David Kinloch v. Her Majesty’s Advocate [2019] HCJAC 66

Note of appeal against conviction:- On 30 January 2019, at Dunfermline Sheriff Court, the appellant was convicted after trial on indictment of three charges:- (charge 1) on 30 December 2017 behaving in a threatening or abusive manner including uttering threats of violence towards Kieran Locke, whilst in possession of a knife and pursuing him contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010; (charge 2) on 30 December 2017 having a knife in a public place contrary to section 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 as amended; and (charge 4) on 30 December 2017 behaving in a threatening or abusive manner including uttering threats towards police officers and threatening to set his dog on them contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. On 25 February 2019, after obtaining a Criminal Justice Social Work Report, the sheriff sentenced the appellant to 3 years 6 months imprisonment in cumulo on charges 1, 2 and 4. The appellant appealed against conviction and sentence albeit leave was only granted in relation to the conviction itself. The ground of appeal related to the trial sheriff’s refusal to desert the trial pro loco et tempore on the motion of the defence following a witness, the appellant’s partner (a Crown witness called during the defence case), in her cross-examination by the procurator-fiscal depute disclosing on two occasions that the appellant had a previous conviction for culpable homicide. After the witness completed her evidence, a motion was made on behalf of the appellant to desert the diet. The trial sheriff refused the motion. Here it was submitted on behalf of the appellant that whilst disclosure of an accused person’s previous convictions does not necessarily result in a trial being unfair, with the question being one for the trial judge’s discretion (Fraser v HMA 2013 SCCR 674), in the present case the sheriff erred in the exercise of that discretion as the appellant’s previous conviction for culpable homicide was so prejudicial that a fair trial could not be achieved by the jury being directed to ignore the disclosure. It was further submitted that the trial sheriff had given insufficient weight to the extreme prejudice likely to result from the comment which was made twice by the witness. The witness had made a comment that the appellant had “killed someone” and that, in the context of a case involving an allegation of the appellant being in possession of a deadly weapon, was of particular significance and would likely impact negatively on the jury’s assessment of the appellant. The sheriff had also considered the likelihood of a repeat of the witness’ outburst in the event that the trial had to be recommenced and it was submitted the sheriff had fallen into error taking that into consideration. On behalf of the Crown it was submitted that the trial sheriff had been best placed to assess the impact the statements had on the trial process as a whole and the sheriff had taken sufficient regard of all the relevant factors in deciding to allow the trial to continue to a conclusion and could not be criticised in the exercise of his discretion. Here the court held that the sheriff had not erred in his decision to refuse the motion to desert and refused the appeal. The court noted that there was no suggestion that the disclosures came about as a result of any unreasonable or risky questioning by the fiscal depute. The court considered that the trial sheriff adequately addressed the key issue, namely, whether as a result of the reference to the appellant’s previous conviction by the witness a fair trial was possible by carrying out a careful assessment of the competing factors, including the potentially prejudicial nature of reference to such a serious previous conviction. The court was of the view that the sheriff was best placed to make that assessment having regard to the competing factors and to then provide clear directions to the jury on the issue which he did and to which no criticism had been made. The court also took the view that the sheriff was entitled to have regard to the possibility that the witness would simply do the same thing at any future trial if the trial was deserted. The court also noted that the jury had deleted reference to “brandish the knife” in charge 1 in their verdict which indicated that the jury had taken care in their deliberations.