Perth man loses appeal against attempted murder conviction based on court’s failure to provide photo to jury

Lady Dorrian

About this case:

• Citation:
  [2022] HCJAC 30
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Mark Wishart was sentenced to six years’ imprisonment after being convicted of striking two pedestrians with his car in the centre of Perth. He argued that the trial judge had erred in considering that the request by the jury was effectively one for additional evidence.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, along with Lord Matthews and Lord Boyd of Duncansby. Hay, advocate, appeared for the appellant and Cameron, solicitor advocate, for the Crown.

Pic or close up

The charge originated from an incident which took place between midnight and 1am in Perth’s town centre. A man, Scott Peletier, had been trying to hail a taxi on the roadway of South Street when the wing mirror of the appellant’s car struck him. Mr Peletier ran after the appellant’s car and aimed a kick at it. After driving on a little, the appellant executed a handbrake turn and drove his car at speed back towards Mr Peletier in an attempt to hit him. A second attempt was later made during which a second passer-by, Kirk Fiskin, was thrown over the bonnet of the vehicle.

The appellant’s car was stopped by the police on the same night after a witness spotted the vehicle again and shouted, “that’s the vehicle”. Most of the incident was captured on CCTV, which also showed the appellant’s car as missing an alloy wheel cover. Numerous witnesses gave evidence about their impression of the driver, with most suggesting he was of mixed race or had dark skin. It was not in doubt that the appellant, a white Scottish male, had been driving the vehicle involved in the incident at the time he was stopped by the police.

Shortly after retiring to consider the verdict, the jury asked the court if it could have a “pic or close up of the accused for us to see in a clear way”. After seeking submissions on the point, the trial judge refused the request, stating that the jury’s verdict must be based on the evidence it had heard in court. Both counsel indicated that they were satisfied with this approach at the time.

It was submitted for the appellant that the trial judge had erred in considering that the jury were effectively seeking to access additional evidence. The speech of defence counsel had emphasised the difference between the descriptions given by the eyewitnesses and the appearance of the accused. It was said that this illustrated the importance of the matter and that the failure to accede to the request, having impeded the ability to present the defence, resulted in a miscarriage of justice.

Ample evidence

Lord Boyd of Duncansby, delivering the opinion of the court, began: “We do not think the trial judge was correct to conclude that the jury were asking for further evidence. Although they asked for ‘a pic’ they also referred to a ‘close up’. An accused person is a participant in the trial and his presence is a matter of fact; it is not subject to the rules of evidence. The accused has a right to be present at his trial and the jury have a right to see the accused as evidence is given. If description evidence is given they are entitled to compare the description of the perpetrator with the accused in the dock.”

He continued: “This request was a matter for the discretion of the trial judge, to be exercised in the interests of justice and in the particular circumstances of the case. The trial judge did not appreciate this. He did not purport to exercise a discretion and treated the issue as one of law. To that extent, and that extent alone, he erred.”

However, on whether the judge ought to have granted the jury’s request if considered as a matter of discretion, Lord Boyd said: “Although the trial judge commenced by suggesting that the request should be refused he made it abundantly clear that he was willing to consider any submissions to the contrary. No such submissions were made. [The] acquiescence of counsel remains a relevant issue. Had it been thought to be in the best interests of the appellant for the request to be granted one might have expected defence counsel to take a different stance. In these circumstances it cannot be said that there was any manifest unfairness in the course which was adopted.”

Addressing any effect that might have been had, he added: “Notwithstanding that the civilian eyewitnesses could only provide a general description of the driver, there was ample evidence that the appellant was the driver at the time, including his own admission, and the fact that it was agreed that he was the registered keeper of the vehicle. The vehicle was specifically identified as being the same as that used in the attack. The physical damage to the vehicle the appellant was driving was consistent with the nature of the incident, the passenger side wing mirror having struck the first complainer and the dent in the same side rear door was consistent with that complainer having succeeded in kicking the vehicle as it drove away. The missing alloy wheel trim was consistent with CCTV footage of the vehicle involved in the attack. The appellant’s actions in driving off when confronted by the police were also relevant.”

Lord Boyd concluded: “A close up of the appellant would have added little to the preponderance of circumstantial evidence identifying the appellant as the perpetrator. The trial judge adequately addressed the dangers of identification in a case such as this in his charge to the jury. He clearly recognised the importance of the issue, and addressed the matter in detail, reminding the jury that powers of observation were fallible; that errors occurred in identification; [and] that there was no dock identification of the appellant. Thus, even if we considered that there was an inherent unfairness arising from the judge’s error, it would be impossible to conclude that there had been a miscarriage of justice.”

The appeal against conviction was therefore refused.