Introduction

The case of Mark Wishart v Her Majesty's Advocate ([2022] HCJAC 30) presents a pivotal examination of jury procedures related to the identification of a defendant in criminal trials. Mark Wishart was convicted of attempted murder following an incident in Perth, Scotland, where he allegedly used his vehicle to strike pedestrians. The crux of his appeal centered on the trial judge's refusal to allow the jury a close-up view or photograph of the accused, which Wishart argued impeded the jury's ability to make an accurate identification, leading to a miscarriage of justice.

Summary of the Judgment

On 12 November 2021, Mark Wishart was convicted by the High Court of Justiciary in Dundee for attempted murder, receiving a six-year imprisonment sentence. The prosecution's case hinged on proving that Wishart was the driver of the vehicle involved in the attack on two pedestrians, Scott Peletier and Kirk Fisken. Despite the appellant's challenge regarding the identification process, the Appeal Court upheld the conviction. The court concluded that the trial judge erred only in treating the jury's request for a close-up or photograph as a matter of law rather than discretion, but this did not result in a miscarriage of justice given the overwhelming circumstantial evidence presented.

Analysis

Precedents Cited

The judgment references several precedents to underpin its reasoning. Notably:

• Elphinstone v Richardson (2012 SCCR 418): This case established that the identification of a perpetrator can be sufficiently supported by circumstantial evidence, such as consistent vehicle identification and the defendant's admission.
• HDJS v HM Advocate (2018 SCCR 98): Highlighting that when both parties agree to a particular course of action regarding evidence presentation, it is exceptionally rare for an appeal to succeed. This precedent was pivotal in assessing the trial judge's discretion and the defense counsel's agreement with the refusal of additional evidence.

These precedents influenced the court's stance that the trial judge acted within his purview and that the existing evidence was adequate to support the conviction.

Legal Reasoning

The core legal question revolved around whether the trial judge erred in denying the jury's request to view a close-up or photograph of the accused. The Appeal Court delineated that:

• The jury's request did not amount to the introduction of new evidence but was a standard procedural request to aid in identification.
• The accused's presence and ability to be observed during the trial inherently provided the jury with the means to make an identification without additional photographs.
• The trial judge's refusal was initially misconstrued as a legal decision rather than a discretionary one. However, even under discretionary lens, the refusal was deemed appropriate given the circumstances.

Furthermore, the court emphasized that the defense counsel's agreement with the judge's decision indicated a mutual understanding of the sufficiency of existing evidence, thereby reinforcing the legitimacy of the trial outcome.

Impact

This judgment reaffirms the boundaries of judicial discretion concerning jury requests for visual identification aids. It underscores that while juries have the right to observe the accused, such observations occur within the established courtroom procedures without necessitating additional visual aids post evidence presentation. The decision also highlights the weight of circumstantial evidence in securing convictions, potentially influencing future cases where direct eyewitness identification is questioned.

Complex Concepts Simplified

Conclusion

The Appeal Court's decision in Wishart v HM Advocate serves as a critical reference point for the interplay between jury rights and judicial discretion in identification processes. By upholding the conviction despite the trial judge's initial error in interpreting the jury's request, the court reaffirmed the robustness of circumstantial evidence and procedural integrity within the Scottish legal system. This judgment underscores the importance of comprehensive evidence evaluation and the balanced exercise of judicial discretion to ensure fairness and justice in criminal proceedings.