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Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

Convicted robber wins appeal over his trial’s ‘failures’
A convicted robber has had his case referred to the High Court of Appeal because of failures in the collection and disclosure of evidence at his trial.

The Scottish Criminal Cases Review Commission referred the case of James Kinsella, convicted of holding a disabled pensioner at knifepoint during a post office raid, over concerns that it may have been a miscarriage of justice.

Kinsella was jailed for nine-and-a-half years at the High Court in Edinburgh in July 2005. He received four years for holding a knife to the neck of sub-postmaster Frances Reid, then aged 60, as he demanded cash at an office in Brechin, Angus, in April 2004, and four-and-a-half years for the serious assault of a man in a nearby pub a week later.

Kinsella, then 33, pled guilty to the serious assault but denied the attempted robbery, lodging a special defence of alibi stating that he was in Dundee at the time of the alleged offence.

The commission referred Kinsella's conviction on the assault and attempted robbery charge to the appeal court on three grounds: that his legal representative failed to prepare his defence adequately; Tayside Police failed to investigate his defence of alibi; and that there were shortcomings in his identification process. The commission said it was referring Kinsella's case to the High Court of Appeal because of the failure of his lawyers to recover certain evidence and material in support of his special defence of alibi, which deprived him of a fair trial and may have led to a miscarriage of justice.

The commission also considered Tayside Police failed to fully investigate his alibi and the same evidence and materials. The commission also said the Crown did not disclose certain information to the defence in relation to Kinsella which was in its control or the control of Tayside Police.

Since the commission's inception in 1999 to review alleged miscarriages of justice in Scottish convictions, the matter of failure to disclose evidence has been a theme within referrals to the High Court of Appeal.

These include Lockerbie bomber Abdelbaset Ali Mohmed al Megrahi, who was granted fresh leave to appeal last year by the commission.

The previous year Stuart Gair was cleared of murdering a man in Glasgow after protesting his innocence for 17 years.

Lord Abernethy, the judge, said a failure to disclose witness statements to his lawyers deprived the defence of a "powerful argument" on identification.

http://www.theherald.co.uk/news/n...peal_over_his_trials_failures.php

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

The exact same happened in my case and SCCRC never bothered to investigate my grounds properly.

The Police showed Photos before my ID Parade.

The police Participated in the ID Parade with one assisting with witnesses.

The police witness had No 2 out his mouth before turning to view the parade according to my Lawyer.

Crown failed to reveal a statement saying the driver was forty year old with brown hair and moustache when I was only 20 with black hair.

Witnesses spoke in court of being shown photos when a jury should never be told you have been Identified by photos.

Stand ins at the Parade included:

One with a moustache.
One with Curly Hair.
One with blonde hair.

My hair was Black still is and has never been culry, I have also never had a moustache.

Three stand ins not plausible

But then again James Kinsella did not have Bill Taylor (Who Also defended Megarhi Very Badly too) defending him.

Taylor was also allowed to remain on the board of SCCRC while they "Never" Investigated my case but forced to resign when Megrahi appealed to them, to allow them to remain Independent and Impartial

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

SCCRC Refer A Case On Non Disclosure

What is non disclosure:
Non disclosure is when Crown know of a witness that could lead exculpatory evidence.
It seems a regular ground in referrals by SCCRC.

Assault Rap Care Worker Cleared
Sep 17 2008

A CARE worker convicted of two attacks on women has won a three year battle to clear his name.

David Ballingham, 58, was found guilty by a sheriff and sentenced to 120 hours' community service on May 19, 2005.

Though he consistently denied he had anything to do with the incidents, he lost his job as a nursing assistant for the elderly at Kildean Hospital in Raploch, Stirling.

Mr Ballingham, who now works as a driver, has been cleared after the Scottish Criminal Cases Review Commission found a witness to one of the two attacks not revealed at his trial.

The witness reported seeing a man in his twenties running away after assaulting the woman beside the Forth and Clyde Canal.

Mr Ballingham, of Falkirk, said yesterday said: "I'm over the moon that my conviction has been quashed."

The same happened in my trial with the following evidence:

Larger Version:

http://www.flickr.com/photos/big-wullie/2346425163/sizes/l/

David Livingstone described the driver as "Forty Years Old" with brown hair and a moustache, I was only twenty and Identified twice as the driver, one of whom the Judge Described as "Unreliable" the other an Off-Duty "Policeman"

At the very least I was denied a fair hearing on the ground I was denied this evidence to put to the two witnesses that wrongly identified me.

Besides that a joiner had given the police and PF a statement saying he was at my house on the date and time of robbery, None of his statements have ever been seen by me nor my defence team.

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

Today SCCRC referred the case of Gary Edward Polland found here:

http://www.sccrc.org.uk/viewfile.aspx?id=367

Their main grounds for referral are:

1.

2.0 Reasons for Referral
2.1 The Commission reviewed a number of grounds in relation to Mr.
Polland’s case and has decided to refer his case on the following two
grounds.
2.2 The Commission considers that the Crown did not disclose to the defence
certain information in relation to the identification of Mr. Polland. In light of the
decisions of the Judicial Committee of the Privy Council in Holland v HMA
2005 SCCR 417 and Sinclair v HMA 2005 SCCR 446, and the decisions of the
High Court in Gair v HMA 2006 SCCR 419 and Mason & McDougall v HMA
2008 SLT 656, the Commission considers that the failure by the Crown to
provide the defence with the information infringed Mr. Polland’s rights to a fair
trial under article 6 of the European Convention of Human Rights and may
have led to a miscarriage of justice.

2.

2.3 The Commission considers that counsel failed to prepare adequately
Mr. Polland’s defence and failed effectively to cross-examine witnesses and
that Mr. Polland’s defence was not presented in accordance with his
instructions. In light of the decisions of the High Court in Anderson v HMA
1996 SCCR 114 and E v HMA 2002 SCCR 341, the Commission considers
that those failures amount to defective representation because they deprived
Mr. Polland of a fair trial and may have led to a miscarriage of justice.

It really is nice to see them refer a second case on Defective Representation since their inception in 1999 nine years ago.

I fail to see how they could not see the same grounds present in my own case.

Lawyer wasn't called to say police had No 2 out his mouth before turning to view the parade.

Defence team never interview 16 of my 19 defence witness's.

Defence never called evidence describing driver as double my age with different colour of hair and moustache.

Defence failed to ask Crown for copy of second ID Parade report, despite knowing someone had been picked positive

Crown Failed to release 2 statements which have never been released, even today, despite the two witnesses giving statements to the PF and police.

Defence team failed to ask witnesses about their "Criminal Injuries claims" despite being directed to do so.

Defence allowed the police to show photos before ID Parade without questioning it.

Defence never seriously challenged the Identification evidence despite severe discrepencies within their statements and their evidence.

Different Rules for Different Fools right enough, It's not what you are complaining about that SCCRC take into account But Who you are complaining of.

This certainly shows them up for what they are and proves there is no consistency within the ranks at SCCRC.

My QC closed my defence without consulting me or my Solicitor, Apparently he went on to do the same with Mr Megrahi