Monday, 19 November 2012

law report - non disclosure of police interview, mistrial

Simons v Miller [2012] SC (Bda) 67 App

The Appellant had been convicted in the Magistrates' Court. Part of the Magistrate's reasoning for convicting him was that his evidence in defence lacked credibility and depended on allegations about prosecution witnesses that had not been put to them in cross-examination.

He was appealing as the police interview had not been disclosed before trial.

Kawaley CJ listened to the Respondents submissions that counsel for the Appellant was aware of the existence of the interview, as it was mentioned in the Police Officer's statement, but had not asked for it; and that the Magistrate had relied on other evidence to find the Appellant guilty.

It was held that the failure to disclose the interview record had denied the Appellant a fair trial. Whether or not an appeal is upheld will depend on whether the failure to disclose was material to the outcome. In this case, the interview record might have influenced the Magistrate's reasoning in that it would show that the Appellant's evidence was not a recent invention but had been maintained from the start.This might positively affect his credibility, notwithstanding that defence allegations were not put to witnesses in cross-examination.

Even though some of the fault lay at the feet of the Defence, the appeal was upheld, and the case remitted to a different magistrate.

Comment - attention is also drawn to the English Court of Appeal case of R v Hadley [2006] EWCA 2544, where it was held that an appeal would be upheld if the non-disclosed evidence was capable of affecting the jury's mind, i.e. unless the other evidence against the accused was so strong that the undisclosed material could have made no difference to the outcome.

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