James Carslaw V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Clarke,Lord Mackay of Drumadoon |
| Court | High Court of Justiciary |
| Date | 22 July 2008 |
| Published date | 22 September 2008 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Eassie Lord Clarke Lord Mackay of Drumadoon
|
|
| 2008 HCJAC 51 OPINION OF THE COURT delivered by LORD
NOTE OF APPEAL AGAINST CONVICTION
by
against HER MAJESTY'S ADVOCATE Respondent. |
Act: (First) Brodie; Levy & McRae, Glasgow
(Second) Duguid Q.C., Anderson; HBM Sayers, Glasgow
The Anderson Partnership.
(Third) Stacey DuguidQ.C., Balfour;G. Anderson
HBM Sayers, Glasgow
Alt: Bain Q.C., A.D., Gill; Crown Agent.; The Anderson Partnership.
Appellant: Findlay, Q.C. et Young,; Ross & Fox, Glasgow
Respondent: K. Stewart, AD; Crown Agent
22 July 2008
February 200825 July 2008
[1] The appellant was prosecuted in the High Court of Justiciary along with a co-accused, Sharon Catherine Harkins, on an indictment in the following terms::
"(1) on 17 August 2004 at Flat 1/4, 54 Norfolk Court, Glasgow you SHARON CATHERINE HARKINS and JAMES WILLIAM BARRY CARSLAW did assault John Diver or Divers, residing there, repeatedly punch, kick and stamp on his head and body, headbutt him, knock him to the ground and repeatedly strike him on the head and body with a piece of wood, a hammer and an ashtray or similar instruments and you did murder him;
and
(2) on 17 August 2004 at Flat 1/4, 54 Norfolk Court, Glasgow you SHARON CATHERINE HARKINS and JAMES WILLIAM BARRY CARSLAW did steal a jacket, a suit, a blanket, a jewellery box and a quantity of jewellery".
After trial both the appellant and the co-accused were convicted of those charges.
[2] In advance of the trial bBoth the appellant and the co-accused lodged notices incriminating the other. Without it beingFor the purposes of this appeal it is not necessary to rehearse the facts as narrated by the trial judge in any detail. I, it is sufficient for presentthose purposes to say that, at the trial each of the accused sought at trial to attribute responsibility for the fatal blows leading to the death of the victim in charge (1) to the other accused. The co-accused (who, as evident from the terms of the indictment, appeared with the as the first accused) gave evidence. The appellant thereafter did not, apparently relying on evidence of what had been said by him at interview with police officers.
[3] The single point taken in this appeal against conviction stems from a passage in the speech to the jury by counsel for the co-accused in which counsel made reference to the fact that, in contrast to his client, the appellant had not given evidence. Put shortly, the contention for the appellant is that the comments made by counsel for the co-accused were inappropriate and went well beyond what might be regarded as reasonable in the context of the trial; and that the trial judge failed to take appropriate steps in his charge to the jury to rectify the prejudicial effects, for the appellant, of what had been said by counsel for the co-accused. Following the hearing of the appeal, we retired to consider the submissions by counsel for the appellant and the Advocate depute. We thereafter announced that the appeal would be refused but that we would give written reasons later. This is what we now do.
[4] The relevant passage of the address by counsel for Sharon Harkins, the co-accused, in which he deals with the fact that the appellant did not give evidence is in these terms:
"Now I'm confident that in due course Mr Mr Findlay [counsel for the appellant] will have a great deal to say to you about Sharon Harkins. And he will tell you, I'm sure, that she was the one who did the killing. And in these circumstances it's appropriate that I say something about his client, James Carslaw.
But James Carslaw did not give evidence, and he did have every right not to give evidence. He's entitled to remain in the dock, as he did, to sit back and to say to the Crown, 'Okay, you brought this charge, you go ahead and prove it', which is what they'd like you to do. Every right to do so, but the other side of that coin, ladies and gentlemen, is that he had every right to do what Sharon Harkin[s]) did and to give evidence; to go in there and give his evidence. He had every right to go in there and explain Sharon's evidence against him because he knew it was coming. No surprise about what Sharon has said. No secrecyt about it at all. The police told him during the course of the interview, 'Sharon's sticking you in it'. And Mr Mr Carslaw has a copy of the transcript of Sharon's interview the same as you have. And yet [sic] long before this case came within these doors. Well, of course, he could (inaudible) all rights. We're told about (inaudible). Well be that as it may. His solicitor or even Mr Mr Findlay we suppose would have read, so, 'Look this is what Sharon's saying about you, pal. What have you got to say about it?'. We'll never know. We'll never know what he may have said by way of explanation or denial.
Likewise with the evidence of James Gillespie. Mr Mr Findlay's assertion to Gillespie that Jay ([i.e. the appellant]) said nothing at all. You may remember he principally put that to Gillespie; is not evidence. That's not evidence. Only Mr Mr Carslaw could speak (inaudible). Only Carslaw could answer or explain Gillespie's evidence. But the morning after Gillespie told you that Sharon's (inaudible) Gillespie said the next morning, Jay has said to him 'I'm going away to (inaudible) cause I've got myself in a bit of trouble cause I fought with someone'. Only by giving evidence could Carslaw deny that and give you an explanation for that. He chose not to. His right, your loss you may think.
And what about the evidence that his boxers and his trousers were at his ankles as he sat in the chair in old John's? Mr Mr Findlay never suggested to Sharon when she was giving her evidence she was lying or mistaken about that. Now remember, she said 'I woke up, Jay's boxers were at his feet and I shouted, 'What the fuck's going on?'. I was angry at Jay'. She said later, 'It was (inaudible).
Her evidence wasn't challenged by Mr Mr Findlay. Instead, Mr Mr Findlay as I noted it said to Sharon 'If the jury accept his trousers were at his ankles, he didn't know that'. And Sharon's answer (inaudible) was, 'I can's say that. I wouldn't know what happened before I woke up'.
Carslaw in his taped interview accepted his boxers were round his ankles. We've got a copy of that (inaudible). (inaudible) see what he says. So it never seems to be accepted, even by (inaudible) that his client's boxers and his trousers were at his ankles. How did they get there? Did Carslaw remove them himself while he was sitting in a chair or, highly unlikely you may think, did old John remove them without Carslaw being aware of it when he was sitting in that chair? Or did Sharon remove them, which Mr Mr Findlay brutally put to her and she completely denied. But had he given evidence these are the sorts of questions I most certainly would have included to Mr Mr Carslaw, but he never did.
So we'll never know, we'll never know because the only person who could answer these questions, Mr Mr Carslaw, chose not to. That, as Mr Mr Findlay will emphasise, is his right. And I do too; of course it is his right. But bear in mind the questions Mr Mr Findlay put to witnesses such as Gillespie. He said no such thing. Nonsense. No evidence. That evidence could only have come from Mr Mr Carslaw.
Ladies and Gentlemen, I ask you not to rush to accept the Depute's invitation and to convict Sharon Harkins. There's no point in doing so and then looking back having done so in your wee quiet moments, when you're alone, saying to yourselves, 'Was I right? Was I right to accept the Crown's evidence? Did I have no reasonable doubt?'".
[5] Mr Mr Findlay who appeared for the appellant at both the appeal and at the trial accepted that counsel for the co-accused had very properly emphasised the right of the appellant not to give evidence and to that extent had set up what was discussed in the discussion before us as the "book-ends", being thean inaccurate exposition of the law to the effect that an accused was wholly entitled not to give evidence. As Mr Mr Findlay candidly accepted, his concern was essentially that the comments of counsel for the co-accused on the pre-trial situation might have given the impression that the appellant might have said something to his legal advisers, adverse to the appellant's interest, which had prompted the decision not to lread the evidence of the appellant. Mr Mr Findlay's reference to the pre-trial situation was essentially to the concluding sentences of the second paragraph of the address of counsel for the co-accused which we have quoted above.
[6] With similar candour, which we also appreciate, Mr Mr Findlay indicated that but for the decision in Shevlin v HM Advocate 2002 S.L.T.739; 2002 S.C.C.R.388, he would probably not have taken this appeal. Traditionally, where there were cross-incriminations the approach as between counsel for the respective accused was more akin to that of "all is fair in love and war". ThatHowever, Shevlin appeared to indicate limits to that freedom of counsel for one accused to make comment on the case for another accused. Mr Mr Findlay submitted that what had been said by counsel for the co-accused was inappropriate and ill chosen and strayed into dangerous territory by inviting the jury to speculate.
[67] In our view the statement oforf general rule or principle made by the Court in Shevlin is to be found in paragraph 17 of theits Opinion of the Court:
"In a case such as this counsel is entitled to present his client's defence to the fullest extent that is open to him. In the exercise of his right to comment on the case for another accused, counsel is so...
To continue reading
Request your trial