Daniel Alexander Robertson v. His Majesty’s Advocate [2024] HCJAC 45

Note of appeal against conviction:- On 25 January 2024, following a trial at Edinburgh High Court, the appellant was convicted of the rape of 2 complainers (MM and AF). He was sentenced to seven years imprisonment. The appellant appealed against his conviction, it being contended that the trial judge ought to have deserted the trial pro loco et tempore because of the presentation of the appellant during the course of his cross-examination by the Advocate depute during his trial it being said that he could not properly complete his evidence or give it in an appropriate manner. The circumstances were that immediately prior to the start of the trial a newly instructed solicitor advocate on behalf of the appellant, following an initial consultation, raised concerns about the appellant’s fitness for trial and requested an opportunity for Dr Gary MacPherson to carry out an assessment of him. The trial judge allowed that and the trial was adjourned to the following day. Dr MacPherson carried out an assessment and advised the solicitor advocate verbally in the absence of a written report at that stage that there was no issue about the appellant’s fitness for trial but that simple language and regular breaks would be beneficial. The appellant gave evidence and was in due course cross-examined by the Advocate depute during which there were repeated objections and interruptions by the appellant’s solicitor advocate which culminated in the appellant at around 1605 hours on Friday 19 January 2024 indicating to the court that he felt unable to continue his evidence. The trial was adjourned for the weekend. On the following Monday, outwith the presence of the jury, the trial judge told the solicitor advocate not to interrupt cross-examination again and he replied that he would do so if he felt justified in doing so. When the cross-examination of the appellant recommenced a point was reached when the appellant responded to questions put with the answer “no comment” causing the appellant’s solicitor advocate to interrupt the evidence by advising the court that he had submissions to make following which the trial judge told the solicitor advocate to “sit down” causing the solicitor advocate in the presence of the jury to state:- “I’d like it noted in the record I’ve asked for an adjournment to discuss the obvious difficulty my client’s having and the court has refused that. It will now be in the record.” Shortly afterwards the evidence of the appellant concluded and the defence sought a further adjournment following which the solicitor advocate complained about the way in which the trial judge had spoken to him and submitted that the appellant may have experienced some form of psychiatric breakdown during his cross-examination and requested that Dr MacPherson reassess him. A further adjournment was granted during which time Dr MacPherson reassessed the appellant and again described him as fit for trial. The solicitor advocate for the appellant invited the court to desert the trial on the basis that the court had failed to recognise the appellant’s vulnerability. The court refused the motion and subsequently refused a compatibility issue minute in which it was contended that the trial breached the appellant’s Article 6 rights to a fair trial due to the admission of the hearsay evidence of a complainer under section 259 and also the refusal of an application under section 275. Here it was submitted on behalf of the appellant that the trial judge erred in refusing to desert the trial. Here the court refused the appeal and made a number of criticisms of the way in which the trial had proceeded, the delays which had been caused and the conduct of the defence in particular. The court reiterated the importance of “trials commencing on time and proceeding in an efficient and orderly manner”. The court observed that at no stage were special measures sought in respect of the appellant. The court observed that in circumstances where an accused’s legal representation changes close to trial regard must be had to the procedure followed before and is not a basis for “re-setting the clock” to review matters which had been previously dealt with. The court considered that the invitation by the defence to desert the trial was “entirely without foundation”. The court raised concerns regarding the making of ill-founded objections containing misleading information and emphasised the need to maintain at all times the “long-standing tradition of mutual trust and courtesy between bench and bar”.