APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Hardie Lady Smith	[2012] HCJAC 155 XJ307/12   OPINION OF THE COURT   delivered by LORD CARLOWAY   in   STATED CASE   by   GARY DOCHERTY   Appellant;   against   PROCURATOR FISCAL, GREENOCK   Respondent: _____________

 

Appellant: A Ogg, Solicitor Advocate; Paterson Bell (for Keenan & Co, Greenock)

Respondent: Prentice, QC, AD; Crown Agent

 

 

27 July 2012

 

[1] On 12 January 2012, at a trial diet in Greenock Sheriff Court, the appellant was found guilty on charges of assaulting two women, CK and JC, by punching and kicking them on the head and body to their injury on 22 April 2011 at Cloch Road, Gourock. The facts found by the sheriff were that the women, who were under the influence of alcohol, had got into a taxi operated by the appellant at Gourock Railway Station, with a stated view of going to Wemyss Bay, and possibly onto Skelmorlie, depending upon the fare. The initial fare was agreed at £15. The taxi stopped abruptly in Cloch Road and the appellant told the women that the fare so far was £4. When the women declined to pay and tried to get out of the taxi, the appellant initially locked the doors and then, after sundry altercations, assaulted the women as libelled. When another car drove up to the incident, the appellant drove off. He did not report the incident either to his control room or to the police.

[2] The application for a Stated Case raised two issues: the first was relative to the credibility and reliability of the complainers; and the second was whether justice was seen to be done. The court will return to these matters in due course. However, it is important to observe that, when the case was presented to a first sift judge for leave to appeal, the judge commented as follows:

"I am persuaded to grant leave to appeal, although I cannot myself discern any arguable basis in the application read together with the learned sheriff's stated case. The reasons I am prepared to grant leave are (1) that I have a sense of unease about this conviction of a 38 year first offender for assaulting two women, by punching and kicking them on the head and body to their injury and (2) that the conviction is likely to have unusually serious repercussions for the appellant given his occupation as a taxi driver and the fact that the complainers were passengers in his taxi. A reasonable opportunity should be allowed for the appellant to have counsel review the matter."

 

[3] It is important to observe the terms of section 107(1) of the Criminal Procedure (Scotland) Act 1995 concerning the obligations on a first sift judge. These are that, if he considers that the documents presented disclose arguable grounds of appeal, he should grant leave to appeal and can make such comments in writing as he considers appropriate in that situation. On the other hand, in terms of section 107(1)(b), in any other case he should refuse leave to appeal and give his reasons for that in writing and thereafter grant a warrant for apprehension if that is necessary. It appears to this court that the sifting judge has misunderstood his obligations in terms of the statute when he was assessing whether leave to appeal ought to have been granted. If, as he commented, he could not find any arguable ground of appeal, it was his duty to refuse leave. However, leave was granted and the court will therefore consider the questions which are presented to it in the Stated Case.

[4] The first question is whether the sheriff had been entitled to accept the evidence of the two women as credible and reliable. The sheriff has explained his reasons for doing that. He thought that their evidence did not sound rehearsed; their accounts were far too detailed to be made up; and each had spoken to the assaults on each other. He rejected the appellant's account, which involved the denial of any physical contact with the women, and, in doing so, noted that the appellant had not informed his control or the police about the incident. As was ultimately accepted at the appeal hearing, and as it was bound to be, questions of credibility and reliability were matters primarily for the first instance court to resolve. In this case they have been resolved satisfactorily and adequate reasons have been given for the decision. Accordingly, the court considers that the first question should be answered in the affirmative.

[5] Turning to the second question of whether justice was seen to be done, the essential narrative was that, at about 12.55pm during the course of the trial, the sheriff had asked the defence agent whether he would be finished cross-examining the witness before lunch, which was normally scheduled for 1.00pm. On being told that he would not, the sheriff had said: "But you have already been cross-examining her for 45 minutes". On this basis, it was said that the appellant had formed the view that the sheriff had been impatient and unwilling to consider "further representations on his behalf and that he had closed his mind to the prospect that there might be other avenues to be legitimately pursued by the defence". The basic contention, in familiar terms, was that the informed impartial observer hearing these remarks would have considered that justice had not been seen to be done.

[6] So far as can be seen from the content of the Stated Case, the sheriff's remarks were entirely appropriate. This was a summary prosecution in which the competing accounts of the complainers and the appellant were stark. There is, of course, a right to a fair trial, but that does not carry with it a right to limitless cross-examination. On the contrary, a sheriff has a duty to control the length of cross-examination, where it strays into the unnecessary, irrelevant, harassing or repetitive in order to ensure that, not only the rights of the accused are protected, but also that the dignity of the witness is preserved. The sheriff has an obligation to promote the release of witnesses as soon as it is reasonably practicable, again consistent with the interests of justice, rather than delaying their presence in the court building unnecessarily. Indeed, in all these matters, agents and counsel have a duty to ensure that court time is, again consistent with the interests of justice, used efficiently in order to assist the court in reaching a just determination within a reasonable time.

[7] When, in a relatively straightforward summary trial, a witness has been examined or cross-examined for a prolonged period, a sheriff is entitled to enquire as to progress and, in an appropriate case, to comment on that and, where necessary, to place a time or other limit on further examination or cross. The sheriff in this case did not, in the event, place any constraints on the cross‑examination and it concluded without further intervention. The court considers that, in these circumstances, the informed impartial observer would have had no difficulty in observing that justice was done. Accordingly the second question will be answered in the affirmative and the appeal refused.

 

DL