Javaughn Griffith V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Wheatley,Lord Eassie |
| Judgment Date | 17 July 2013 |
| Neutral Citation | [2013] HCJAC 84 |
| Published date | 17 July 2013 |
| Docket Number | XC376/12 |
| Court | High Court of Justiciary |
| Date | 17 July 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Eassie Lady Smith Lord Wheatley | [2013] HCJAC 84 Appeal No: XC376/12 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL AGAINST CONVICTION by JAVAUGHN GRIFFITH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: C Mitchell; Paterson Bell
Respondent: Wade AD; Crown Agent
17 July 2013
Introduction
[1] On 8 May 2012 at a sitting of the High Court of Justiciary in Glasgow the appellant was convicted after trial of a charge of assaulting a shopkeeper in a licensed grocer's shop in Glasgow and of attempting to rob the shopkeeper of what is described in the indictment as " a bottle of alcohol". He appeared along with a co-accused, Calum Macdonald, who was also convicted by verdict of the jury. The date of the offence was 17 August 2011.
[2] One of the witnesses for the prosecution, additional to the shopkeeper, was a 15 year old girl RW. The evidence which she gave is summarised by the trial judge in his report thus:
"As part of the case against each accused the Crown led the evidence of a 15 year old girl called RW. This young girl described being in the company of both accused for most of the afternoon of 17 August. She stated that during the afternoon there had been ongoing discussion between the two accused about robbing the shop, although she did not really provide any details of what had been said. She also spoke of hearing mention being made of guns during the course of the afternoon. She claimed that during the course of a bus journey to the Anniesland area the first accused said, 'we've got guns'. According to Miss W when the three of them arrived outside the locus she was asked to go inside the shop and find out who was working there, which she did. When she came back out and said, "it's an old man", the two accused ran in. Although she used the word 'ran', it was clear from the evidence of the shopkeeper that the youths entered the premises in an unremarkable way."
[3] The appellant had tendered a special defence of alibi in advance of the trial. In due course he gave evidence in support of that defence. The appellant's evidence in chief is summarised by the trial judge in these terms:
"The appellant gave evidence in support of his previously intimated special defence of alibi. He denied that he had been one of the persons within the victim's shop, although he accepted that he had been in the company of his co-accused and Miss W up until a short time before the offence. The appellant's evidence was that no mention had been made of any robbery until near to 4.30 pm when he, Calum Macdonald and Miss W were sitting on a wall at Crowe Road. At this point he claimed Miss W said that she knew of a shop which they could rob. She named it and said that there was no CCTV cameras either in the vicinity or within the shop itself. According to the appellant he had responded by saying that he wasn't going to rob a shop. He also said that the co-accused responded by saying that he hadn't come out to rob a shop. The appellant's evidence was that he then got up and left, taking a bus to visit a friend who lived in Kingsway Court. According to him he left the other two sitting at the wall."
The trial judge then notes in his report that in cross examination by the Advocate depute the appellant acknowledged that the suggestion of the co-accused and Miss W meeting another tall Jamaican youth within a few minutes of him leaving them, who then joined in a robbery, sounded rather far- fetched.
[4] Prior to her cross-examination of the appellant, counsel for the co-accused intimated her intention to invoke section 266(4)(c) of the Criminal Procedure (Scotland) Act 1995 - "the 1995 act" -and to cross-examine the appellant respecting his previous convictions, a copy of the schedule of which she had obtained from the trial Advocate depute. Counsel for the co-accused submitted that the evidence given by the appellant contained evidence against the co-accused Calum Macdonald, as that concept had been construed in Gallagher v HM Advocate [2010] HCJAC 30; 2011 JC 201 following the test set out in Murdoch v Taylor [1965] AC 574. She submitted that the appellant had done so in two respects. First, having maintained that he had not been present in the shop, the appellant had thereby disputed that he was the person who made the demands of the shopkeeper, the position of the co-accused being that he had simply been with the appellant in the shop when the appellant had attempted, without warning, to carry out the robbery. Secondly, the appellant had given evidence from which it could be inferred that the co-accused was aware from what he had said had been said by RW of a plan to rob the shop. Counsel for the co-accused further submitted to the trial judge that if, as she was contending, the appellant had thus given evidence against his co-accused, she had a right, which was not moderated by any element of discretion on the part of the trial judge, to cross-examine the appellant respecting all of his previous convictions.
[5] The trial judge upheld those submissions. He held that the test of giving evidence "against" the co-accused was satisfied and in his report to this court the trial judge makes clear that he considered that, once that test was satisfied, he had no discretion as to whether the cross-examination of the appellant on the basis of his previous convictions could be restrained.
[6] The appellant's record of offending included, in particular, a conviction on indictment on 18 October 2010 of three charges of assault and robbery for which he received a custodial sentence of 16 months' detention. In cross-examination it was put to the appellant that he had been convicted before a jury in October 2010 and in response the appellant stated that he had been convicted of four charges of assault and robbery. It was then taken from him that he had been released from his sentence in May 2011; and that he was responsible for the offence in question.
The grounds of appeal
[7] Two grounds of appeal were advanced in this appeal.
[8] In short summary the first ground argued was to the effect that the trial judge was in error in thinking that whenever the test of one accused having given evidence against a co-accused was satisfied, the co-accused was entitled to cross-examine him without being subject to any discretionary control by the court. The duty of the court in terms of article 6 of the European Convention on Human Rights to ensure a fair trial reinforced a need to interpret the provisions of section 266(4)(c) as giving the trial judge a measure of discretion sufficient to ensure fairness.
[9] The second ground of appeal, again in summary, is couched as a "quasi Anderson" (Anderson v H M Advocate 1996 J C 29) ground of appeal to the effect that trial counsel failed to advise the appellant, when discussing whether he should give evidence, of the risk that were he to give evidence in support of his plea of alibi his previous convictions might be put before the jury. In response to this ground of appeal trial counsel has with commendable frankness expressed a mea culpa. He regrettably overlooked the terms of section 266 and did not give to the appellant the advice which he ought to have given.
The legislation
[10] The terms of what is currently found in section 266(4) of the 1995 Act were originally introduced by section 1 of the Criminal Evidence Act 1898. They include:
"Section 266. - Accused as witness
........
(4) An accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged, unless -
(a)......
(b) the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establishing the accused's good character or impugning the character of the complainer, or the accused has given evidence of his own good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or of the witnesses for the prosecution or of the complainer; or
(c) the accused has given evidence against any other person charged in the same proceedings."
Subsection (5) of section 266 was introduced by section 24(1)(b) of the Criminal Justice (Scotland) Act 1995 and it provides:
"(5) In a case to which paragraph (b) of subsection (4) above applies, the prosecutor shall be entitled to ask the accused a question of a kind specified in that subsection only if the court, on the application of the prosecutor, permits him to do so."
The first ground of appeal
[11] Counsel for the appellant prefaced her submission by drawing to the court's attention that, by virtue of the entry into force of the Scotland Act 2012 and the Act of Adjournal (Criminal Procedure Rules Amendment)(Miscellaneous) SSI 2013/72 on 22 April 2013, the devolution issue with which the first ground of appeal was associated now fell to be treated as a compatibility issue. From her standpoint, that alteration in the law had the consequence that it was no longer necessary to focus on any act of the Lord Advocate in order to raise any question of compatibility with Convention rights. The question now became whether the lower court, as a public body in terms of the Human Rights Act 1998, had acted incompatibly with the appellant's right under article 6 ECHR to a fair trial. We did not understand the advocate depute to dispute this explanation of the practical consequences of the transition from a devolution issue to a compatibility issue.
[12] Turning more particularly to the first ground of appeal, counsel confirmed that she accepted that the evidence given by the appellant in chief did amount to evidence "against" the co-accused in the two respects contended for at the trial by counsel for the co-accused. To that extent, the test set out in ...
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Javaughn Griffith V. Her Majesty's Advocate
...whether it was appropriate to grant leave to appeal to that court. [12] Accordingly this application for leave to appeal is refused. [1] [2013] HCJAC 84; 2013 SCCR 448; 2013 SLT 944 [2] 2001 SCCR 62; 2001 SC (PC) 43 [3] [2004] 2 AC 323 ...