Gary Goddard v. Her Majesty’s Advocate [2019] HCJAC 48

Note of appeal against conviction:- The appellant was convicted unanimously at the sheriff court of an indictment containing a charge of assault to severe injury, impairment, and permanent disfigurement by the use of a knife under deletion of the word “permanent”. Following the trial jurors were requested to return a feedback form anonymously indicating their experience as jurors. One of the forms was returned which indicated a juror had “googled” the appellant that he had an analogous prior conviction involving the use of a weapon, and had told at least one other juror who had returned the form. From the information received the court proceeded on the basis that the internet search was conducted when the juror had not yet received a warning not to do so which suggested the conduct was naïve rather than improper. The court noted that it was not known at what stage the information was imparted to the author of the feedback form i.e. whether before or after the verdict, however, the court proceeded on the basis that the information did not play any part in the jury’s deliberations. The appellant appealed against his conviction. In Carberry v. HMA 2014 JC 56 the court stated that the test to be applied is “...whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased...”. Here it was submitted on behalf of the appellant that given some of the jurors were aware of an analogous previous conviction that was sufficient to raise justified and legitimate doubts about the jury's impartiality and there was a real possibility that the jury would be materially prejudiced to the appellant particularly given that self-defence was the critical issue in the case and his credibility central to that. It was submitted on behalf of the Crown that disclosure of an analogous conviction prior to the verdict does not of itself necessarily mean that the jury are biased but, rather, for a trial to be deserted (or a conviction quashed) that disclosure would need to have a prejudicial effect. It was submitted that such a disclosure does not necessarily render a trial unfair (Fraser v. HMA 2014 JC 115). Here the court refused the appeal. In light of the circumstances the court did not consider that the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased or lacked impartiality. The court interpreted what had happened as the juror making the search prior to being given the standard warning not to and it was not known whether that information was given to other jurors contrary to the subsequent instruction. The court made clear that the act of disclosure does not of itself amount to an inference of bias and there was no information to indicate that the disclosure in the present case had any effect in the jury’s deliberations. The court went on to consider that, in any event, the circumstances did not amount to a miscarriage of justice. The court considered that there was no reason to think that the jury did not follow the trial sheriff’s legal directions and did not deliver a verdict in accordance with the oath they had taken. The court could see no evidence of the information disclosed having corrupted the jury’s deliberations as the author of the feedback form made no such allegation. The court also considered the compelling strength of the case against the appellant in coming to the view it did.