Provoking witness unlikely to lead to desertion, Appeal Court rules

Provocative cross-examination by the defence of a Crown witness which results in outbursts regarding matters unrelated to the trial but known to the defence, will rarely lead to desertion of the diet, the Criminal Appeal Court has ruled.

In refusing the appeal against conviction of Steven Jackson, charged with murdering his former girlfriend Kimberley Mackenzie, the court commented that "if a person elects to prod a wasp’s bike, he is likely to get stung".

The appellant was convicted of assaulting the deceased with a hammer and a knife, and, along with his girlfriend, of dismembering her body and disposing of the parts. He was a known drug user and dealer; the two women concerned were also users. Hos co-accused said he had murdered the deceased in a frenzied attack.

His ex-wife, BW, was also a witness, the appellant having made incriminating statements to her. In police statements she referred to other damning matters concerning the appellant; she was also predicted to be a volatile witness. She had been warned about not revealing the other matters unless specifically asked, and was carefully examined in chief so as to avoid these.

In cross-examination defence counsel then began a robust cross-examination by asking whether BW was on medication and how long she had been a heroin user, which was followed by some sharp exchanges during which BW complained about cojunsel's manner to the judge, who said she would intervene if she thought there was any unfairness and that BW should just answer the questions. She was also allowed a break after becoming distressed. She was then accused of lying and seeking to "do down" the appellant, at which she made an outburst about "all the other stuff" and made allegations about the sort of things the appellant would do. Similar comments followed as counsel kept up his questioning. The judge refused a motion to desert on the basis of prejudicial remarks by BW.

On appeal it was argued that BW had not been unfairly treated; her outbursts had been calculated and deliberate attempts to damage the accused. Her remarks, which presented the appellant as a man of violence, who possessed weapons, and was capable of gratuitous cruelty, were so prejudicial that no direction from the judge could cure them.

Lord Justice General Carloway, who sat with Lords Brodie and Drummond Young, said in delivering the opinion of the court that it was for the trial judge to determine whether BW's remarks had so compromised the prospects of a fair trial that desertion became imperative, if a potential miscarriage of justice were to be avoided. "An appeal court places considerable weight on the views of the trial judge in this area."

It was important, though not determinative, that the offensive material emerged during cross-examination and not evidence in chief. "In modern times," he stated, "especially given that some witnesses may be less cowed in the face of authority than hitherto, there is an equal onus on defence representatives to take care both when framing questions which may be seen, particularly by the witness, as pressing a point too far. This is especially so when they are aware of the witness’s propensities and ability to cause harm. As was by analogy frankly acknowledged by the appellant’s counsel, if a person elects to prod a wasp’s bike, he is likely to get stung. That is a risk which defence counsel may face in many cases. He or she may not be open to criticism if he or she elects to adopt one mode of attack, but equally he or she cannot cry foul if the witness reacts in a predictable and damaging fashion."

He concluded: "In spite of the obvious dangers, counsel maintained his line. The court does not criticise counsel for that, it being a tactical decision for him to take, but the consequences in such circumstances can rarely be a desertion of the diet." the trial judge had reached a balanced and reasoned decision, and her subsequent directions were adequate to meet any potential prejudice to the appellant.

Click here to view the opinion of the court.