Scottish High Court of Justiciary Decisons

ROBERT GRANT MACDONALD v. HER MAJESTY'S ADVOCATE [1998] ScotHC 29 (18th December, 1998)

The appellant was charged with shamelessly indecent conduct towards a number of children on various occasions between 1 June and 13 November 1996. For the purposes of this appeal, the details of the charges are not important: it is sufficient to say that they involved various forms of sexual misconduct towards the children. The appellant was eventually convicted, after trial, on 26 November 1997. Various amendments had been made to the indictment, and the jury made further deletions in returning their verdict. The effect of the verdict was that the appellant was convicted of various acts of indecency towards a child E.A.V. carried out in the presence of three other children, S.J.G., L.M.G. and L.G., and also of various acts of misconduct towards the child S.J.G. After obtaining reports, the sheriff remitted the appellant to the High Court for sentence and on 13 February 1998 he was sentenced to five years imprisonment.

In the course of the trial, three of the children, E.A.V., S.J.G. and L.M.G., were called as witnesses and each of them became very upset. In a very full and helpful report, the sheriff has set out precisely what occurred when the first of these children, E.A.V., a female child aged 8, was called. The sheriff narrates that she was admonished to tell the truth and answered some questions from the procurator fiscal and that, after about ten general questions, she said that she remembered the summer holidays in the previous year when she and S.J.G. had gone to play. She then broke down in tears and the trial was adjourned. After the adjournment, there were again some general questions during which the witness confirmed that she had been in a number of rooms in the appellant's house with S.J.G. The sheriff then narrates, from his notes, what occurred and it is necessary to quote the questions put by the procurator fiscal and the witness' answers or reactions as noted by the sheriff, in full:

Thereafter, the procurator fiscal, in the absence of the jury, made a motion under section 259 of the Criminal Procedure (Scotland) Act 1995, submitting that the witness's conduct should be regarded as a refusal to give evidence and that a statement previously given to a police officer should be introduced as evidence. After some discussion, the sheriff decided to grant the motion and the statement was, in due course, introduced. Very much the same procedure was followed in the case of the other two witnesses, S.J.G., a female child aged 8, and L.M.G. a male child also aged 8. In each case, the same motion was made and granted. The sheriff explains that he had considered the terms of section 259 and noted that the Concise Oxford dictionary defined the word "refuse" as "say or convey by action that one will not accept or submit to or give or grant or gratify or consent; not grant a request made by a person" and that he took the view that in all the circumstances of the case the witnesses should be considered as having refused to give evidence. The witnesses' previous statements were placed before the jury and formed the substance of the case against the appellant.

Section 259, so far as material, provides:

Section 259 is a relatively new provision and this appears to be the first case in which its application, at least in circumstances like the present, has been considered. From the sheriff's report, it appears that the argument before him was largely directed to the question of the effect of any evidence introduced under the section and the directions which might have to be given to the jury in regard to it. Initially, the discussion in the appeal was directed towards the same matters. In the course of argument, however, it became clear that the point which is significant in the present case depends upon the terms of sub-paragraph (e) of subsection 2. What the paragraph says is that the statement may be admitted where the witness refuses to give evidence, having been directed by the judge to do so.

It is helpful to have regard to the terms of the Scottish Law Commission Report which led to the introduction of these provisions. The relevant discussion begins in paragraph 5.54 in which the Commission drew attention to particular circumstances in which evidence would not be available to the court, namely, where the maker of a statement had been called as a witness and refused to be sworn or, having been sworn, refused to give evidence or successfully claimed the privilege against self incrimination. In the next paragraph, the Commission refer to the classes of persons who are entitled to refuse to give evidence and to those who, although competent and compellable, either refuse to be sworn or refuse to answer questions either generally or on a particular subject. In paragraph 5.57, the Commission discuss the case of a person who refuses to take the oath and point out that refusal to take the oath or affirm is a contempt of court, and that its effect is to deprive the court of the witness's evidence and continue:

The Commission then refer to the general safeguards which they propose and in paragraph 5.58 they continue:

It is thus clear that when the introduction of these provisions was being discussed, emphasis was placed on the importance of a direction by the judge to answer. That emphasis is reflected directly in the wording of the statutory provision. Section 259 involves a substantial innovation in the law of evidence in criminal cases and, in our view, the terms of the section require to be strictly observed. In the present case, it is clear from the sheriff's narration that the witnesses were not directed to answer the questions at all. There was not even an attempt to ask the child witnesses whether they had previously made statements to the police or to put the statements to the witnesses and ask if they were true, as would normally be done in the case of a witness who appeared to be reluctant to answer. Accordingly, once attention had been focused on this aspect of the statutory provisions, the advocate depute did not seriously dispute that the stage had not been reached, in the course of the trial in this case, at which it would have been appropriate to grant a motion under section 259. It follows that the evidence was not admissible and that the appeal must be allowed.

The discussion of section 259 before us was, in the circumstances, limited and it would not be appropriate to say any more about it than is necessary for the decision of this case. We would, however, make one brief observation. It is evident that applying the provisions of section 259 in the case of a child witness may be a matter of some delicacy and difficult cases may arise which can only be dealt with on their own circumstances. Any judge will naturally be reluctant to give a positive direction to answer questions to a young child witness who is showing signs of distress. It was expressly contemplated that section 259 might be applied in the case of a child witness who refused to give evidence: but, having regard to the terms of section 259 and the reasons given by the Scottish Law Commission for recommending that legislation along these lines should be introduced, necessary to keep in mind that the provision is directed to refusal rather than inability or difficulty in giving evidence.