Appeal against Conviction by Kassim Ashley Green Nicholas against His Majesty's Advocate (High Court of Justiciary)

Factual and Procedural Background

The Appellant was convicted after trial in the High Court of two charges arising from events on 22 October 2022 in The City: (1) assault causing severe injury to the deceased Victim and (2) attempted murder of Complainer/Witness A by driving a motor vehicle at him. The Appellant received an extended cumulo sentence of 12 years, with a custodial term of 9 years. This appeal concerns only the second charge and is brought under section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995, alleging a miscarriage of justice due to fresh evidence not heard at trial. The trial took place in the High Court at The City on 25 September 2024. A "soul and conscience" certificate from a consultant psychiatrist at The Hospital dated 23 September 2024 stated that Witness A was an in-patient, detained on a short-term detention certificate, suffering a psychotic episode and unlikely to be fit to attend court for four weeks. Witness A was listed on the indictment but was not called at trial. Evidence at trial included DNA linking Witness A to blood on locations and vehicles and testimony from a taxi driver (Witness B). A procedural hearing on 15 January 2026 ordered a hearing on whether there was a reasonable explanation for the fresh evidence not having been heard; this opinion was delivered by Judge Pentland resolving that hearing.

Legal Issues Presented

1. Whether the Appellant has shown a reasonable explanation, within the meaning of section 106(3A) read with section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995, for why the fresh evidence contained in an affidavit from Witness A was not heard at trial.

Arguments of the Parties

Appellant's Arguments

• The affidavit of Witness A (dated 5 August 2025) constitutes fresh evidence that would exculpate the Appellant by describing events differently (stating he had been stabbed by another, was hit by a car while running and that the driver—allegedly the Appellant—did not assault him).
• There was a reasonable explanation for Witness A's evidence not being produced at trial: the information in the affidavit was not known before trial; Witness A had not given a police statement; the soul and conscience certificate made precognition or insisting on attendance inappropriate; and the material did not become available until Witness A contacted the Appellant's solicitor.
• Senior counsel who conducted the trial explained by email that neither defence nor Crown expected Witness A to attend and did not consider precognoscing him; the defence's trial strategy focused on asserting the Crown could not prove the Appellant was the driver.

Crown's Submissions

• The Appellant knew of Witness A's existence and whereabouts (listed on the indictment) and could have attempted to precognosce him or asked the Crown to cite him; if necessary Witness A could have been precognosced on oath.
• In light of the soul and conscience certificate the Appellant could have sought an adjournment; no motion to adjourn was made.
• If Witness A's affidavit is true its contents would have been within the Appellant's knowledge (e.g., if he assisted Witness A), so the Appellant cannot claim he did not appreciate its significance before trial and has not exhausted reasonable inquiries between first appearance and trial.
• The failure to trace or precognosce Witness A and the tactical decision not to seek an adjournment amount to no reasonable explanation for the evidence not having been led.

Table of Precedents Cited

Court's Reasoning and Analysis

The court framed the sole issue as whether the Appellant had shown a reasonable explanation for why Witness A's affidavit evidence was not led at trial. Applying the Campbell test, the court examined the factual matrix: Witness A was listed on the indictment as a Crown witness; the Appellant and defence were therefore aware of his potential significance well before trial. DNA and other trial evidence linked Witness A to blood at relevant locations and vehicles; Witness B's testimony (taxi driver) described a bleeding passenger who then ran away and was followed by cars.

The court noted the soul and conscience certificate indicating Witness A's hospital detention and probable unfitness for four weeks. It recorded that no attempt was made to adjourn the trial, and that at the preliminary hearing the defence expressly stated it did not require any Crown witnesses, a tactical position reiterated at trial. The court accepted the reply from senior counsel that neither Crown nor defence expected Witness A to attend and that no precognition was pursued.

The court applied authority (Campbell, Cameron, Mills, Marshall) to conclude that an accused cannot passively ignore significant lines of inquiry and later seek to admit evidence that was available or traceable by reasonable inquiry. It found the decision not to trace or precognosce Witness A and not to seek an adjournment amounted to an unexplained tactical choice. The Appellant sought to substitute a fundamentally different defence on appeal rather than bolster the original defence; admitting the affidavit would permit avoidance of consequences of strategic decisions taken at trial and would undermine finality. The Appellant had not shown he exhausted reasonable inquiries into existence, availability and content of Witness A's evidence. Accordingly, there was no reasonable explanation within section 106(3A) for the evidence not having been heard.

Holding and Implications

HOLDING: The appeal is refused.

Implications: The direct effect is that the Appellant's conviction on the second charge is maintained and the fresh affidavit evidence from Witness A is not admitted. The court's decision rests on established principles limiting the late introduction of evidence where tactical decisions at trial were made; the opinion does not purport to establish a new legal precedent beyond applying those established authorities.