Stephen Rodger v. Her Majesty’s Advocate [2017] HCJAC 65

Reference from the Scottish Criminal Cases Review Commission – Note of appeal against conviction:- On 12 September 2013, at Glasgow Sheriff Court, the appellant was convicted after trial, along with his co- accused, Duncan Stanulis, of:- (1) a charge of behaving in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm by following EM, LG and SN within a motor vehicle and with his face masked presenting a handgun or imitation handgun at them contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010; and (2) a contravention of section 16A of the Firearms Act 1968, namely, having in his possession a firearm or imitation firearm with intent to cause a person, namely LG, SN and EM ... to believe that unlawful violence would be used against them. The appellant and his co-accused were both sentenced to 3 years imprisonment in relation to charge 1 and 5 years in relation to charge 2 to run concurrently. The appellant and the co-accused appealed against their convictions on various grounds only one of which had leave to appeal granted, namely, whether leaving both charges before the jury would result in double jeopardy, however, by an opinion dated 9 December 2014 the High Court refused the appeal on the basis that the species facti of the charges differed. In April 2015, the appellant and his co-accused asked the Scottish Criminal Case Review Commission to refer their convictions back to the High Court which the SCCRC refused to do on 26 February 2016. On 29 July 2016, the appellant asked the Commission to review the matter, but this was also refused. In September 2016, the appellant made a further application to the Commission in relation to non-disclosure issues and defective representation. The focus of the application related to the non-disclosure by the Crown of CCTV images and statements of the complainers until the first day of the trial and what was contended to be a failure on the part of the appellant’s representatives to precognose the witnesses and to make use of these statements during the complainers’ evidence. The Commission did not consider that the issues raised were a basis for a stateable ground of review. On 13 October 2016, the applicant contacted the Commission as he had obtained his co-accused’s Blackberry mobile from the police which contained a photograph of the rear of the complainers’ car, taken at the locus at the material time which supported his position that the co- accused had held up a phone and not a firearm at the relevant time. Around the same time the co-accused also applied to the Commission in relation to the same issue. The Commission made inquiry in relation to the image on the phone which confirmed the image had been stored on 29 April 2013, the date of the incident, and whilst digital enhancement was inconclusive the vehicle seen was consistent with the complainers’ vehicle. The Commission considered that the failure by the solicitors and instructed solicitor advocate who conducted the trial to fail to examine the phone in advance of the trial was an obvious line of inquiry which was integral to the line of defence that the appellant was running. The Commission made a reference to the High Court in relation to a defective representation appeal on the basis of the failure to properly investigate the phone and any material on it for use at the trial. Here evidence was heard from the solicitor, the solicitor advocate instructed and the appellant in relation to the appeal. It was the appellant’s position that the fact that the co-accused had pointed the phone at the complainers’ car should have prompted an examination of the phone which was in the possession of the police. The court refused the appeal. The court considered that there were a number of matters which the defence were correct to be wary of regarding their preparations. For example, there were dangers in alerting the police that there may be something significant on the co-accused’s phone in light of the co-accused’s position that he was not in the car which was likely to be undermined if the image established the presence of the co-accused in the car. The court considered that that particular line of inquiry could only be carried out on the express instructions of the appellant. At the hearing the appellant stated that he had told his representatives that the image existed, however, both the solicitor and solicitor advocate instructed were clear that they had not been advised of that. The court observed that there was no precognition of the appellant to refer to and no notes of any pre-trial meetings between the representatives and the appellant. In the absence of any supporting documentation or correspondence the court did not accept the evidence of the appellant that he told his representatives that the image existed or that they should have the phone examined. The court also found that, notwithstanding what the appellant said at the hearing, he would not have done anything to undermine his co-accused’s position at trial and to refer to the image would have undermined his co-accused’s position. It was noted that the appellant’s express instructions were not to incriminate his co-accused and no notice had been lodged in advance of trial and there was no reference to the co-accused during the cross-examination of the complainers by the appellant’s solicitor advocate. It was further noted that the appellant chose not to give evidence on his own behalf, one of the reasons being that if he had elected to give evidence then it was likely to have impacted negatively on his co-accused’s position. The solicitor advocate instructed indicated to the court that his advice to the appellant after the ‘no case to answer’ submission had been rejected was for the appellant to give evidence on his own behalf as at that stage there was no evidence before the jury that the item held was a phone rather than a gun, and had the appellant wished to put forward that positive defence then it was for him to do so. The court took the view that in light of that failure by the appellant, against the advice given by his solicitor advocate, it meant that the image could not bolster the appellant’s position when he had not put forward one. In all the circumstances the court considered that the test as set out in Grant v. HMA 2006 JC 205 for a successful defective representation appeal had not been made out. In particular, the appeal could not be successful if it was based on strategic and tactical decisions reasonably and responsibly taken by trial counsel. The court went on to state that, on the assumption that the image was that of the complainers’ car taken on the co-accused’s phone at the relevant time, the court did not consider that its existence undermined the credibility or reliability of the complainers’ evidence sufficiently to allow the court to say that a miscarriage of justice had occurred.