APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Osborne
Lord Nimmo Smith
Lord MacLean
|
[2006]
HCJAC 47
Appeal
No: XC1324/03
OPINION OF THE COURT
delivered by LORD OSBORNE
in
NOTE OF APPEAL
by
JOSEPH JAMES SAVAGE
McCLYMONT
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
______
|
Act: Shead; Lavery Smith, Glasgow
Alt: K. Stewart; Crown Agent
25 May 2006
[1] On 23, 24 and
27 October 2003, the appellant went to trial on a charge of assault
and robbery, having previously pled guilty to the other charge on the
indictment, a contravention of section 27(7) of the Criminal Procedure (Scotland) Act 1995. On 27 October 2003 he was found guilty of that charge,
under deletion of the words "and permanent disfigurement". The terms of the charge on which the
appellant was convicted were as follows:
"On 20 February 2002, at Farmeloan
Road, Rutherglen, Glasgow you did assault Thomas Parker ... and did present a
screwdriver or similar instrument at him, threaten to stab him, push him
against a wall, strike him on the body with said screwdriver or similar
instrument to his injury, seize hold of his taxi keys, demand his money box in
exchange for said keys, demand money from him and did rob him of a box and £35
or thereby of money."
Following conviction, on 22 December 2003 the appellant was sentenced to 12
months imprisonment on that charge.
[2] At the trial,
two witnesses were led by the Crown.
These were the complainer, Thomas Parker, and Police Sergeant James
Matthews. Two witnesses were led on
behalf of the appellant, the appellant himself and his girlfriend, Jan
Mitchell. A special defence of alibi had
been lodged on behalf of the appellant, which was to the effect that, at the
time of the alleged assault and robbery, he was within flat 3/2, 23 Farmeloan Road, Rutherglen, Glasgow.
The appellant lived at that address, along with his girlfriend and her
mother, whose flat it was. Miss Mitchell
was a prostitute who plied her trade in Glasgow city centre.
[3] The
complainer was a married man, with a family.
At the time of the offence he was a taxi driver. He testified that, in the early hours of 20
February 2002,
he had picked up Miss Mitchell in Glasgow city centre and taken her to her
home in Farmeloan Road.
He accepted that he had known that she was a prostitute and that he had
previously taken her home. According to
the complainer, Miss Mitchell had told him that she had no money and had asked
him to come up to her house in order to be paid. He had done so, taking with him his money box
from the taxi. In the house, Miss
Mitchell had taken him to a bedroom and had then come in and paid him. He had then left the flat and descended the stairs,
taking his money box with him. As he was
approaching the close door, a man armed with a small screwdriver had come into
the close, threatened to stab him and pushed him against the wall. In the course of a struggle, he had been
struck on the body with the screwdriver, sustaining an injury. He had also dropped his taxi keys, which his
attacker had picked up. His attacker had
demanded that he hand over his money box in return for the keys and, fearing
the loss of his taxi more than the loss of his money, he had done so. His attacker had then left the close and run
off. The complainer had driven to
Rutherglen Police Office, which was very close by, and had told the officer
there what had happened. This officer
had left the police office with him and the two of them had headed back to 23 Farmeloan Road in a police car. As they were approaching this address, the
complainer's attacker had come around the corner of the building, carrying the
complainer's money box, and had gone up to and entered the close at No. 23. The complainer and the police officer had
made their way to the close door. As
they opened the door, the police officer had passed the complainer and had gone
up the stairs after the complainer's attacker.
Behind the door, the complainer's money box and money had been found lying
scattered on the floor. The complainer
had followed the officer upstairs. The
front door of Miss Mitchell's flat had been open, and through the door he had
been able to see the person who had attacked and robbed him sitting on a
settee. In relation to identification,
the complainer positively identified the appellant in court as his
attacker. He positively identified Crown
Label 1 as the jacket worn by his attacker.
He identified Crown Label 2 as his money box.
[4] In
cross-examination it was put to the complainer that, far from going to Miss
Mitchell's flat to obtain payment of her taxi fare, he had gone to have sex
with her. He was asked why Miss Mitchell
could not have paid him from her night's earnings, and, in any event, why he
had required to spend some time in a bedroom. It was also put to the complainer that he and
Miss Mitchell had had previous sexual encounters. These matters the complainer denied. In relation to the assault and robbery, it
was put to him that he was mistaken in identifying the appellant as the person
who had carried out any assault and robbery of which he had been the
victim. Questions affecting the
reliability of his identification were put to him.
[5] Police
Sergeant James Matthews testified that he had been on duty at Rutherglen Police
Office when the complainer had appeared in the office. He had complained of having been assaulted
and robbed. Sergeant Matthews and the
complainer had set out for 23 Farmeloan Road.
As they approached it, a man wearing Crown Label 1 and carrying Crown
Label 2 had reached the close door.
Sergeant Matthews identified the man as the appellant. Inside the close door the money box and money
had been found lying on the floor.
Sergeant Matthews had heard the sound of someone running upstairs. He had gone up the stairs after them. The only flat with a light on had been the
one which turned out to be Miss Mitchell's.
Inside the flat, he had found the appellant. He had also found Crown Label 1 partially
under a bed. In cross-examination, it
was suggested that Sergeant Matthews was mistaken in his identification of the
appellant, which suggestion the Sergeant rejected.
[6] The appellant
testified that he had been in Miss Mitchell's flat throughout. He had been in the flat when she had brought
home the complainer. He had understood
the complainer to be a client of hers.
He had seen the complainer at the open livingroom door, when Miss
Mitchell had stopped to speak to him as she and the complainer were making
their way to the bedroom. He had not
left the flat either before or after the complainer had gone. He accepted that Crown Label 1 was his but
said that Miss Mitchell had worn it that evening to go into town.
[7] Miss Mitchell
testified that she and the complainer had had a number of previous sexual
encounters and that, on the date in question, they had gone to the bedroom to
have sex. She also testified that the
complainer had been with her, at the open livingroom door, when she had stopped
to speak to the appellant. She also gave
evidence to the effect that the appellant had still been in the house when the
complainer left, and had remained in the house until the police came. She testified that she had been wearing Crown
Label 1 that night.
[8] During the
course of that trial, on the morning of Monday 27 October
2003, Mr.
Lavery on behalf of the appellant had moved the sheriff to desert the diet pro loco et tempore. He advised the sheriff that the procurator fiscal depute had shown him a statement which the complainer
had given to detective officers at 4.30 a.m. on 20
February 2002. That statement was in the following terms:
"I have previously given a statement
to the police which I want to change. I
originally told the uniform officers that I had dropped off an unknown
passenger in Farmeloan Road, Rutherglen. I actually know the passenger as Jan. I know she is a prostitute and I have picked
her up a couple of times in Glasgow and brought her home. Earlier on tonight I arranged to go up to her
house to spend some time with her in her room.
It was about twenty to four. I
left her house about ten minutes later.
As I was about to leave the close, a male with a dark padded anorak
suddenly shouted 'Gees yer fucking money or I'll stab you'. The rest of the story is a true account of
what happened. I only said what I did
because I didn't want anyone to know I was with the girl."
At the stage when this statement was shown to Mr. Lavery, the
complainer had already completed his evidence.
It appears that the procurator fiscal depute told Mr. Lavery that
she had been given the papers for the trial shortly before it commenced and had
not initially been aware of the existence of the statement. For that reason it had not been disclosed to
those acting for the appellant. It was
against that background that the sheriff was moved to desert the diet pro loco et tempore. Having heard argument on the matter the
sheriff declined to do so. Subsequently
the sheriff granted a motion made on behalf of the appellant under section
268(1) of the 1995 Act and allowed the complainer's statement, narrated above,
to be read to the jury, together with the terms of a Joint Minute in which the
making of the statement was the subject of agreement.
[9] The appellant
appeals against his conviction on grounds which are set out in the Note of
Appeal and also in certain additional grounds of appeal. A large part of the original grounds of
appeal consist in a description of the procedure in the trial which we have
described. The essence of the
appellant's complaint is embodied in the following paragraph:
"It is submitted that the sheriff
erred in law in refusing to desert the indictment pro loco et tempore. The defence were accordingly deprived of the
opportunity of demonstrating in no uncertain terms to the jury in a clear and
unambiguous fashion during cross-examination of the complainer that he had not
only lied to the police but that he had also lied to the jury in his
evidence. This clearly could have had a
major impact on his credibility and as such the appellant has suffered grave
prejudice which was not adequately dealt with by allowing the statement to be
read to the jury in a Joint Minute. It
must also be taken into account that the appellant was convicted by a majority
verdict."
In the additional grounds of appeal it is said:
"Separatim
it was the Crown's duty to disclose the statement to the defence in advance of
the trial or at least before he had given evidence. Had that been done it would have permitted
the defence to challenge the complainer in cross-examination as to the contents
of the statement. In any event the Crown
ought to have invited the court to exercise its power under section 263(5) of
the 1995 Act to allow the complainer to be recalled. In inviting the jury to convict, having
failed to disclose the statement at the proper time, the procurator fiscal was
acting in a way which was incompatible with the appellant's right to a fair
trial guaranteed by Article 6(1) of the Convention. Reference is made to section 57(2) of the
Scotland Act 1998. Separatim it was the court's duty to ensure that the appellant
received a fair trial at common law and under reference to Article 6(1) of the
Convention. To ensure that the trial was
fair in the present case the court should have directed that the witness be
recalled rather than follow the course referred to in the ground of appeal."
[10] When this
appeal came before us, the Advocate depute on behalf of the Crown stated that
the Crown did not intend to support the conviction. It was recognised that, at the trial, but
only at an advanced stage, the procurator fiscal depute had become aware of the
statement given by the complainer, which contradicted the evidence which he had
given in court. The Crown took the view
that on the basis of Holland v H.M. Advocate 2005 SLT 563 and Sinclair v H.M. Advocate 2005 SCCR 446 the failure to disclose the
statement to the defence had resulted in the defence being deprived of a proper
opportunity to prepare its case. The
credibility and reliability of the complainer were crucial in the trial. The statement which had not been disclosed at
an appropriate stage was of the first importance in relation to the issue of
the complainer's credibility. Given the
unfortunate circumstances which arose in the trial, the Crown considered that the
proper course would have been for the diet to have been deserted pro loco et tempore. A possible, but less satisfactory course
would have been for the complainer to have been recalled to the witness box in
terms of section 263(5) of the 1995 Act, although there would have inevitably
been uncertainty as to the effect of such a recall. It was not clear that the putting of the
statement to the complainer, after being recalled to the witness box, would
have had the same effect upon his demeanour as a witness as it would have done
had it been put to him in his evidence in the first instance. The element of surprise might well have been
lost.
[11] In all these
circumstances, we have reached the conclusion that the conviction of the
appellant on charge 1 in the indictment must be quashed. We consider that there was a most unfortunate
failure on the part of the Crown to disclose to the defence the existence of
the statement in question, with the result that the defence were not enabled to
prepare and properly conduct their defence.
In our view, the result was that the appellant did not receive a fair
trial. In that situation, the conviction
cannot stand. We think it appropriate to
observe that it is most regrettable that, apparently, the procurator fiscal depute
did not have sufficient opportunity, prior to the commencement of this trial,
to acquaint herself thoroughly with the contents of the papers which related to
it, with the result that she was not initially aware of the existence of the
statement in question. In consequence, it
was not disclosed until very late in the trial.
Plainly, every effort ought to be made to ensure that prosecutors are
afforded adequate time in which to prepare cases prior to trial.
