Criminal Appeal Court rejects claim trial judge’s charge to jury was ‘unbalanced’

Refusing the appeal, the Appeal Court of the High Court of Justiciary observed that a complaint of imbalance had to be a “substantial one”, but in this case it could not be said that there was partiality in the trial judge’s charge.

Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Malcolm, heard that the appellants Steven Green and Alan D’Ambrosio were each sentenced to seven years’ imprisonment after being convicted following a trial at the High Court in Edinburgh in March 2016.

Unbalanced

The first appellant’s two interlinked grounds of appeal were, that: first, the trial judge had “misrepresented the evidence” in his charge; and, secondly, the charge had not been impartial.

Under reference to Snowden v HM Advocate 2014 SCCR 663 and Beck v HM Advocate 2013 JC 232, it was maintained that the overall tenor of the charge was “unbalanced” in favour of the Crown.

It was also submitted that the trial judge had made “a number of errors of fact”.

The court was told that after the jury had retired to consider their verdicts, a matter was raised by counsel for the first appellant, who asked the judge to expand upon the defence case.

Counsel argued that, having enumerated aspects of the Crown case, the judge should do so in respect of the defence case, but the judge declined to give the directions requested.

The first appellant further submitted that the Crown case had been summarised by the judge over several pages of text, whereas that of the defence was contained within 16 lines, which indicated “a lack of impartiality”.

Insufficient evidence

On behalf of the second appellant, it was submitted that there was “insufficient circumstantial evidence” against him.

The Crown required to place the second appellant at the locus at the time of the assault, but the evidence “lacked the aptitude and coherence required” and the circumstances relied upon by the Crown were neutral, albeit that a limited number of them could give rise to an adverse inference.

The second ground was, like that of the first appellant, partiality in the charge.

It was argued that the trial judge had failed to set out the explanations provided by the second appellant in relation to a number of the circumstances which were said by the Crown to be “against” him.

No miscarriage of justice

However, the appeal judges ruled that there was “no miscarriage of justice”.

Delivering the opinion of the court, the Lord Justice General said: “The trial judge stressed several times that the assessment of the evidence was for the jury. He described, in the context of what was a circumstantial case, where they could find the evidence from which they could infer guilt on the part of the appellants, or one or other of them. He made it clear that it was their decision to determine whether adverse inferences could be drawn or not.

“When he turned to the evidence itself, the judge properly put the various circumstances relied upon by the Crown to the jury in the course of explaining to them how the circumstantial case was built up. He made no comment and expressed no view on whether the inferences, which the Crown had asked the jury to draw, ought to be made or not.

“As he correctly said, when invited to set out the defence position on each circumstance, that had been for counsel to do in their addresses to the jury. He had already mentioned the need for the jury to consider what had been said at that time. Having dealt with the Crown case, the judge had turned to those of the defence and outlined their nature…

“The time taken by the judge to analyse the Crown case, as distinct from that for the defence, simply reflected the amount of evidence led during the course of the trial. In short, the court is not satisfied that the criticism of partiality has been made out.”

The court further held that the error in relation to the date of the meeting was a “simple mistake” which, when read along with the rest of the passage dealing with this matter, would have been patent.

“It was clear that the meeting had taken place before the incident, which was the point of importance,” the judges said.

Lord Carloway added: “For the reasons given in relation to the first appellant’s case, there was no partiality present in the trial judge’s charge, nor any error of fact of material importance.

“In all these circumstances, no miscarriage of justice can be seen to have arisen.”