Knifepoint robbery conviction quashed due to ‘careless’ prosecutor
During Salvatore Sivero’s trial for the two early-morning robberies in Edinburgh, a detective was asked about his role in the inquiry.
His answer suggested that Sivero, 30, had a criminal record and had served a jail term in the past, neither of which ought to have been revealed to the jury.
The Court of Criminal Appeal in Edinburgh criticised the question by advocate-depute Rosemary Guinnane which had drawn the answer, and ruled that Sivero had suffered a miscarriage of justice.
“We accept that what occurred was not deliberate (but) we consider that the question was unnecessary and prima facie careless...,” said Lady Paton, sitting with Lord Mackay and Lady Cosgrove.
Sivero was jailed for five years for the two offences and a new sentence for only the incident at the filling station will be imposed at a later hearing.
The robberies occurred at 4am and 6:50am at the Shell garage in Glasgow Road, Edinburgh, and MA Newsagents in Brunswick Road, Edinburgh, on 19 July, 2011.
In the first, Sivero presented a knife at Kevin Lillie, an employee, and robbed him of a packet of cigarettes and £50.
In the second, the raider held a knife to the throat of the shopkeeper, Mohammed Aslam, 54, who fought back and struck the man with a stick and suffered a broken thumb in the struggle. The robber escaped with £200.
Sivero admitted the Shell charge but denied the shop robbery.
Detective Constable Peter Stark told the jury he had recognised Sivero in closed circuit television footage taken near the shop. Ms Guinnane then asked if he had played any other part in the inquiry. After hesitating, possibly expecting the question to be changed or withdrawn, the officer said he had checked with Edinburgh Prison “to find out if Mr Sivero was in or out of custody and was told that he had been released from custody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.”
Sivero’s lawyers argued that the trial should be halted, but the judge, Lord Stewart, allowed it to continue with a direction to the jurors that they should ignore the reference to Edinburgh Prison. Sivero was convicted of the shop robbery by a majority verdict.
The appeal judges heard that Ms Guinnane had been working from a witness statement by DC Stark which had mentioned a jail term Sivero received in 2007 for a series of robberies at petrol stations and shops.
Lady Paton said the statement should clearly have alerted the prosecutor that great care had to be taken not to divulge the information to the jury.
“Against that background, it is our view that the question put was lacking in the level of care called for in the circumstances. We consider there is a significant risk that DC Stark’s disclosure of the appellant’s previous prison sentence, when added to his admission of guilt in respect of charge one and the similarities in modus operandi between charges one and two, may have influenced the jury in favour of a verdict of guilty of charge two, thus resulting in prejudice to the appellant,” said Lady Paton.
The judges said the trial ought to have been stopped and that Lord Stewart was wrong to have let it continue.
“We are satisfied that this resulted in a miscarriage of justice. We shall accordingly allow the appeal and quash the conviction in respect only of charge two,” added Lady Paton.