Appeal against conviction over claim sheriff ‘restricted’ cross-examination of witness refused

The appellant argued that there had been a “miscarriage of justice”, but the Criminal Appeal Court dismissed the claim.

The Lord Justice Clerk, Lady Dorrian (pictured), sitting with Lord Menzies and Lady Clark of Calton, heard that the appellant Allan Carmichael was convicted after trial of assault and robbery.

One of the witnesses at the trial, Craig Ferguson, was an acquaintance of the appellant, and was incriminated by him.

In examination-in-chief his initial position was that he and the appellant had walked home together from a nightclub and that nothing untoward had happened, but he was then confronted with the contents of a police statement in which he had given a different account.

The sheriff interrupted on three occasions to remind the witness that he was on oath and obliged to tell the truth, but eventually, the sheriff considered that the position of the witness was becoming untenable, he having “blatantly contradicted himself” on several occasions.

The sheriff accordingly asked the jury to retire and warned the witness that he was at risk of being found to be prevaricating, and arranged for the witness to be detained in the cells pending the receipt of legal advice.

Before the trial recommenced, the sheriff indicated that neither the Crown nor the defence should refer before the jury to the warning which had been given to the witness in their absence.

The witness later returned to the witness box and he then gave evidence incriminatory of the accused.

He was not challenged about the fact that the sheriff had required to warn him before the jury on three prior occasions, and the agent for the appellant made no motion to the sheriff for permission to challenge him on the warning which he had been given.

However, on appeal it was submitted that it would have been “perfectly proper” for the agent to ask questions regarding the warning, with the suggestion that his “change of heart” came about in order to “avoid a potential finding of prevarication or perjury”.

It was argued that it was “inappropriate” for the sheriff to “restrict cross examination” in this way and therefore there had been a miscarriage of justice.

Refusing the appeal, the judges observed that the procedure adopted by the sheriff in asking the jury to retire before raising the matter with the witness, and giving the witness the opportunity to seek legal advice before resuming his evidence, was all “unexceptional”.

“The sheriff was therefore correct to proceed in the circumspect manner in which he did; nor could he be faulted for seeking to prevent any inappropriate comment by the prosecutor,” the Lord Justice Clerk said.

The judges agreed with the Crown’s submission that the rule preventing the judge or prosecutor acting in the presence of the jury on the potential prevarication or perjury by a witness was one which “exists for the benefit of the defence”.

Lady Dorrian said: “If the agent or counsel for the accused considers that it is in his interests to explore the matter in cross-examination he is at liberty to do so. The first question is therefore whether the sheriff prevented such cross-examination taking place.”

The sheriff’s direction to parties, which was given immediately prior to the resumption of the evidence, was as follows: “…when the trial does resume in a few minutes’ time, neither Crown nor defence should refer the witness to the warning he’s been given outwith the presence of the jury, otherwise there’s little point in putting the jury out whilst we do that”.

The evidence then recommenced with further examination in chief, during which the witness gave the incriminatory evidence referred to above.

At the commencement of cross-examination, the solicitor for the appellant did not seek to address the sheriff in relation to his earlier comment.

Delivering the opinion of the court, the Lord Justice Clerk said: “We do not think that the sheriff’s comment that on the resumption of the case neither party should refer to what happened in the presence of the jury can properly be classed as a ruling that prevented cross-examination of the witness as to the reasons for the change in his evidence.

“All the sheriff was seeking to do was ensure that when the jury returned to court nothing was said immediately about what had happened in their absence. That did not mean that appropriate cross examination could not follow.

“In any event, had the solicitor considered herself to be bound by the sheriff’s observation it was entirely open to her to seek to clarify the matter with the sheriff.”