Alan Carmichael v. Her Majesty’s Advocate [2016] HCJAC 123

Note of appeal against conviction:-The appellant was convicted after trial on indictment at the sheriff court in relation to a charge of assault and robbery. The appellant appealed against his conviction on the grounds that the sheriff had been wrong to prevent the the defence (or the Crown) making any reference before the jury to a warning given by the sheriff to a Crown witness about prevaricating which had been given outwith the presence of the jury and as a result a miscarriage of justice had occurred. The circumstances were that a Crown witness, Craig Ferguson, was called to give evidence for the Crown and during the course of his examination in chief the sheriff formed the view that the position of the witness was untenable as he had blatantly and repeatedly contradicted himself. The sheriff asked the jury to retire and warned the witness that he was at risk of being found to be prevaricating and the witness was put in the cells pending obtaining legal advice. Before the trial recommenced, outwith the presence of the jury, the sheriff indicated that neither the Crown nor the defence should refer to the warning which had been given to the witness outwith their presence. The witness returned to the witness box and indicated that he had felt intimidated by the presence of certain individuals in the public gallery. The court was then cleared and the witness resumed his evidence during which he gave incriminatory evidence against the appellant. It was submitted here on behalf of the appellant that, whilst it was routine for sheriffs to ask juries to retire before raising any issue of prevarication with a witness and then giving the witness the opportunity to seek legal advice before resuming his evidence, the instruction in the present case from the sheriff for parties not to refer to the warning restricted the cross-examination of the witness as to the reasons for the change in his evidence and resulted in a miscarriage of justice. Here the court refused the appeal. The defence had not raised the matter with the sheriff and the instruction that was given did not prevent the cross-examination taking place as the direction to parties was only given immediately prior to the resumption of the witness’s evidence. The court observed that, in terms of Gall v HMA 1992 JC 115, it is competent for the defence to cross-examine on such matters. In any event the court took the view that, even if the court had agreed with the primary submission, any additional cross-examination along the lines suggested on behalf of the appellant was unlikely to have strengthened the defence position or undermined the Crown case in light of the manner in which the witness had responded to cross-examination.