The defendant appealed against his conviction for murder saying that since part of the trial had been in camera the result was unsafe.
Held: The appeal failed. The Court addressed submissions advanced on his behalf indicating how substantially the essence of the appellant’s case was in fact publicly disclosed: ‘He [Mr Robertson] contends that if the evidence which was taken in private, which consisted of four witnesses plus that of the defendant, had been heard in public, there would have been likely to be significantly greater media coverage of the trial, and that there is a real possibility that additional witnesses supporting the defendant in his case would have come forward on seeing it. In particular, he suggests that there is a real possibility that witnesses would have come forward to confirm the existence and gangster characteristics of those whom the defendant blamed for the supply to him of the deceased’s cheques, credit card and banking information. Secondly, he says, there may well have been further evidence of the essentially good and non-violent past character of the defendant.
This possibility was considered carefully at the time of the decision to conduct part of the case in camera. We are unable to see that it can be more than the merest speculation. Most of the trial was conducted in public. The defendant was able to name the three persons who he said were responsible for the supply of the cheques and to give a good deal of circumstantial identifying material. The order for the taking of evidence in private had excluded that part of his evidence, expressly so that it could be heard by anyone who chose to be in court, but the defendant when he came to give evidence was unable to confine himself even for a brief period to this kind of material and so it was in the end necessary for all his evidence to be taken in private. Nevertheless, the information about the alleged gangsters was available to be put to several Crown witnesses who gave evidence in open court, including the officer in the case who was cross-examined about them and about what efforts had been made to trace them. Moreover, at the first trial counsel for the defendant had made an opening statement after the Crown opening – in public – and had had the opportunity, taken as we understand it, to identify the persons on whom, on the defendant’s case, the defence turned. At the second trial a similar statement could no doubt have been made, but as a matter of trial strategy no request to do so was made. The existence of Aming [Ah Ming] was confirmed by at least one witness and other information about him was elicited. The defendant was also able to advance, in open court, a number of allegations against a prosecution witness, He Jia Jin, and to put before the jury material which suggested, perhaps without much in the way of proof but advantageously so to the defendant, that that man similarly participated in nefarious activities. This all happened twice, in two trials a year or so apart. We are unable to accept that there is a real possibility that other evidence would have emerged given further publicity and that such would have been exculpatory. In reaching that conclusion we have taken into account the enormously strong evidence, summarised below, that the defendant’s account of being involved only in very limited use of the deceased’s identity and bank accounts at the behest of others, was simply not true.
Insofar as Mr Robertson suggested that further material might also have emerged on which to cross-examine the few witnesses who gave evidence in private this was not made out. The kind of material to which he referred was available at the time and no attempt was made to deploy it.
The suggestion that additional good character evidence might also have emerged is similarly unarguable. There was a great deal of evidence of the defendant’s character, both praiseworthy and non-violent on the one hand and less good, involving a history of forgery and dishonesty, on the other. The judge summed it up very favourably to the defendant.’
Judges:
Hughes LJ VP CACD, Saunders, Thirlwell JJ
Citations:
[2010] EWCA Crim 2072
Links:
Jurisdiction:
England and Wales
Citing:
Cited – A and Others, Regina v; Regina v The Crown Court at the Central Criminal Court ex parte A Times Newspapers Ltd etc CACD 13-Jan-2006
The defendant was to be charged with offences associated with terrorism. He had sought stay of the trial as an abuse of process saying that he had been tortured by English US and Pakistani authorities. The judge made an order as to what parts of the . .
See Also – Yam, Regina v CACD 28-Jan-2008
An order had been made for the trial of the defendant on a charge of murder to be held excluding both press and public. The Order had been made in the interests of national security and for the protection of the identity of a witness or other . .
Cited by:
See Also – Yam v Attorney General Misc 27-Feb-2014
Central Criminal Court . .
Cited – Wang Yam, Regina (on The Application of) v Central Criminal Court and Another SC 16-Dec-2015
The appellant was to apply to the ECHR challenge the fairness of his trial because it was held partially in camera. The UK resisted this application. The appellant sought to be permitted in his response to disclose and refer to contents of the . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 25 August 2022; Ref: scu.424866