Mark Wishart v. Her Majesty’s Advocate [2022] HCJAC 30

Note of appeal against conviction:- On 12 November 2021, following a trial at Dundee High Court, the appellant was convicted of a charge of attempted murder by striking two complainers with a motor vehicle he was driving. The appellant was subsequently sentenced to 6 years imprisonment. The issue at the trial was whether the Crown could prove that the appellant was the driver of the motor vehicle involved in the incident. Following the Crown and defence speeches, together with the trial judge’s charge, the jury asked the following question:- "Can we have a pic or close up of the accused for us to see in a clearway?”. The trial judge refused that request. The appellant appealed against his conviction, it being contended that the trial judge erred in refusing the jury’s request, resulting in a miscarriage of justice. The basis upon which the trial judge refused the request was that “…It is not possible once all the evidence has been led to produce further evidence…” Counsel for the Crown and the defence had agreed with that approach. Here it was submitted on behalf of the appellant that the trial judge erred in refusing the request. It was submitted that  it was not a question of the jury seeking access to additional evidence as the jury would have been able if the appellant was in court to view him closely and the speech by defence counsel had emphasised the difference between the descriptions given by the eyewitnesses and the appearance of the accused and the refusal by the trial judge impeded the defence presentation of their case and resulted in a miscarriage of justice. Here the court refused the appeal. Whilst the court did not consider the trial judge was correct to view the request as seeking additional evidence the court took the view that the 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 court considered that the trial judge erred in treating the issue as one of law rather than an exercise of his discretion, however, only to that extent. The court went on to state that if the trial judge had treated it as a matter of discretion it is unlikely that such a request would have been granted. It was noted that both Crown and defence counsel agreed with the approach of the judge at the time the question was asked and it would only be in quite exceptional circumstances that the views of both parties would be ignored where their views were based on reasonable grounds. The acquiescence of counsel is a relevant issue and if the interests of the appellant were best served by a different approach then defence counsel might have said. The court considered that in the present case there was no unfairness in what had occurred and the trial judge had adequately directed the jury in relation to the dangers of identification. The court went on to conclude that even if the court considered that there was unfairness arising from the judge’s error, the circumstances of the case meant that there was no miscarriage of justice.