Steven Green and Alan D’Ambrosio v. Her Majesty’s Advocate [2017] HCJAC 51

Notes of appeal against conviction:- On 17 March 2016, at Edinburgh High Court, the appellants were convicted after trial of a charge of assault including aggravations of abduction, robbery and extortion. On 13 April 2016, following the obtaining of Criminal Justice Social Work Reports, the court sentenced each of the appellants to 7 years imprisonment. The appellants both appealed against their convictions. In relation to the first appellant it was contended that the trial judge in his charge did not accurately narrate the evidence to the jury and that his charge lacked balance. It was submitted that the theme of the charge was such that it was unbalanced and in favour of the Crown. In relation to an aspect of the complainer’s evidence there was a comment by the judge that there was “in a sense a debt owed to the appellant by the complainer” whereas both the complainer in his evidence and the first appellant in his evidence stated that there had been no debt and there was no contrary evidence on that point and in so commenting the trial judge had trespassed into the jury’s function of assessing the evidence. It was further submitted on behalf of the first appellant that there had been numerous errors of fact within the charge and that significantly more reference had been made to the Crown case than to that of the first appellant during the course of the charge which was indicative of a lack of impartiality on the part of the trial judge. Reference was also made to a request by counsel for the first appellant at the conclusion of the charge for the trial judge to make further reference to the defence case in light of the extensive references to the Crown case in the charge. In particular, it was submitted that the trial judge, having highlighted critical aspects of the Crown case, ought to have done the same in relation to the defence case. In relation to the second appellant it was contended that there was insufficient evidence to convict him and that the charge to the jury lacked balance. It was submitted that insufficient circumstantial evidence had been led to convict the second appellant of the charge and the evidence relied upon by the Crown lacked the coherence that was required to sustain a conviction. In relation to the critical issue of whether the Crown could place the second appellant at the locus at the material time, it was submitted that the circumstances relied upon by the Crown were neutral. It was further contended on behalf of the second appellant that the charge lacked impartiality and the submisisons made on behalf of the first appellant were adopted. A number of factual errors in the trial judge’s charge were referred to which negatively impacted upon the defence. Again it was submitted that the amount of time given to the Crown case in the charge was significantly greater than the defence case in that the Crown case was summarised over a number of pages of text whereas the defence case was summarised over 16 lines. It was further submitted that the trial judge had been wrong to refer to the need for second appellant to have lodged a special defence of alibi without raising the issue with counsel for the second appellant outwith the presence of the jury. On behalf of the Crown it was submitted that the agreement in relation to the transfer of the first appellant’s shareholding in the Graf Mortgage Corporation, which was owned by the complainer, was a relevant issue in that the agreement provided that, if the complainer failed to pay the price, the shares would be returned to the first appellant. It was further submitted by the Crown that it was correct to say that at the time of the alleged offence, excessive time had passed without payment and this could properly be described as a debt being owed by the complainer to the first appellant. In relation to the defence complaint of a perception of bias in relation to the judge’s charge it was submitted on behalf of the Crown that no such bias could be detected and counsel for the first appellant had described the charge at the time as “scrupulously fair” albeit further directions had been sought on behalf of the first appellant at that time. In relation to some of the errors within the judge’s charge it was submitted that these were of limited significance. It was further submitted for the Crown that it had been made clear to the jury that whatever inferences the Crown invited the jury to make, it was a matter for the jury, having regard to the evidence, to decide whether to draw such inferences. In relation to the alleged failure by the trial judge to repeat the points made on behalf of the appellants it was submitted that there was no such requirement on the trial judge. In relation to the question of whether there was a sufficiency against the second appellant it was submitted that there were a number of circumstances that, when taken together, were capable of supporting the inference, beyond reasonable doubt, that the crime had been committed by the second appellant. In relation to the reference to the failure by the second appellant to lodge a special defence of alibi it was noted that as soon as it became clear that an issue had arisen the jury had been asked to retire. Here the court refused the appeals. In relation to the issue of perceived bias the court made reference to Snowden v HMA 2014 SCCR 663 where it was stated that if a complaint of imbalance is to be regarded as justified, it has to be said that the trial judge, when referring to the evidence, had failed fairly to put the defence case to the jury. In the present case the court considered that, after looking at the whole tenor of the charge, the judge had not said, or failed to say, anything which could have resulted in misleading the jury or diverting them from their task. Here the court, having assessed what the trial judge said in his charge, considered that there was no partiality present in the charge nor was there any error of fact contained within the charge which was of sufficient importance to impact upon the fairness of it. In relation to the case against the second appellant the court considered the circumstantial evidence against him as a whole and, whilst the evidence could be open to more than one interpretation, it was a matter for the jury to decide whether the inferences the Crown invited the jury to draw could be made. In relation to the reference by the trial judge to the absence of an alibi on behalf of the second appellant it was considered that no prejudice arose.