Court blunder sees criminal cleared of knife raid
Appeal judges today criticised prosecutor Rosemary Guinnane for causing the problem by asking an unnecessary and careless question.
The question led to a detective telling a trial that restaurant worker Salvatore Sivero, 30, had previously served a jail sentence.
Sivero was accused of committing two robberies, within hours, in Edinburgh in July 2011.
First he struck at a Shell service station in Glasgow Road where employee Kevin Lillie was threatened with a knife and Sivero fled with £50 and a pack of cigarettes.
Soon afterwards, shopkeeper Mohammed Aslam, 54, was also held-up at knifepoint as he demanded cash at his newsagents in the city’s Brunswick Street.
Detective constable Peter Stark told a jury that he recognised Sivero as the robber from CCTV footage from a nearby Scotmid store.
Advocate depute Ms Guinnane asked the detective if he had played any other part in the inquiry.
Judge Lord Stewart, in his report to the Court of Criminal Appeal in Edinburgh, said there was “a noticeable pause” before Det Con Stark replied.
“I made some enquiry on the Wednesday with the Edinburgh Prison to find out if Mr Sivero was in or out of custody and was told that he had been released from custody in 2009,” he said.
Defence advocate Drew McKenzie agreed that the prosecutor had not intended to reveal the damning information but asked Lord Stewart to scrap the trial.
The judge refused, saying any prejudice Sivero might be thought to have suffered could be countered when he give the jury their instructions.
But today, Lady Paton, sitting with Lord Mackay of Drumadoon and Lady Cosgrove disagreed.
Lady Paton, giving their ruling, said the “lack of care” in the prosecutor’s questioning, had tipped the scales in favour of Sivero.
She added that the trial judge had erred in the exercise of his discretion when he refused to halt the trial.
The appeal judges said there was no easily understandable reason why Ms Guinnane had asked Det Con Stark if he had played any further part in the inquiry.
Once he had identified the photos, that was enough.
There was also other information in the detective’s written statement which should have alerted her to the fact that the officer knew Sivero had previously committed similar robberies at petrol stations and shops in Edinburgh.
“Against that background it is our view that the question put was lacking in the level of care called for in the circumstances,” said Lady Paton.
The appeal court heard that Sivero had admitted the robbery at the Glasgow Road service station and did not challenge his conviction on that charge.
He was sent to prison for a total of five years for the two July raids - plus 600 days left over from an earlier sentence because Sivero was still on licence at the time.
He remains in jail and will return to the appeal court at a future date for judges to review his sentence in the light of today’s decision overturning the conviction for the robbery at the newsagent’s shop.
At the time of the robbery Sivero had a heavy cocaine habit.