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Trial judge not required to summarise evidence for jury: appeal court

24 October 2014

It is not the law that a trial judge requires to "summarise" the evidence when directing the jury in certain circumstances. Nor is it the case that any special direction needs to be given as to how to treat the evidence of a young child.

The criminal appeal court gave these rulings yesterday in refusing the appeal against conviction, on a reference by the Scottish Criminal Cases Review Commission, by Faisal Younis, for the cuplable homicide of his nine-month-old daughter (A) in September 2005. It was alleged that he had shaken her or otherwise inflicted trauma on her head and neck.

At trial the medical witnesses disagreed over whether A's injuries could have been caused by shaking, but the Crown maintained that the medical evidence overwhelmingly pointed in the direction of A having suffered trauma, delivered in the form of an assault. There was also evidence from A's brother W, aged four at the time of A's death and six at trial, that the accused had hit A hard on the face and she had stopped crying. There was evidence for the defence that A's death could have been caused by choking on her bottle or vomit.

It was argued for the accused that having regard to the length of time the trial had taken, betwen November 2007 and January 2008, as part of the overarching duty of the court to ensure a fair trial, it was for the judge to provide a balanced summary of the Crown and defence positions, taken not only from the speeches but from lines adopted in cross-examination. While the judge had created "an appropriate structure", he ought to have expanded upon it by rehearsing the relevant evidence.

Lord Justice Clerk Carloway, delivering the opinion of the court in which he sat with Lord Bracadale and Lord Drummond Young, however said that it was a "significant defect" in the ground of appeal and the SCCRC reference that it was contended that, as a matter of law, a judge required to “summarise” evidence in certain circumstances. "This is simply not the case", he stated. "The court is unaware of ever having said that this is a requirement and it wishes to emphasise that it is not."

It was primarily for the parties to address the jury on what parts of the evidence were, or were not, significant and to make such submissions on credibility and reliability as they thought appropriate. "The trial judge may react to any submissions made... [but] there are obvious problems created if the judge begins to address the evidence in a manner entirely inconsistent with that adopted by parties", he added.

The case had not been one of such complexity as to require any speciall treatment, and both closing speeches had been quite short. The judge had outlined a simple and straightforward path for the jury, and his charge met the test of being "such as to enable the informed observer, who has heard the proceedings at trial, to understand the reasons for the verdict".

As regards W's evidence, "The modern approach is to regard the evidence of children in exactly the same way as that of other persons." Judges were no longer allowed to ask questions designed to ascertain a child's understanding of truth and falsehood, and "The basis as to why a cum nota warning should therefore have been given in relation to the evidence of W remains a mystery." His age would have been well known to the jurors, who would have been familiar with accounts of events given by children and the truthfulness and reliability of children generally. "In such circumstances it is not possible to conclude that any miscarriage of justice has occurred as a result of any failure on the part of the judge to mention any of these matters", Lord Carloway concluded.

Click here to view the opinion.

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