it was still possible for there to be a fair trial.
(2) the matter had to be considered in the round, and not solely in relation to those parts of the evidence relied upon in justification of the submission, taken in isolation.
(3) part of the context was the evidence brought out on the previous day by defence questioning in similar circumstances, amounting to an allegation of sexual assault on a young boy. That allegation was of similar effect, in this context, to the allegation that the appellant had taken part in an armed robbery. Neither allegation was referable to the charges in relation to which the relevant witnesses were speaking. Neither allegation, in itself, breached the prohibition on disclosure of prior criminal convictions. I accepted that in the context of the charges before the jury, greater moral opprobrium might be attached to the allegation of sexual abuse of a child than to that of armed robbery.
(4) the three responses by [KD] containing references to imprisonment, viewed objectively, could not have been anticipated as answers to the questions put. In that regard, it could not be said that the Crown was at fault.
(5) I noted that although reference to imprisonment was not per se a reference to conviction, there was, nevertheless, an adverse inference which might be drawn.
(6) In the exercise of any discretion, given the comments made in Fraser, I considered whether an appropriate direction would be sufficient to preserve the appellant’s right to a fair trial. In that regard, I recognised the presumption that the jury would follow directions given. In that context, while it was said for the appellant that credibility was a critical factor in the case, that was a matter which the jury could determine against the background of proper directions.
Having regard to the whole circumstances and in particular the context in which...
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