APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kingarth Lord Eassie Lord Bonomy	[2010] HCJAC 5 Appeal No: XC472/04 OPINION OF THE COURT delivered by LORD KINGARTH in APPEAL AGAINST CONVICTION by JOSEPH McEWAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Paterson, Solicitor Advocate; Paterson Bell, Edinburgh

Respondent: Allan Q.C., Crown Agent

20 January 2010

[1] On 27 May 2004 at Ayr Sheriff Court the appellant was found guilty of 6 charges on indictment, as follows:

"(002) on 27 May 2002 at Highfield Farm, St. Quivox, Ayr, you JOSEPH MCEWAN and STEVEN WILLIAM SNEDDON did, while acting along with others meantime to the prosecutor unknown, assault Alan Dougan, Highfield Farm, St. Quivox, Ayr and did repeatedly strike him on the head and body with a hammer and a baseball bat or similar object to his severe injury;

(003) on 27 May 2002 at Highfield Farm, St. Quivox, Ayr you JOSEPH McEWAN and STEVEN WILLIAM SNEDDON did, while acting along with others meantime to the prosecutor unknown assault Mark Robb, Highfield Farm, St Quivox, Ayr and did strike him on the arm with a knife or similar object to his severe injury and permanent disfigurement;

(004) on 27 May 2002 at Highfield Farm, St. Quivox, Ayr, you JOSEPH MCEWAN and STEVEN WILLIAM SNEDDON did, while acting along with others meantime to the prosecutor unknown, assault Alastair McDonald, Highfield Farm, St. Quivox, Ayr and did punch him to the head and repeatedly strike him on the arm, body and legs with a hammer to his injury;

(005) on 27 May 2002 at Highfield Farm, St. Quivox, Ayr, you JOSEH MCEWAN and STEVEN WILLIAM SNEDDON did, while acting along with others meantime to the prosecutor unknown, assault John Leray, Highfield Farm, St. Quivox, Ayr and did strike him on the arm with a baseball bat or similar object to his injury;

(006) on 27 May 2002 at Highfield Farm, St Quivox, Ayr, you JOSEPH MCEWAN and STEVEN WILLIAM SNEDDON did, while acting along with others meantime to the prosecutor unknown, assault Andrew Richardson, Highfield Farm, St. Quivox, Ayr and did repeatedly punch him about the head and body, pull him in a window by his legs and struggle with him whereby he fell to the ground to his injury;

(007) on 27 May 2002 at Highfield Farm, St. Quivox, Ayr, you JOSEPH MCEWAN and STEVEN WILLIAM SNEDDON did, while acting along with others meantime to the prosecutor unknown, assault George Schriekel, Highfield Farm, St. Quivox, Ayr and did repeatedly strike him on the legs with a hammer and repeatedly kick him on the head and body to his injury."

On 17 June 2004 he was sentenced to 3 years imprisonment in cumulo in respect of the charges.

[2] He has appealed against conviction. Leave to appeal against sentence has been refused.

The Circumstances of the Offences

[3] As reported by the trial sheriff the circumstances disclosed in the evidence were as follows:

"In the course of the evidence it emerged that the appellant, or at least members of his family, had leased the subjects known as Highfield Farm, St. Quivox, Ayr to a charitable institution known as Lydia Trust Associates. Date of entry under the lease was 1 September 2001. Lydia Trust used the subjects as a residential rehabilitation centre for recovering drug addicts.

After the lease had been granted the appellant was motivated to get the tenants to vacate the subjects and to terminate the lease so that the subjects could be leased to the mother of the appellant's co-accused, Sandra Sneddon, who intended to use the subjects as a women's refuge.

On 27 May 2002 the appellant set up a meeting at the subjects with representatives of the Lydia Trust. The pretext was to discuss some concerns which he had regarding the subjects. The representatives of the Trust met with the appellant and Sandra Sneddon. In the course of the meeting the appellant became very aggressive. The meeting lasted a short time and concluded with the appellant making a phone call to his co-accused Steven William Sneddon who was part of a group which was located a short distance from the subjects. A few minutes later the group including Sneddon arrives at the subjects. Members of that group were wielding weapons including a knife, a hammer and a baseball bat. The appellant saw the group arrive and saw that members were wielding weapons as aforesaid. The appellant, his co-accused and other members of the group entered the premises through an open window. The assaults libelled in charges 2 to 7 of the indictment were then carried out. All of the complainers had their injuries treated at hospital."

[4] It is plain from the speech made to the jury by the Procurator Fiscal Depute that the Crown case was that the appellant was guilty as the person who organised the attacks. It is also clear (and was accepted before us) that a material Crown witness was Mrs Jean McGhee, who was the person responsible for running the rehabilitation centre on behalf of Lydia Trust Associates. A transcript of her evidence has been made available to this court. The thrust of her evidence in chief was that prior to the meeting on 27 May 2002 certain problems or claimed problems had arisen in relation to the continued occupation of the premises by Lydia Trust. The meeting was set up against a background of the appellant having sent a notice seeking to bring the occupation of Lydia Trust Associates to a premature end within 28 days. The appellant became very aggressive. Thereafter he made a telephone call to his co-accused saying "You can come down now...". At that point the co-accused and numbers of others arrived. The appellant himself then became involved along with others in kicking the door of the farmhouse. It was the impression of the witness that he was in charge. He and others were seen to go in through the window into the farmhouse where the assaults on the residents who were the complainers took place. She herself did not see what happened inside the premises. It appears that there was evidence from two or perhaps three of those inside which implicated the appellant directly as being involved in the attacks inside, at least to the extent of controlling them.

The Appellant's Defence

[5] It is plain that the appellant's basic position in defence (which was pursued in cross-examination on his behalf with all witnesses and taken from him in evidence) was that, although he was present at the meeting, thereafter he was not in any sense involved in the attacks, his sole involvement having been to try to stop what occurred. The evidence of any witnesses implicating him could not be accepted as credible and reliable.

The Ground of Appeal

[6] Although leave was granted to argue three grounds of appeal only the third of these grounds was insisted upon. In that ground it is claimed at some length that there was a miscarriage of justice by reason of the failure of the appellant's then representatives to follow his instructions in relation, putting it broadly at this stage, to a proposed attack on the veracity of Mrs McGhee by reference to what was said to be a forged lease. We put it broadly at this stage because, in the event, the position ultimately adopted on the appellant's behalf was considerably narrower than that described in the written ground of appeal.

Evidence and Findings Relating to the Appellant's Representation at the Trial

[7] In circumstances where the factual basis for the contentions made on behalf of the appellant in his written ground of appeal was not accepted by his trial counsel or agents, evidence was led before this court from the appellant himself, from his trial counsel Mr Alonzi and from Mrs Christine West, the representative of his solicitors who was present throughout the trial.

[8] Having considered that evidence we are entirely satisfied that trial counsel's evidence as to what the appellant's instructions were, what his own position was in response and as to whether the appellant accepted the advice which he was given, should be accepted as being accurate. It was, it appeared to us, not only based on an apparently clear recall of all significant events, but his evidence was given fairly and carefully and with a disarming and commendable frankness. In all material respects it was supported by the evidence of Mrs West, who spoke to the general accuracy, at least, of a number of file notes prepared at the time. By contrast, the appellant himself accepted that his recall of what had happened at particular points and at various meetings was not particularly good, and we were left overall with the clear impression that he had some difficulty in sorting out in his mind what he now thinks could and should have been done from what actually happened at the time of the trial. In the event, it was no surprise that Mr Paterson on his behalf did not seek seriously to challenge the veracity or reliability of the evidence given by Mr Alonzi, and in his careful submission to the court proceeded essentially on the basis that counsel's evidence fell at least generally to be accepted.

[9] The material parts of counsel's evidence (supported where necessary by reference to the transcripts) can be summarised as follows. Although there was an earlier trial which was deserted, counsel was instructed only for the trial at the end of which the appellant was convicted, his first involvement being on or about 13 May 2004 some days before the trial commenced. He understood that it was the appellant's position that the property which was leased to Lydia Trust Associates in September 2001 was partly owned by himself and his wife (the farmhouse) and in part by his daughter (the rotunda). There were accordingly two documents of lease. These were lodged as productions and were headed "Lease House A" and "Lease House B". For purposes connected with the obtaining of Council funding, however, Lydia Trust Associates wished to have their occupation regulated by one overall lease, and in that connection approaches were made to the appellant by a person called Mark Rogers and by Mrs McGhee. The appellant had refused these approaches, as being requests he could not agree to comply with, standing the titles. Some time after the events which were the subject of the charges it came to the appellant's attention that a document purporting to be one lease in respect of the premises and dated December 2001 had been presented to the local authority in connection with funding. It purported to have on it the signatures of himself and his wife. He had not signed it.

[10] It was understood by counsel that the position which the appellant wished to put forward in the trial was that Mrs McGhee was a dishonest witness, having, on the face of it, been at least party to the use, to obtain funding, of a document with an apparently forged signature. Counsel was aware that a report had been obtained from a handwriting expert which concluded that there was a high probability that the relevant signature was not the genuine signature of the appellant. The expert was on a list of defence witnesses and her report had been lodged. Counsel, however, did not understand that it was being suggested that this matter provided any direct motive to Mrs McGhee for implicating him in the events of 27 May 2002. There was certainly no suggestion made to him that in relation to this matter Mrs McGhee would "benefit significantly financially from the appellant being put in jail", as is suggested in the written ground of appeal. At no stage was it raised with him that this matter provided Mrs McGhee with a motive for directing the other Crown witnesses to lie about the appellant (again as is suggested in the written ground of appeal).

[11] Counsel formed a clear and firm view from the start, and consistently gave advice to this effect, that the honesty of Mrs McGhee in relation to the so called forged lease should not be the subject of challenge on the appellant's behalf. In short it was his position from an early stage that her general character should not be attacked in the way suggested. In the first place it was his clear view that this would be likely to lead to the appellant's record of previous convictions being disclosed to the jury. This record included convictions for assault, one at sheriff and jury level, and a conviction for uttering. Counsel had a real concern that this would be likely to reflect badly on the appellant in the eyes of the jury. In addition counsel understood that certain questions relating to the so called forged document had been raised in the cross-examination of Mrs McGhee in the earlier aborted trial on behalf of a co-accused (who had no record), and his understanding was that the documents would be used again in that way on behalf of the co-accused. Counsel also had some concerns as to the account of matters which he had been given by the appellant, since the Crown had lodged a document purporting to be one overall lease apparently signed by the appellant and dated July 2001. In addition, as stressed by Mrs West, it could not be said who, if anyone, had forged the signature in question. Furthermore, the matter, as counsel saw it, fell to be regarded as relating to extraneous events. It was not intrinsic to the defence. The concerns relating to the continued occupation of Lydia Trust Associates on 27 May 2002 were unrelated to the so called forged lease of which the appellant was entirely unaware, and it appeared that the Council was the victim of any fraud and not the appellant, who continued to receive rent in respect of the whole property.

[12] Counsel's position on this matter was conveyed to the appellant and accepted by him from the outset, albeit reluctantly. As a consequence, no notice of intention to attack the character of the witness was lodged, although one had been provisionally drafted. The advice was repeated from time to time when it was raised, as it was from time to time, by the appellant. It continued to be accepted by him, albeit reluctantly. This happened on 17 May 2004, and in the course of another meeting on 19 May 2004. During the trial the advice was repeated and accepted on 20 May 2004 even when it became apparent that the co-accused did not intend to deploy the relevant material after all. The recollection of counsel and Mrs West was that the appellant was an anxious client who constantly sought to discuss all aspects of the trial.

[13] On 21 May 2004 Mrs McGhee was called as a Crown witness. Before lunch counsel began his cross-examination of her. The thrust of his cross-examination related to the apparent friction between parties as to the occupation of Lydia Trust Associates prior to 27 May 2002. Before the court resumed after the lunch adjournment a meeting was held between counsel, Mrs West and the appellant. Counsel described this meeting as somewhat fraught. In it the appellant was adamant that the character of the witness should be attacked. He was unhappy that the impression she was creating was of an honest witness. Although counsel's own advice never shifted from what it had always been, he did accept that at this meeting he accepted (albeit with some resignation) instructions to make a full frontal attack on the witness's character by reference to the leases. The instructions which he accepted were, he agreed, clear and unequivocal. The relevant file note records inter alia

"Meeting Mr McEwan with Mr Alonzie (sic), Advocate. Mr McEwan was not very happy at the way the evidence in chief at the beginning of the cross-examination of the complainer, Mrs Jean McGee (sic) was going. He was unhappy that her evidence was coming out and making him look in a bad picture where as (sic) he is adamant that she is lying and she is the (sic) do good Christian that she makes out to be. Advised Mr McEwan that if we attack her character then the chances that Margaret Paton the fiscal depute would attack his character when she cross-examines him. Noting that Mr McEwan is very unhappy and wishes now after full discussion to bring the leases into the cross-examination. Lorenzo advised that this would possibly not be a good idea, however, he would act on his instructions and do as he wished."

[14] Thereafter, as recalled by counsel and recorded in the transcript, the question of the leases was raised with the witness towards the end of cross examination. It was put to the witness that originally there were two leases in respect of House A and House B, and not one overall lease, as the witness had maintained. The so-called forged lease was then put to the witness, and after a series of questions there followed this exchange:

"So can I suggest to you that what happened here was that originally the houses were let separately as we see under these two separate leases, House A and House B. And it was because of suggestions coming from Mark Rogers that you then approached Joe and asked for the leases to be put together? - It wouldn't have made any difference.

It's quite the opposite way round from what you suggest? - It wouldn't have made any difference that way the leases were ... But the fact was we had a lease on the premises.

Well you see is it not the case that you and, both yourself and, you and Mark Rogers asked Joe McEwan to replace the two separate leases with a single lease covering the two properties? And that when he said that he couldn't do that, off your own back, you just made this one up? - What?

Number 2A. - Now what ...

SHERIFF MONTGOMERY: Now just a moment please. Which one, Mr Alonsi?

MR ALONSI:   Sorry, my Lord. 2A, the one that combines them both?

THE WITNESS:   No.

MR ALONSI:   That's not what you did?

SHERIFF MONTGOMERY:   What has been suggested to you, Mrs McGhee, is that document in front of you, Defence production 2A, that you made that up. Do you understand the question?

THE WITNESS:   Right, I understand the question. But this has (inaudible) in it.

SHERIFF MONTGOMERY: Will you answer Mr Alonsi please?

THE WITNESS:   Okay.

Cross-examination by MR ALONSI (continued):

What is the answer? - No.

MRS PATON:   My Lord, I think at this stage I should indicate that I consider that to be attacking the witness' credibility, simple for the purposes of the proceedings. Sorry, an attack on her character.

SHERIFF MONTGOMERY:   Her character?

MRS PATON: Her character, yes.

SHERIFF MONTGOMERY:   That is why I repeated the question.

Cross-examination by MR ALONSI (continued):

What I'm doing is that I'm suggesting to you ...

SHERIFF MONTGOMERY:   Hold on, Mr Alonsi ... Yes, please continue.

Cross-examination by MR ALONSI (continued):

All I'm doing, Mrs McGhee, is suggesting to you that when you said that these were originally, this was originally one lease split into two that it's quite the opposite that happened. That originally it was two leases and thereafter it suited you to have it as one. Is that not what, what the case was? - But it wouldn't have made any difference to us at all. It would have suited us either way, it didn't matter."

[15] Counsel readily accepted that this questioning did not fully comply with his then instructions as he understood them. Although he had, in effect, put to the witness that the relevant document was not genuine, and had been made up, and until that point was following the appellant's wishes, given the Procurator Fiscal Depute's intervention which he took to be a marker (well understood, he thought, by the sheriff too) that if the line was pursued the Crown would seek to reveal the appellant's previous record, he decided, having regard to the interests of the appellant, to stop. He accepted nevertheless that if he had complied fully with the appellant's wishes, as he understood them, he would have proceeded to take more directly from her the question of apparent forgery and would have made a direct attack on her honesty as an individual. In due course he would have led evidence from the handwriting expert (as he did not) and would have taken from the appellant when he gave evidence inter alia that the relevant signature was not his. Nevertheless at the time he thought it was right for him to take the matter only as far as he did; indeed he was unhappy that he had gone too far, and that there would now be a motion to disclose the appellant's record. His clear recollection is of feeling unhappy that he had, as he put it, allowed himself to be pushed around by his client in the lunchtime meeting to the point when he was not doing his job properly.

[16] His recollection, however, was entirely clear that the appellant, when he met with him at the end of the cross-examination of Mrs McGhee, was happy with the way matters had progressed and with what had been done. This reaction by the appellant came, counsel recalls, somewhat to his surprise. Nevertheless the appellant expressed no dissatisfaction, although there remained a concern as to whether his previous convictions would be revealed. In the event, on the following court day the Procurator Fiscal Depute advised counsel that on reflection she would not be seeking to bring out the appellant's record because counsel had not proceeded further with the line of questioning. In his written report to the court (the accuracy which we have no reason to doubt) counsel advises that the appellant was content on being told this, and that thereafter evidence was led from the appellant himself and also from his former co-accused Sandra Sneddon. Throughout that time the appellant gave no indication that he wished to lead any evidence regarding the allegedly forged lease or that he was in any way unhappy with the conduct of his defence. Counsel met with the appellant two times after his conviction and the matter was not at any stage raised by him then.

[17] For the avoidance of doubt, in accepting the above account it follows that, we do not accept, for the reasons above given, the evidence of the appellant himself where it differed in certain material respects. We do not, for example, accept him insofar as his evidence was that he never at any time accepted the advice of his counsel on the matter in question. We do not accept his evidence that he conveyed clearly to his counsel that the question of the forged lease could be used to infer a direct motive for Mrs McGhee to implicate the appellant in relation to the events of May 2002, still less that he conveyed that this provided a direct motive for her to engage in a "conspiracy" with other witnesses or to "orchestrate" those other witnesses to tell lies about his actions on the day in question. There is no hint of this in the contemporary written records taken. Equally, and importantly, we do not accept his evidence that he expressed some concern on 21 May 2004 that his counsel's cross examination had not gone far enough. The written record of the attendance note of that occasion reads "Noting that Mr McEwan was quite happy with Mr Alonsi's cross-examination in relation to the leases and the bank statements. He was happy that the Advocate brought this out in his cross-examination..."

The Submission for the Appellant

[18] Against that background the argument presented on behalf of the appellant was simple and straightforward. It was that counsel had, in material respects, failed to follow the instructions of the appellant. This could be said to have deprived the appellant of the right to a fair trial, and to have led to a miscarriage of justice. Reference was made to Winter v HMA 2002 SCCR 720 and DS v HMA 2008 SCCR 929. Mrs McGhee was a material witness for the Crown. The failure to follow instructions meant that she was not cross-examined in respect of a matter which materially affected her credibility; nor was the matter taken further in evidence on the appellant's behalf.

Discussion

[19] We have come to the view that this contention must be rejected.

[20] Looking to the whole circumstances of the trial we have little doubt that although apparent instructions to pursue the line in question to a particular effect were reluctantly accepted by counsel on 20 May 2004, the plain inference is that, in light of what transpired that afternoon when counsel sought at least initially to fulfil those instructions, the instructions were thereafter withdrawn. As we have found, when counsel met with the appellant on 21 May 2004, and despite his own trepidation as to the potential reaction, the appellant expressed his happiness with the extent to which the cross-examination had been pursued. The appellant must have seen and heard the reaction of the Procurator Fiscal Depute, and of the Sheriff, at the point when his counsel chose, as it were, to retreat. Not only is it clear that he expressed thereafter his apparent acceptance of what had happened, he himself gave no evidence to suggest that he instructed, as he could have done, that counsel should nevertheless proceed as requested (which in our view he could have done, counsel having at least laid what could be described as a foundation - albeit somewhat thin - for an attack on the validity of the alleged forged lease). There is no hint at any stage thereafter during the course of the trial, including at the point where he himself gave evidence, that he returned to any kind of insistence that the matter be pursued. This is not without significance given the appellant's previously recorded anxiety as a client. Instead it is plain from a study of his own evidence (a transcript of which is available to this court) that despite being warned in several places not to be discursive, and not to make speeches but instead to answer the questions which were being put, there is no hint of a wish to raise again the matter of the forged lease. For these reasons we consider that it cannot be suggested that he did not receive a fair trial.

[21] That is enough for determination of the appeal. We wish, however, to make two further observations.

[22] We have decided this case on the basis that instructions were given and accepted, but were in effect thereafter withdrawn. So doing we recognise that where instructions which are accepted are then not pursued, this may give rise to particular issues in relation to the overall fairness of a trial. Nothing we say, however, should be taken to imply that the so called instructions which counsel accepted he had been given were instructions which he was bound to accept. It is, we think, now clear following a series of decisions of this court, following Anderson v HMA 1996 JC 29, (amongst which we mention McBrearty v HMA 2004 JC 122, Grant v HMA 2006 SCCR 365, Burzala v HMA 2008, SLT 61, DS v HMA and most recently Duncan Edwards v HMA 25 September 2009, [2009] HCJAC75) that an appeal based on defective representation can succeed inter alia on the basis that counsel failed to comply with an appellant's instructions as to the essential nature of his defence. By contrast the decision as to how that defence is to be presented is a matter for counsel's discretion. He is not subject to orders from the client in this respect. In that area an appeal will succeed only if it can be shown that counsel took decisions which no reasonable counsel could have taken. It has been said, rightly, that it may not always be easy to draw the dividing line between these two areas, but having carefully considered the claims made in the present case the relevant "instructions" plainly related, in our view, to the area of counsel's discretion. They related essentially to an extrinsic matter which could be used to attack the general character of a Crown witness. By contrast the essential defence of the appellant, in accordance with what is properly understood as his instructions (see the discussion of this in Duncan Edwards v HMA) was plainly presented on the appellant's behalf, both in cross-examination of Crown witnesses and by the leading of the appellant in evidence. The circumstances of this case can, we think, readily be distinguished from cases such as Winter v HMA and JB v HMA 2009 SCCR 301. And there has been no suggestion at any time in this case that counsel acted in a way that no reasonably competent counsel could have done.

[23] Secondly it appears to us that the full attack which the appellant wished to mount on the general credibility of Mrs McGhee by reference to the alleged forged lease could potentially have been regarded as an attempt to introduce evidence inadmissible at common law, being evidence relating to a collateral matter of a kind which could have had only an indirect bearing on the issues in question and which could have taken up a considerable amount of court time and risked distracting the jury (cf eg. Moir v HM Advocate 2007 JC 131, also reported as M (M) v HMA (No. 2) 2007 SCCR 159 and Ronald v HMA (No. 1) 2007 SCCR 451). It is thus by no means certain that if counsel had pursued the line further he would have been permitted to do so by the court. Since, however, this matter was not specifically raised in submission before us we take it no further.

[24] In all the circumstances, for the reasons already given, this appeal must be refused.