Shamshad Adams v. His Majesty’s Advocate [2025] HCJAC 30

Note of appeal against conviction:- On 30 September 2024, following a trial on indictment at Forfar Sheriff Court, the jury unanimously convicted the appellant of forming a fraudulent scheme to obtain sole ownership of a property. The appellant appealed against his conviction it being contended that there had been a failure to disclose by the Crown during the trial resulting in unfairness to the appellant and that the trial sheriff had erred in refusing to desert the trial following the failure to disclose. In addition, it was contended that the trial sheriff had erred in his charge to the jury by failing to correct an erroneous reference to a third party in the Crown speech. The circumstances were that during the course of the trial, the Crown received from the police what was referred to as the “warranty deed” for the sale of the property on 25 or 26 September 2024. The document bore the appellant’s signature, made on 23 October 2019 and appeared to show the transfer of the property to a person named Micky L Halburnt. The document had been annotated with the words “sold for 265,000 dollars on 23/10/19.” During the course of the cross-examination of the appellant by the procurator fiscal reference was made to the sale date of the property of 23 October 2019 and the proceeds of sale which information was contained within the document but had not been disclosed. No objection had been taken to the questions by the defence during cross-examination. The court adjourned for lunch while the appellant was still subject to cross-examination and following the break the defence made a motion to desert the trial arguing that the point raised was prejudicial to the appellant that the cross-examination had already undermined the appellant’s credibility with the appellant unable to make her position clear in examination-in-chief nor given an opportunity in advance of the trial to consider her position. The sheriff refused the motion as the defence could redress any prejudice during the course of re-examination. The appellant was subsequently convicted. The appellant appealed and leave to appeal was granted in relation to 3 grounds, namely, non- disclosure by the Crown of the document, the sheriff’s refusal to desert the trial and an alleged misdirection by the trial sheriff where the sheriff directed that the offence on the indictment could have been committed either by the appellant forging the signature of Mr Laing and sending the documents to the USA, or by a third party doing those things on her behalf. It was submitted that it was necessary for the jury to be directedthat any involvement of a third party required to be on the instruction of the appellant and the manner in which the jury were directed gave the jury an erroneous route to conviction which was not available to them. Here the court refused the appeal. In relation to the disclosure ground the court considered that there was a failure by the Crown to disclose, the question being, under reference to McInnes v. H.M.A. 2010 SC (UKSC) 28, whether as a consequence of the failure a miscarriage of justice had occurred in that there was a real possibility that the jury would have arrived at a different verdict. Having applied the test in light of the evidence led at trial, the court considered that there was not a real possibility that the jury would have arrived at a different verdict. Further, the court, in relation to the question of whether the sheriff ought to have deserted the trial, under reference to HMA v RV 2017 SCCR 7, concluded that the sheriff took the appropriate course to refuse the motion to desert and to allow a consultation with the appellant before re-examination and there was no irreparable unfairness arising. The court considered that the sheriff’s directions in relation to the third party involvement were adequate with it being made clear to the jury that the Crown required to prove that the appellant made the false pretence to Sumter County Court. The court noted that the sheriff gave the standard directions in relation to the crime of fraud and those were adequate in the circumstances.