Sher Khan V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Justice Clerk,Lord Mackay of Drumadoon |
| Neutral Citation | [2010] HCJAC 38 |
| Date | 28 April 2010 |
| Year | 2010 |
| Published date | 28 April 2010 |
| Court | High Court of Justiciary |
| Docket Number | XC615/08 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Osborne Lord Mackay of Drumadoon | [2010] HCJAC 38 Appeal No: XC615/08 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST CONVICTION by SHER KHAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead; Barony Law Practice, Edinburgh
Respondent: G Bell, QC; Crown Agent
28 April 2010
The background circumstances
[1] On 1 September 2008 at a sitting of the High Court at Glasgow, the appellant was found guilty of charges (1), (3) and (4) in the Indictment which he faced. The charges of which he was convicted were in the following terms:
"(1) On 28 April 2007 at Ladbrokes Bookmakers, 146 Allison Street, Glasgow, you did assault Mohammed Nazir ... and did repeatedly punch him on the head and body to his injury; you did commit this offence while on bail, having been granted bail on 6 March 2007 on two occasions at Glasgow Sheriff Court;
...
(3) On 28 April 2007 at Ladbrokes Bookmakers, 146 Allison Street, Glasgow you did assault Deborah Tait ... and did strike her on the head with a knife or similar instrument to her injury and permanent disfigurement; you did commit this offence while on bail, having been granted bail on 6 March 2007 on two occasions at Glasgow Sheriff Court; and
(4) On 28 April 2007 outside Ladbrokes Bookmakers, 146 Allison Street, Glasgow, you did assault Gerald Byrne, now deceased, and did strike him on the neck with a knife or similar instrument and did thereafter stab him on the body with a knife or similar instrument all to his severe injury, permanent disfigurement and to the danger of his life and did attempt to murder him; you did commit this offence while on bail, having been granted bail on 6 March 2007 on two occasions at Glasgow Sheriff Court."
[2] On 23 September 2008, the appellant was sentenced to seven years and six months detention in cumulo on the charges on which he was convicted, the six months being attributable to the bail aggravations.
[3] The appellant has appealed against his conviction on several grounds. So far as they are relevant in the present context, they are in the following terms:
"...
(2) During the defence case, when the appellant was giving evidence, the Crown, in cross-examination, revealed the appellant's criminal record. Whilst he was being questioned by the Advocate depute, the appellant said words to the effect 'I've never been involved in an incident ... here ... such as this in my life.' The Advocate depute repeated the phrase 'Never in my life' rhetorically to the appellant. The appellant then said 'Yes I've had a speeding conviction, nothing serious'. The Advocate depute pressed on. He was asked about a breach of the peace conviction. The depute proceeded to quiz him about the remainder of his previous record. The Advocate depute made no motion in terms of section 266 of the 1995 Act before he began to quiz the appellant on the remainder of his (summary and non-analogous) record. There was no intervention by the trial judge during the aforementioned events. Counsel for the defence then intervened and made an objection, subsequently heard outwith the jury (sic) on three broad grounds, namely: (1) the Advocate depute should not have launched an attack on the appellant's character on such slender grounds - the utterances of the appellant being ambiguous and being open to ambivalent interpretation; (2) even if he was right to do so, he should have firstly made a motion to the judge in terms of section 266(5) outwith the presence of the jury before he brought the appellant's record out with the court's consent only; and (3) the evidence of at least part of his record having been put in open court without the appropriate motion being made, the appellant's trial was severely prejudiced and the judge should desert the proceedings (sic). After consideration of matters the judge decided that the appellant having breached section 266(4)(b) was liable to his record being disclosed. Thereafter, the jury came back and the Advocate depute put the rest of the appellant's record to him. By putting the record which includes a breach of the peace, an attempt to defeat the course of justice and various road traffic contraventions all at summary level, to the appellant in front of the jury irrevocably prejudiced the appellant's case. The Advocate depute erred in putting the record to the appellant without prior court sanction and notice to the prejudice of the defence team and ultimately the appellant. The accused can only lose the protection from revelation of his record if it was properly withdrawn by the court after the Advocate depute has made that motion outwith the presence of the jury. This did not initially happen: Graham v HM Advocate 1984 S.L.T. 67; Cordiner v HM Advocate 1993 S.L.T. 1991; Leggate v HM Advocate 1988 S.C.C.R. 391. A miscarriage of justice has occurred.
(3) Also the court must also consider said motion. The learned trial judge took the appellant's response as only evidence of his good character. It is submitted that his response, to vigorous questioning by the Advocate depute, could also have been habile (sic) to the fact that he had never been in the High Court before or been involved in something as serious this matter (a double assault and a separate attempted murder charge on indictment) which was something he had not been charged or convicted with before: this was not unequivocally giving evidence of his own good character; Leggate v HM Advocate (supra). Accordingly a miscarriage of justice has occurred.
(4) It is submitted that the errors in paragraphs (2) and (3) above were compounded by the learned trial judge in his directions to the jury. Various Crown witnesses, Nos 3, 6, 8 and 9 were questioned, by defence counsel, as to their previous statements in order to demonstrate that their evidence (in the witness box) had not been consistent throughout and undermined their credibility and reliability. The police statements of the various witnesses were put to them regarding their evidence of description of the assailant. All questioning tended to be exculpatory on (sic) manner favourable to the appellant (sic). Coll, Petitioner, 1977 S.L.T. 58; Leckie v HM Advocate 2002 S.L.T. 595. In page 5, para. 1 the judge says 'There are matters put to witnesses, but the witnesses cannot remember them or does not know anything about them is not evidence....' and page 8, line 17, he says 'Firstly, you will recall we have heard pieces or bits from police statements, part of police statements of some of the witnesses read out and referred to. You can only accept the material you heard from those police statements as evidence, if it is accepted by the relevant witness in court, in the witness box.' There is no explanation as to how to deal with possible issues of credibility and reliability of witnesses and what adverse effect that might have on the assessment of the testimony of said witnesses. It is respectfully submitted that these parts of the trial judge's directions are insufficient and inadequate in the circumstances of this case where section 263 was heavily utilised by the defence and thus the jury were not specifically directed on a central issue in the defence case. It is submitted the jury, in said circumstances, could fail to apply the evidence in the correct legal framework thus denying the appellant a fair trial and that a miscarriage of justice has resulted."
[4] In view of the substance of grounds of appeal (2) and (3), it is appropriate to note that, at the time of his trial, the appellant had certain previous convictions. These were all at summary level. He had convictions, dated 20 April 2006 for, first, breach of the peace, aggravated by the offence having been committed whilst he was on bail; and, second, attempt to pervert the course of justice, again aggravated by a breach of bail. On 11 January 2007 he was convicted on four charges under the Road Traffic Act 1988, sections 3, 35(1), 87(1) and 143(1) and (2). Finally, on 3 April 2007, the appellant was convicted of a breach of the peace, aggravated by the offence having been committed whilst he was on bail.
[5] In relation to the contents of grounds of appeal (2) and (3), the trial judge explains in his Report to this court that he took the opportunity to have the relevant part of the evidence transcribed. It is in the following terms and formed part of the cross-examination of the appellant by the Advocate depute:
| "Advocate depute: | You fled to Birmingham after committing this assault didn't you? |
| Accused: | If I fled to Birmingham after committing assault you prove that I fled. I am sure that you would have had some records from aeroplanes and my father took me down on the 19th or 20th I cannot recollect but with my girlfriend and my father drove us down. I remember he was stopping at a few petrol stations on the way with service stations. |
| Advocate depute: | But you didn't come straight back up to find out what all this was about. Your mother's been in custody. She has been interrogated and it's all been a complete mistake that you could presumably put right by going up and saying to the police 'look I was in Birmingham whatever your looking for me for it's not right'. |
| Accused: | I was glad my mother was released and I had nothing to do with it so I thought why should I take in any bother with any incident when other people what have happened, why should I get involved when I've never been involved in any incident such as this and that is the truth if that is what you are going to ask. |
| Advocate depute: | Never been involved in an incident such as this? |
| Accused: | Never in my life like this, no. |
| Advocate depute: | You've never been involved in an incident such as this in you life? |
| Accused: | In my life, never like this. |
| Advocate depute: | Okay. |
| Accused: | Yeah, I have had a road traffic for driving, speeding.... |
To continue reading
Request your trial