Paolo Parracho v. Her Majesty's Advocate [2011] HCJAC 11

Criminal Note of Appeal Against Conviction:- The appellant went to trial at the High Court at Glasgow on 6 January 2009 on a charge of murder. On 9 January 2009 the Crown closed their case. Subsequently the defence made a "No Case to Answer" submission. During the course of the submission reference was made to the absence of a link in the DNA evidence, in that there was no evidence placed before the jury in relation to the taking of a DNA sample from the appellant. There had been an informal conversation between counsel for the appellant and the Advocate Depute in which it was agreed that the taking of the sample could be incorporated in to a joint minute of admissions, however, no joint minute to that effect was placed before the jury. The Advocate Depute conceded that this had been an error on his part and went on to seek to rely on sections 280 and 281 of the Criminal Procedure (Scotland) Act 1995 to remedy the situation. The trial judge decided that given the nature of the case and the possibility of the court deserting the diet pro loco et tempore it was appropriate that additional judges join him for disposal of these issues. Thereafter the Advocate Depute renewed his submission in reliance on sections 280 and 281, however, the enlarged court rejected that submission. Thereafter, the Advocate Depute moved the court to desert the diet pro loco et tempore. Counsel for the appellant opposed that motion. The court granted the motion. The court then deserted the diet pro loco et tempore and in terms of section 81(2) appointed a further trial diet to proceed the following day. The second trial then proceeded in which evidence was led by the Crown which linked the appellant to the DNA forensically examined. On 21 January the Advocate Depute closed the Crown case. A submission of no case to answer was made on behalf of the appellant. The court repelled that submission. On 23 January the jury unanimously found the appellant guilty of the charge of murder and he was sentenced to life imprisonment, with a punishment part of 17 years. The appellant appealed against his conviction including inter alia the following ground:- "That the trial court erred in allowing the Crown to desert the diet pro loco et tempore simply because of the failure on the part of the Crown to lead evidence crucial to its case". It was submitted on behalf of the appellant that the Crown had made an error in not leading the DNA evidence and the Crown should not have been allowed to re-open its case by the back door. It was submitted on behalf of the Crown that the trial judge was entitled in the interests of justice to desert the trial having regard to the whole circumstances. Here the court considered whether it was appropriate for the case to be deserted due to the failure by the Crown to lead all of the evidence which they sought to rely on. The court went on to consider the circumstances where such a desertion is the appropriate procedural disposal but is a course to be followed only in exceptional circumstances. The court thereafter went on to consider whether, in the event that the trial judge was in error in deserting the trial in the first instance whether, leaving aside the DNA evidence, there was sufficient evidence to convict the appellant.