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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> AG for the Sovereign Base Areas of Akrotiri and Dhekelia v Steinhoff(Akrotiri and Dhekelia) [2005] UKPC 30 (19 July 2005) URL: https://www.bailii.org/uk/cases/UKPC/2005/30.html Cite as: [2005] UKPC 30 |
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AG for the Sovereign Base Areas of Akrotiri
and Dhekelia v Steinhoff(
Akrotiri
and Dhekelia) [2005] UKPC 30 (19 July 2005)
ADVANCE COPY
Privy Council Appeal No. 1 of 2005
The Attorney General for the Sovereign Base Areas of
Akrotiri
and Dhekelia Appellant
v.
William John Steinhoff Respondent
FROM
THE APPEAL COURT OF THE SOVEREIGN
BASE AREAS OFAKROTIRI
AND DHEKELIA
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 19th July 2005
------------------
Present at the hearing:-
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Sir Andrew Leggatt
Sir Swinton Thomas
[Majority Judgment delivered by Baroness Hale of Richmond]
------------------
The issue
"(a) dismiss the appeal;
(b) allow the appeal and quash the conviction if it thinks that the conviction should be set aside on the ground that it was, having regard to the evidence adduced, unreasonable or that the judgment of the trial court should be set aside on the ground of a wrong decision on any question of law or on the ground that there was a substantial miscarriage of justice:
Provided that the Senior Judge's Court, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred;
(c) ...
(d) order a new trial before the Court which passed the sentence or before any other Court having jurisdiction in the matter."
Thus in the Sovereign Base Areas the test both for allowing an appeal and for the application of the proviso is whether there has been a substantial miscarriage of justice.
The case
"In conclusion, we take the view that the case must depend principally on our assessment of [the complainant] as a reliable and credible witness as the prosecution contend. We observed that she showed enormous distress and horror when shown her clothing in the witness box. We are satisfied that this was a genuine reaction and not simulated, and supports the prosecution's contention that she had indeed suffered this appalling experience. Despite strenuous cross-examination she generally adhered to her account and we conclude her evidence rang true."
They also concluded that there was no realistic reason for her to have lied. She had a good relationship with her employer and nothing against the respondent. Any hope that making such a complaint would assist her to stay despite the irregularity of her employment would be outweighed by the shame in her community of making public such an experience. They took into account the points made by the defence, but nevertheless found the complainant's evidence compelling. They did not believe that she could have fabricated it and were satisfied that she had not done so. Overall the court found that the case against the respondent was proved to the standard required in a criminal case.
This appeal
"If some irregularity comes to the knowledge of Counsel before the verdict is returned, he should bring it to the attention of the court at the earliest possible moment so that the presiding judge may consider whether or not to discharge the jury without giving a verdict. Points of the sort ought not to be held in reserve with a view to taking them before this court when it may be, as here, too late to remedy the mistake."
Discussion
"In principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs (3)(d) and (1) of article 6, provided the rights of the defence have been respected. As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings."
Hence, there was a violation when the national court had treated the statements of anonymous witnesses, who had been examined in the absence of the accused and his representatives, as sufficient proof. In Van Mechelen v The Netherlands (1997) 25 EHRR 647, there was a violation when an investigating judge had arranged hearings where the anonymous witnesses were in one room and the judge, parties and lawyers were in another room, with only an audio link. The defence were therefore not only unaware of the identity of the prosecution witnesses, but also unable to observe their demeanour under direct questioning at any time.
Disposal
(1) The trial court reached its verdict without assessing the totality of the evidence and/or without making findings as to material facts and/or as to the credibility of the witnesses, especially the witnesses for the defence.
(2) The trial Court accepted the evidence of the complainant as reliable and convicted the Appellant thereon without any reference to the multiple and/or material inconsistencies in her evidence and/or to the multiple and/or material inconsistencies between her evidence and the evidence of the other prosecution witnesses and/or accepted parts of the complainant's evidence without giving any reasoning as to why it ignored selectively the remainder of her evidence, especially the material inconsistencies and/or the parts which were against common sense and/or contrary to undisputed facts and/or constituted perjury.
(3) The trial Court failed to make findings as to material facts and/or issues and drew inferences from primary facts which were inconsistent with the complainant's evidence and/or disputed facts.
(6) The conduct of the proceedings in general left the Appellant with a strong feeling that his trial was not fair and/or that the trial court was not impartial and/or that justice was not duly administered and/or that his submissions were not given due weight and/or were not properly examined.
"First, the appellate judge must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It also applies to the judge's evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc (1996) 38 BMLR 149 at 165; [1997] RPC 1, 45:
'The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance ... of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.'
The second point follows from the first. The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgments ... but also of a reserved judgment based upon notes ..."
These comments were made in a civil case where of course the standard of proof and rules of evidence are different from those in a criminal case. But they are nonetheless pertinent because the appellate court does not normally have the luxury of considering the reasons given by the trial court for its factual findings. The appellate court should be slow to intervene with the trial court's findings if it would not have been able to do so in either a civil trial or a criminal trial by jury.
Retrial
"... the interest of justice that is served by the power to order a new trial is the interest of the public ... that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury."
Furthermore, at p 350:
"... it is not necessarily a condition precedent to the ordering of a new trial that the Court of Appeal should be satisfied of the probability that it will result in a conviction. There may be cases where, even though the Court of Appeal considers that upon a fresh trial an acquittal is on balance more likely than a conviction,
'It is in the interest of the public, the complainant, and the [defendant] himself that the question of guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery.'
This was said by the Full Court of Hong Kong when ordering a new trial in Ng Yuk-kin v The Crown (1955) 39 HKLR 49, 60. That was a case of rape, but in their Lordships' view it states a consideration that may be of wider application. ..."
Conclusion
______________
Dissenting judgment by Lord Rodger of Earlsferry and
Lord Brown of Eaton-under-Heywood
"In conclusion, we take the view that the case must depend principally on our assessment of [the complainant] as a reliable and credible witness as the prosecution contend. We observed that she showed enormous distress and horror when shown her clothing in the witness box. We are satisfied that this was a genuine reaction and not simulated, and supports the prosecution's contention that she had indeed suffered this appalling experience. Despite strenuous cross-examination she generally adhered to her account and we conclude her evidence rang true."
It is plain from this passage that the court's observation of what the judges regarded as the "enormous distress and horror" of the complainant when shown her clothing played a material part in their conclusion that she was a reliable and credible witness. But neither the respondent nor his counsel was in a position to see that reaction which was to play such a material role in the court's assessment of the complainant as reliable and credible and, hence, in their decision to convict him. The long and the short of it is, therefore, that the respondent was entirely unaware of what was judged to be a highly significant piece of evidence against him until it came to be mentioned in the court's reasons for convicting him.