In this case information had not been disclosed to the defence, and had it been disclosed the conduct of the case for each side would have been different. Therefore, non-disclosure here went to the question of trial fairness [32].
The question of trial fairness is not answered by considering what verdict the appellate judges would have reached at a hypothetical trial [38]:
"One cannot, of course, avoid making some assumptions as how the trial might have been conducted if the material had been disclosed to the defence. It will always be a question of degree as to how far it is proper to go in carrying out that exercise. But the purpose of doing this is to assess the extent to which, having regard to the way the case was conducted by the Crown, the material would have weakened the Crown case or strengthened the case for the defence. It is on the case as presented at the trial that the court must concentrate, rather than the case as it might have been presented. It is not for us to speculate as to what the case might have been, much less how the jury would have reacted to it. What the Crown asks us to do, and what it persuaded the Appeal Court to do, was to consider the case on the basis that the discovery of the rings on 7 May was indicative of the appellant's guilt for completely different reasons from those advanced at the trial. In effect we were being asked to deal with the case as if we were a new jury trying the case for the first time. This is not permissible. Our task is quite different but entirely clear. As the Appeal Court said in McCreight v H M Advocate [2009] HCJAC 69, 2009 SCCR 743, para 95, it is not the court's task to decide what the outcome of the trial would have been if the trial had been conducted on an entirely different basis. We must ask ourselves whether, in the light of the undisclosed evidence, there is a real possibility that the jury at this trial would have arrived at a different verdict."
The trial would have been unfair if there was a real possibility that had the error not occurred the jury would have reached a different verdict.The case illustrates how an appellate court should apply this test. At trial the prosecution had alleged that the defendant's guilt of his wife's murder was demonstrated by her rings that could only have been found where they were if he had removed them from her corpse. The non-disclosed evidence was that the rings had been at that location before she died.
"[39] The proposition that the appellant had returned the rings to the bathroom on 7 May was, as the Advocate Depute said in his address to the jury, the cornerstone of the Crown's case. It is clear, in view of the direction that was then given to them by the trial judge, that the jury must have concluded that the appellant put the rings in the bathroom on 7 May. This was the basis for the Crown's theory that he had obtained the rings from the deceased's dead body and had placed them in the bathroom to create the impression that she had left the matrimonial home with the intention of turning her back on the life that she had had there. This theory would have been undermined by the evidence of PC Lynch and WPC Clark. It would have been challenged by lines of cross-examination of the Crown witnesses that were never developed at the trial, and by questions that were never put to the appellant in chief or in re-examination. The point could have been made that it was improbable that, if the rings were in the bathroom on 28 and 29 April when the police visited the house, the appellant would have removed them and then chosen to return them on 7 May. The theory that he removed them from the dead body would, if the evidence of PC Lynch and WPC Clark were to be accepted, have been untenable. These and other arguments that the defence would have been able to develop would have struck at the heart of the case that the Crown presented. The trial would have been significantly different had the material that was not disclosed been available. There is a real possibility that this would have been sufficient to raise a reasonable doubt about the Crown's case that the appellant returned the rings to the bathroom on 7 May. If that were so, the jury's verdict would be bound in view of the trial judge's direction to have been different."
It was the real possibility of a different verdict that made the trial unfair.Non-disclosure significantly affected the course of the trial. This was not a case of freshly discovered evidence, although I think the difference should be immaterial because the ultimate question is whether there is a real possibility that the omission affected the verdict.
I have suggested that all conviction appeals raise issues of trial fairness. This is because a fair trial is one where the law is properly applied to facts that are determined impartially. "Impartially" is used in a wide sense to include actual and apparent bias as well as inaccuracy. Even appeals challenging jurisdiction raise fairness in this sense, as without jurisdiction the law is not properly applied. Fresh evidence appeals also concern fairness, as the newly discovered evidence may demonstrate a real possibility that the verdict was wrong. There can be unfairness even if the verdict was not affected, where the law was not properly applied, but this was not that sort of appeal.
I have recently (7 April 2011) mentioned misuse of hypotheticals by appellate courts, and have also criticised the usurpation of the jury role by appeal judges, for example here (9 July 2009) and here (25 June 2007), and here (16 January 2006).
