Scottish High Court of Justiciary Decisons

At advising on 18th December 1975 the opinion of the Court was delivered by the Lord Justice-Clerk.

LORD JUSTICE-CLERK (Wheatley).—This is a stated case at the instance of the Appellant who was convicted of a charge that he was found in possession of 26 salmon in circumstances which afforded reasonable ground for suspecting that he had obtained the said salmon as a result of committing an offence against the provisions of section 1 or 2 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951, contrary to section 7 (1) of that Act.

The manner in which section 7 of the Act operates was fully set out by Lord Justice-General Clyde in Aitchison v. Bartlett 1963 J.C. 27 at p. 32, to which brevitatis causa, we refer. Counsel for the appellant submitted that certain procedural faults had occurred which vitiated the conviction, but conceded that if these were not established he could not argue that on the facts stated in the case the Sheriff was not entitled to convict. In our view this was a concession that on the facts could scarcely have been withheld, since there was ample evidence to constitute the suspicious circumstances which section 7 (1) requires, and the appellant's explanations were so incredible and suspicious that the Sheriff had more than ample justification for rejecting them and treating him as a witness of no credit.

An essential matter in the case presented by the respondent was the appearance of the fish in order to establish that they had not been taken by rod and line in violation of section 2 (1) of the Act. The fish were found in the appellant's possession some time after 11P.M. on 23rd December and were destroyed on the following day, the time not being stated. The fish were out of season and were therefore "unclean." On arrival at the police station to which they had been taken the fish were examined by one of the two policemen who had discovered them in the appellant's car and by a water bailiff who had been asked by the policemen to assist them. This examination was carried out in the presence of the second policeman. The appellant was in the police station at the time, but was not present at the inspection. According to the evidence of the witnesses who examined the fish, all of them were marked with large holdes (sic) and tears of the type made by cleeks or gaffs. The mouths revealed no signs of hook marks or signs of blood. Such marks are normally seen when fish of the size of these fish (10–16 lbs) are caught by rod and line, even on a small hook, although it is possible that a hook can be swallowed so that the mouth is not marked. The Sheriff accepted this evidence as establishing that important aspect of the case. At the beginning of the trial the appellant's agent submitted that since the fish, which were essential to the charge and were the best evidence, were not produced it was not competent for the prosecution to lead secondary evidence about them. He accordingly invited the Sheriff to dismiss the case there and then on that ground. We pause to point out that this was not the correct procedure. The correct procedure was to object at the appropriate time to the leading of evidence about the physical condition of the fish in their absence as productions. In any event the Sheriff repelled the submission and motion in hoc statu, and subsequently at the hearing on evidence repelled further submissions by the appellant's agent on the matter of the non-production of the fish on the ground of prejudice to the appellant.

It will be noted that question 1 of the questions in law submitted for the opinion of the Court does not reflect what should have been the question had the proper procedure been followed. If it had, the question would have been:

"In the circumstances was I correct in repelling the objection to the leading of secondary evidence about the physical condition of the fish?"

Be that as it may, we are of the opinion that the Sheriff's attitude towards the production or rather the non-production of the fish at the trial was correct. In rejecting the defence submission on the point she properly founded upon what Lord Justice-General Normand said in Maciver v. Mackenzie 1942 J.C. 51 about the exclusion of perishable goods from the best evidence rule and from being necessary productions, and what Lord Justice-General Clyde said in MacLeod v. Woodmuir Miners Welfare Society Social Club 1961 J.C. 5 about the competency of leading secondary evidence where it was not reasonably practicable and convenient to lead primary evidence. Whether goods are perishable or whether it is reasonably practicable and convenient to retain them as primary evidence in the form of a production will depend on the circumstances and evidence in each particular case. In the present case the Sheriff was satisfied that the fish were perishable and that it was not reasonably practicable and convenient to retain them. Moreover section 20 of the Act of 1951 provides that where under the Act a fish seized is liable to forfeiture the person by whom it is seized may sell it, and the net proceeds of the sale shall be liable to forfeiture in the same manner as the fish sold. This authorises the fish to be sold before it would otherwise be produced in Court, and by necessary inference opens the door to the leading of secondary evidence about the fish. In our view there was no validity in this objection. A subsidiary argument namely that esto the fish could not be produced it was incumbent on the prosecution to produce photographs of them and labels is equally untenable. These in themselves would be secondary evidence, and if secondary evidence is permissible to prove an essential fact it is for the party seeking to prove the fact to decide what form of secondary evidence will be tendered and for the Court to decide whether that evidence establishes it. The production of photographs and labels may strengthen the oral secondary evidence, but is not a prerequisite of that evidence.

This brings us to the last point which was debated before us, namely, whether the fish should have been retained for inspection by an expert witness on behalf of the appellant before being destroyed. It is incorporated in question 2. This is the one point in the case which has given us concern. On this point the Sheriff in her note says:

"The submission that the fish should have been preserved for examination by an expert witness on behalf of the appellant would have been relevant only if the appellant had indicated to the police when the fish were impounded that he wanted them to be held for such inspection. No such request was made at the time, nor did the appellant ask that he should be allowed to inspect them himself. Of course, since the fish had been in his possession prior to being seized by the police it is clear that he had ample opportunity to examine them had he wished to do so."

The relevant finding is finding 17. The appellant's argument was this. Esto it was in order to destroy the fish and subsequently lead secondary evidence about their physical condition at the trial, since witnesses for the prosecution had been afforded (and in fact had taken advantage of) the opportunity to examine the physical condition of the fish for relevant evidence equity demanded that the defence should have been given the same opportunity. This entailed that before the fish were destroyed the appellant should have been informed by the police of the intention to destroy them and if he signified a wish to have them examined by himself or by an expert a reasonable time should have been allowed to elapse to enable such a wish to be fulfilled. The Sheriff had taken the view that the question of preserving the fish for examination by an expert on behalf of an accused was only relevant if the accused informed the police when the fish were impounded that he wanted them to be preserved for such a purpose. In the instant case the Sheriff had found in fact that no such request was made by the appellant, and she had accordingly rejected the submission that prejudice had been suffered by the appellant. The Sheriff was wrong in law in ruling that the onus was on the appellant to inform the authorities of his wish and to ask for a postponement of the disposal of the fish until an examination by him or on his behalf was made. On the contrary, the onus was on the authorities who had impounded the fish to inform an accused of the intention to dispose of them and to afford the accused a reasonable time before disposal to allow an examination to be made, if desired. This was a matter which went beyond the instant case and was one of general interest and importance. So ran the argument.

It seems almost unnecessary to propound that in the interests of justice and fair play the defence, whenever possible, should have the same opportunity as the prosecution to examine a material and possibly contentious production. The fact that such opportunity has not been afforded to the defence is not per se a ground for quashing a conviction. There may be a variety of reasons, some good some bad, why the opportunity was not provided. The production may have been lost or destroyed before the opportunity reasonably presented itself. It was said by the Advocate-depute that, even if the opportunity was available but was not presented, the only effect of this was possibly to affect the quality of the evidence of the prosecution witnesses who testified to the appearance of the production. In our opinion it goes further than that. It becomes a question whether prejudice was suffered. The questions then arise:

"Was there prejudice?"

and "If so, was it of such materiality as to cause such an injustice that the ensuing conviction falls to be quashed?" The materiality of the production will always be an important factor. It is impossible to lay down hard and fast rules to cover every possible case. Each case will depend on its own facts. In the present case from the Crown point of view the important feature of the production, namely the fish, was to establish that there were present on the fish or absent from the fish marks which would indicate beyond reasonable doubt that the fish had not been caught by rod and line. The prosecution led evidence, which was eventually fully accepted by the Sheriff, to the effect that there were significant marks present and significant marks absent which led to the conclusion that the fish had not been caught by rod and line. It is clear from the stated case that the police, in whose custody the fish were, offered no opportunity to the appellant to have the fish examined by himself or by an expert on his behalf before they were destroyed on the following day. There is nothing in the stated case to indicate that the appellant was informed by the police that the fish were going to be destroyed.

The Sheriff took the view that the obligation to provide an opportunity to the appellant to inspect the fish or have them inspected on his behalf by an expert would only arise if the appellant asked for it. If she was right, then no prejudice was suffered because the appellant did not ask for it. Provision is made in the Act for forfeiture of any fish seized, and persons seizing the fish are authorised to sell it, the net proceeds of the sale being used in lieu of the fish for forfeiture. The Act specifies the three categories of persons who may seize the fish, but does not say that such persons have to warn the persons from whom the fish has been seized of their intention to sell it, or provide him with an opportunity to inspect it before it leaves their possession for sale. That, however, does not entitle us to ignore the canons of justice and fair play. Where it is reasonably practicable, as it was here, we are of the opinion that a person who has lawfully seized a fish and intends disposing of it one way or another should inform the person from whom it has been seized that the fish is going to be disposed of and that, before it is, he will have the opportunity of examining it or having it examined. Reasonable practicability will depend on the circumstances, which could include such considerations as the delay that would be occasioned by the request and the effect of such delay on the effective disposal of the fish. Here the appellant was provided with no such information or opportunity. The question of reasonable practicability did not therefore arise, but as the fish were going to be destroyed and not sold for consumption there was no obvious extreme urgency. The suggestion by the Advocate-depute that the information given to the appellant that he could have his solicitor present at the police station (an offer which incidentally was not accepted) was an effective substitute is not a tenable one in the circumstances of this case.

We are accordingly of the opinion that the Sheriff applied the wrong test here, and what we conceive to be the correct procedure was not followed. That in itself, however, is not sufficient. It has to be established that the appellant suffered a material prejudice thereby before the conviction is quashed. The Sheriff has stated in her note, though not as a finding in fact, that as the fish had been in the appellant's possession prior to being seized by the police, he had ample opportunity to examine them if he wished to do so. His own story was disbelieved by the Sheriff, and in our view it was so incredible that it would be unsafe to latch on to any part of it that was not established aliunde or was not disputed. Twenty-six salmon or sea-trout weighing 10–16 lbs were stacked in the back of his car. He was alone in the car. It is a reasonable inference that he stacked them there or was a party to that operation. He is an expert fisherman. For the past three years he has held the British and World Fly-casting Championships. He is an instructor in the art, and has held classes on it in the Borders. In the course of a normal year he expects to catch between three and four hundred salmon and sea-trout. If he had the opportunity properly to examine the fish, he would have known what to look for since he was an expert. But the whole affair took place at night when it was dark, and while one might suspect that he had the opportunity to examine the fish before they were impounded, that cannot be assumed. In any event, because of his personal involvement he may well have wished to have the services of another expert if he had been certiorated of his right to have one before the fish were destroyed. This he was undoubtedly denied. Since the marks or absence of significant marks on the fish were crucial to establishing the Crown case, and we are informed by the Sheriff that the Crown witnesses who made the inspection were cross-examined at length and in detail about the physical appearance of the fish, we cannot say that the deprivation of the opportunity to have them examined before disposal by or on behalf of the appellant did not result in substantial prejudice to him. It may be that even if such an opportunity had been provided and evidence contradictory of the Crown case had been adduced, even from an independent expert, the Sheriff would have reached the same conclusion, but that is a matter of pure speculation and one which this Court is not entitled to take into account. We are accordingly of the opinion that for the reasons stated this conviction cannot stand and must be quashed. We reach this conclusion with regret because in our view the appellant's conduct that night reeked of suspicion. His exculpation derives not from his actions and evidence but from a mistake in procedure.

Since the evidential procedure went astray in the Court below, we feel that the questions in law can best be answered thus: questions 1 and 3 fall to be answered in the negative, and the matters raised in question 2 can best be answered by reference to the opinion which we have expressed intus.