Appellant: Wheatley, QC; Capital Defence, Edinburgh

Respondent: A Stewart, QC; Crown Agent

5 March 2013

Introduction

[1] On 21 February 2012 after trial at Dunfermline Sheriff Court before Sheriff McSherry and a jury the appellant was found guilty of two charges of indecent assault in the following terms:

"(1) On 8 November 2009 at Upper Grove Place, Edinburgh, Midlothian you did assault R N, c/o Lothian and Borders Police and did massage her back, shoulders and leg, place your hand underneath her skirt, touch her private parts on top of her clothing, and did thereafter place your hand underneath her skirt and digitally penetrate her vagina.

(2) On 20 November 2010 at 3 King Street, Inverkeithing, Fife you did assault A S, c/o Fife Constabulary, Dalgety Bay and did massage her shoulders and touch her breast and private parts on top of her clothing."

On 4 April 2012 the appellant was placed on probation for a period of 24 months with a condition that he undertake 300 hours of unpaid work in the community and a requirement to pay compensation of £750 to each of the complainers.

[2] The appellant did not give evidence in the trial. He appealed against his conviction on the ground that there was defective representation by his solicitor in respect that he was not given the opportunity of giving evidence on his own behalf and consequently his defence was not put, or was not properly or adequately put before the jury. On 5 March 2013 we refused the appeal, stating that we would give reasons later. We now give our reasons.

[3] The appellant instructed Victoria Good, solicitor, V Good & Co, Edinburgh, to prepare for and represent him at his trial. In the event she was not available on the day of the trial and the appellant was represented by one of her colleagues, Peter Winning.

The evidence led in the appeal

[4] In the course of the hearing of the appeal we heard evidence from the appellant and each of the solicitors, Victoria Good and Peter Winning. The appellant stated that when he was first prosecuted he consulted Miss Good and instructed her to defend him. He stated that he had discussed with Miss Good the question of his giving evidence and understood that it was agreed that he would give evidence. He would be the main witness for the defence. He had also suggested that his partner, L D, and her son, R C, should be witnesses for the defence. In addition, he had gathered certain material, including material from Facebook relating to each of the complainers, and handed it to Miss Good. After consultation with Miss Good he had understood that it was agreed that not only would he give evidence but also his partner, and her son would give evidence, and the material which he had gathered would be placed before the court.

[5] On the Friday before the Monday on which the trial was due to begin the appellant was made aware that Miss Good would not be available. He was to be represented by Mr Winning whom he met at about 5pm on the Friday. There was no discussion with Mr Winning at that stage about his giving evidence. The appellant said that he went to the trial fully expecting that he would give evidence. He claimed that Miss Good had said that she intended to call him as a witness. She had said that he would probably have to give evidence and that she would like him to give evidence.

[6] The trial proceeded on the Monday and the Tuesday. The appellant said that he had had conversations with Mr Winning in the course of both days in which he made it clear that he wanted to give evidence. When first asked whether there had been discussion about his giving evidence he claimed that there was no discussion and said that when he spoke to Mr Winning at lunchtime or a coffee break, Mr Winning would say "Leave it with me" and would go off to have a cigarette or a cup of coffee. Later in his evidence he stated that Mr Winning said to him that he did not think that the appellant should be giving evidence. When the appellant asked him why he was of that view, Mr Winning said that the appellant would be likely to go off at a tangent in his evidence. The appellant said to Mr Winning that he would not do that and wished to give evidence. Mr Winning said "Leave it with me". At the coffee break on the Tuesday the appellant said that he asked Mr Winning how the case was coming along. Mr Winning said that it could go either way. The appellant stated that he wished to give evidence and again Mr Winning said "Leave it with me". The appellant said that he was never told that he was not going to be giving evidence and expected to give evidence. Mr Winning had simply announced to the court at the close of the Crown case that no evidence was being led for the defence.

[7] The appellant stated that he was born in Birmingham and had an English accent. This was of significance because in their statements the complainers had stated that the man had a local accent. The appellant did not have a local accent and he felt that a reason for him to give evidence was in order to demonstrate that he did not have a local accent.

[8] In her evidence Victoria Good said that this was not a case in which there was a substantive defence such as alibi. In his instructions to her the appellant accepted that each of the complainers had been in his taxi at the material times but denied the allegations and asserted that the complainers were lying. She explained the trial process to him and said that the decision as to whether he should give evidence could not be made prior to the trial. She would never take the decision before the trial as to whether an accused person should give evidence. That decision could only be taken after the Crown case was concluded. She said that the appellant gave no specific instruction and did not say that he intended to give evidence. She accepted that he may have said that he wanted to give evidence. She herself would never tell anyone that they had to give evidence.

[9] There was no discussion about the accent of the appellant in the preparation for the case.

[10] On the Friday night before the Monday on which the trial was due to start she had a joint consultation with the appellant and Mr Winning. She ascertained that the appellant, who had already previously met Mr Winning, was content that Mr Winning should conduct the trial.

[11] Mr Winning was aged 53 and was an experienced solicitor. He explained in his evidence that he had conducted the trial of the appellant. The appellant's position was that the allegations were false. In first instance the defence of the appellant would be presented through cross-examination of the complainers. Mr Winning could not recall if the appellant had said anything on the Friday evening about his giving evidence.

[12] In considering whether an accused person should give evidence one of the factors to weigh up was the success of cross-examination of the complainers. If cross-examination of the complainers had achieved all that it was thought could be achieved, there might not be any purpose in the accused person giving evidence. Mr Winning felt that that was the position here. In his view the evidence of the appellant would not have achieved anything. He accepted that the appellant was keen to give evidence but did not think that he was expecting to give evidence.

[13] In the course of the trial Mr Winning had opportunities to discuss the progress of the case with the appellant. The question of whether the appellant should give evidence was kept under review. Mr Winning could not recall whether there was a short adjournment at the close of the Crown case. It was noted from the timeline provided by the sheriff in his supplementary report that there was an adjournment at 11.30am on the Tuesday. Mr Winning was unable to say whether that adjournment had been on his motion. In any event, according to the timeline, when the court reconvened at 12.05 the Crown closed its case and Mr Winning advised the court that no defence evidence would be led. Mr Winning's evidence was that the decision not to give evidence was made by the appellant following advice. The advice was that he was at a risk of prejudicing his defence by giving evidence. The final decision was made by the appellant himself.

Submissions

The appellant

[14] Mr Wheatley QC, who appeared on behalf of the appellant, submitted that the question was whether the decision not to give evidence was an informed decision by the appellant or whether the solicitor conducting his trial unilaterally overruled his desire to give evidence. Mr Wheatley invited us to accept the evidence of the appellant and to find that the evidence disclosed that the appellant did not have his defence properly placed before the court. He had not given informed consent to the decision not to give evidence. The decision had been made outwith his control. The issue of his previous good conduct and his accent had not been taken into account. Mr Wheatley conceded that if we did not accept the evidence of the appellant, there was no foundation on which to advance the appeal.

Crown

[15] The advocate depute submitted that there was a thread running through the evidence that advice was being given by Miss Good and Mr Winning that the decision whether to give evidence or not would not be taken until the appropriate point towards the end of the Crown case. There was a conflict between the evidence of the solicitors and the appellant and the advocate depute submitted that we should accept the evidence of the solicitors. It was instructive to have regard to the appellant's understanding that other material would be led before the court in the trial. It was clear from the explanations given by Miss Good and Mr Winning that the Facebook material was of no relevance. The evidence of R C was of no relevance. The evidence of L D would only become relevant if certain evidence relating to business cards became an issue in the trial.

Discussion

[16] Both Miss Good and Mr Winning gave their evidence in a straightforward way. We accept the evidence of Miss Good that she did not tell the appellant before the trial began that he would definitely give evidence. We accept her evidence that she would not as a rule do that. It seems to us that such an approach would be in accordance with well recognised practice of advocacy. Before the trial begins the solicitor does not know how the Crown evidence will develop. The solicitor will assess the strength of the Crown evidence as it emerges and will advise the accused accordingly. We accept the evidence of Mr Winning that he followed that approach during the trial. We think that it is of significance that just before the Crown case closed there was an adjournment. We think that it would be very unlikely that a thirty minute adjournment would pass at that point in a trial without the solicitor discussing with the accused person whether the accused should give evidence.

[17] We reject the evidence of the appellant that Miss Good told him before the trial began that he would be giving evidence and we reject his evidence that Mr Winning unilaterally decided that the appellant would not give evidence. We reject his evidence because it is not consistent with the evidence of the two solicitors, which we do accept. Their evidence as to how each of them approached the question as to whether the appellant would give evidence is in accordance with common sense and recognised practice.

[18] In addition, there were internal contradictions within the evidence of the appellant. When first asked whether there had been any discussion between Mr Winning and the appellant about whether he would give evidence, the appellant claimed that Mr Winning had refused to discuss the question of giving evidence and had simply said, "Leave it with me". At later points in his evidence he said that Mr Winning had advised him against giving evidence.

[19] Although the other evidence not introduced, namely, the evidence of L D and R C, and the Facebook material, does not form part of the subject matter of this appeal, we agree with the advocate depute that it is instructive to consider the relative positions of the appellant and Miss Good in relation to these matters because it casts light on the credibility and reliability of each of them.

[20] The material from Facebook comprised pages relating to each of the complainers. The appellant claimed that the complainers must have known each other because the Facebook pages demonstrated that they frequented the same bar in George Street and they must have known each other in order to come up with the same story. There was also a photograph of one of the complainers, A S, with an Asian man in a white shirt.

[21] The appellant explained that his partner, L D would have been able to support his evidence with respect to certain references to coconut and jasmine oil written on a business card which had been in his vehicle. There was a suggestion, more fully explained by Miss Good (see below), that the complainer R N had written these details and taken the card from the taxi. The appellant's position was that these entries comprised a shopping list which he had made at an earlier time. R C, his step-son, would have been able to give evidence that he saw the appellant in bed on the night of the allegation in relation to A S.

[22] The evidence of the appellant before us was that at the beginning of the trial he understood from his discussions with Miss Good that all of this evidence would be placed before the jury.

[23] The evidence of Miss Good in relation to these matters was that she did not think the material in the Facebook pages was relevant and advised the appellant of that. She included L D as a witness to cover the eventuality that the issue of the card was of significance. There was potential evidence that one of the complainers had taken the card and written on it something about oils. L D would be in a position to say that the appellant had on an earlier occasion written what was on the card. It was only if that happened to be raised that there would be any purpose in calling L D. Miss Good explained this to the appellant. When this was put to the appellant he said that he could not recall being told that. Miss Good decided that the evidence of R C was not required because the appellant accepted that each of the complainers had been in his taxi at the relevant times.

[24] In relation to each of these matters we prefer the evidence of Miss Good to that of the appellant. On any view the Facebook material was irrelevant. It is inconceivable that an experienced defence solicitor would encourage the appellant to think that such evidence could be led. It would be likely to be subject to objection by the procurator fiscal. The evidence of Miss Good as to the approach to whether L D would be called makes sense. The evidence of R C was irrelevant given the concession of the appellant, repeated before us, that each of the complainers was in his taxi at the relevant times. Again, it is inconceivable that an experienced solicitor would encourage the appellant to think that in these circumstances the evidence of R C would be led.

[25] In the light of the appellant's concession that each of the complainers was in his taxi at the relevant times the question of his accent was of little relevance.

Decision

[26] For the reasons set out above we are satisfied on the evidence before us that the appellant has failed to demonstrate that his solicitor unilaterally decided not to lead evidence. We accept the evidence of Mr Winning that the decision not to give evidence was made by the appellant following advice. Mr Wheatley conceded that if that was the view to which we came on the evidence the appeal could not proceed further. In our opinion that was a properly made concession and we refuse the appeal.