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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> CONTINUED STATED CASE BY JUNE HYND v. PROCURATOR FISCAL, KILMARNOCK [2000] ScotHC 6 (19th January, 2000) URL: http://www.bailii.org/scot/cases/ScotHC/2000/6.html Cite as: [2000] ScotHC 6

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CONTINUED STATED CASE BY JUNE HYND v. PROCURATOR FISCAL, KILMARNOCK [2000] ScotHC 6 (19th January, 2000)

This is the appeal of June Hynd who was convicted of two charges of breach of the peace and assault by spitting. The ground of appeal which was allowed to be argued at second sift was whether the sheriff's assessment of the credibility and reliability of the witnesses upon whom he relied in order to find the charges proved would have been materially affected had he been made aware of matters not drawn to his attention during the trial but of which the appellant's solicitors have subsequently become aware, namely that during the course of the trial, at least four Crown witnesses, Elma Sim, Stephanie Sim, Stephanie Collins and Robert Donaghue returned to the witness room after giving evidence and discussed the case with other witnesses. The sheriff in his report to this court says that the matter raises a frequent and often inappropriate point taken by practitioners that witnesses have discussed the case, without the pleader concerned attempting to show that the witness or witnesses have, by speaking with other witnesses, tried to influence the evidence to be given by those other witnesses. "If what is said did take place, it does not from what is narrated reach the level of tampering with witnesses. It would not have affected my view of the evidence unless I had been shown that there had been an attempt to influence the testimony yet to be given by such witnesses."

We now have before us three affidavits from defence witnesses in the case, namely the appellant's father, her sister and her sister's friend. These affidavits, reading the matter short, speak to the fact that various witnesses who gave evidence on behalf of the Crown returned to the witness room after they had given evidence and spoke to other persons in the witness room. It appears clear that both Crown witnesses and defence witnesses were all in the same witness room and that some of the witnesses were not in the witness room at all but were in the passages outside, and some witnesses were coming and going. The high water mark of the affidavits is in relation to the appellant's father's affidavit who says that apart from giving evidence that various witnesses returned to the witness room he says that one of the child witnesses said or asked "what did they ask you" and "what did you say", and he distinctly recollects Elma Sim also asking this and also another child witness, Jacqueline Asbury. He says in his affidavit that the two children were parties to this conversation before they gave evidence and that being so, it is a little difficult to see why they should be asking "what did they ask you. The appellant's sister also speaks to the witnesses coming and going through the witness room particularly children running in and out of the witness room and she also heard children discussing the trial and she also heard the question "what were you asked". She does not remember who said it, but she says that they were all conferring with each other. The effect of this evidence is to show a distinct laxity in the arrangements at Kilmarnock Sheriff Court for the proper segregation of witnesses. The defence witnesses should not be in the same room as Crown witnesses and the witnesses should in fact be in the witness room and confined there and not wandering about the corridors. Furthermore, it should have been made clear to Crown witnesses or indeed to any defence witnesses that once they had given evidence, they should not return to the witness room. However, the fact that there were these lax arrangements does not necessary mean that a fair trial was not or could not have been achieved. As the sheriff points out, the test really is whether there is evidence to show tampering with witness and the fact that witnesses gave false evidence because they had been persuaded or influenced by others. The affidavits which have been produced do not, in our view, lead to such a conclusion, and as we have said at the highest they lead to the conclusion that there was some movement between the witnesses going in and out of the witness room and also some fairly unspecific conversations between the children which is only really to be expected. In our view the evidence contained in these affidavits would not give rise to a suspicion that this trial had not been fairly conducted and accordingly for that reason we cannot sustain that ground of appeal.

We should add that the appellant advanced before us today what in effect was a new ground of appeal namely, that certain tapes which she had in her possession and which were recordings of what happened at the material times of the various offences, showed quite clearly that she had not raised her voice and she had not committed the offences which were libelled against her. The difficulty about this matter however is that these tapes apparently were listened to by the appellant's solicitor who conducted the trial, and the appellant was advised by her solicitor that they need not be played. We do not know what is on these tapes and we do not know the reasons why the solicitor took the view that they should not form any part of the defence case. What is however clear is that in so far as it purports to be fresh evidence, it is not fresh evidence because the tapes were available at the time and were indeed considered by the appellant's legal advisers. In these circumstances there can be no question of these tapes being used as fresh evidence and no question of this court being able to consider the effect, if any, of them. On the whole matter therefore we are not satisfied that any grounds had been made out why these convictions should not stand and we shall refuse the appeal.

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