Scottish High Court of Justiciary Decisons

SAMUEL FERGUSON BARR v. HER MAJESTY'S ADVOCATE [1998] ScotHC 5 (5th November, 1998)

On 26 March 1996 the appellant and his co-accused Garry Francis Smith were found guilty of a charge of assaulting Derek Mullen on 14 April 1995 within a caravan at the caravan site in Strachan Street, Bellshill to his severe injury, permanent disfigurement and permanent impairment. On 23 April 1996 he was sentenced to six years imprisonment.

A number of grounds of appeal against his conviction have been put forward, but the only one with which we are now concerned is that there was miscarriage of justice in respect of the existence and significance of the evidence of three persons which was not heard at the trial, namely John Gallagher, Mrs. Anna Gallagher and Walter Brunton. The court has been provided with affidavits sworn by each of these persons.

At the trial there was no dispute that Derek Mullen had been assaulted in the manner alleged in the charge. The issue for the jury was whether they were satisfied that the appellant had taken part in the assault. The Crown relied for this purpose on the evidence of the complainer and Margaret Dundas, who cohabited with him in the caravan. Each of them positively identified the appellant as an assailant. The appellant maintained a defence of alibi, in support of which he gave evidence.

The complainer gave evidence that he was in the caravan with Margaret Dundas and her father. After he heard a chapping on the window he looked out and saw two figures going past. Mr. Dundas opened the door and figures ran towards it. The complainer unsuccessfully tried to shut the door, and his thumb was ripped open by an object used by one of the persons outside. There were two figures there and another in the background. He said that one of the two figures was the appellant and the other was the co-accused. He then described the appellant and his co-accused taking part in an assault on him which involved his being struck on the head with bottles and repeatedly being punched and kicked. The credibility of the complainer's evidence was attacked on the ground that at the hospital to which he was taken he stated that he had been assaulted by three or four persons whom he did not name. It was suggested that his memory had been affected by the fact that he had been drinking. It was pointed out that there were a considerable number of bottles and cans strewn across the floor of the caravan.

The evidence of Margaret Dundas was that she had been in the caravan with the complainer and her three children. She went to bed about 11 p.m. She got up in the early hours of the morning and went to the refrigerator. Thereafter she heard a chapping at the window. She opened the curtains and saw the appellant and his co-accused, both of whom she named. They were laughing. (In cross-examination she said that she knew the appellant by name and by sight, but had not spoken to him before). She said there were a number of other persons on the pavement, but could not see their faces and did not know who they were. She heard the stairs being kicked away from the caravan. Her father who was in the caravan opened the door. She pulled him back and closed it again. The appellant then opened the door. The complainer got up to close it but did not succeed in doing so. The appellant cut his thumb. Then the door was flung right open. While the appellant was still standing at the door his co-accused threw a bottle into the caravan at the complainer. This shattered a light shade. Then the appellant entered the caravan holding a sharp object. She could see a blade. He took it across the complainer's face. His co-accused then entered the caravan and hit the complainer over the head with a bottle. He fell to the floor. The appellant and the co-accused then proceeded to kick him. The appellant said that the complainer had "stuck Lee Smith in". The co-accused said that he was a "dead man". A person standing outside the caravan said "Sam, get out". The assault then came to an end and the assailants departed. During her cross-examination it was put to Margaret Dundas that her recollection was mistaken. She was asked how well she knew the appellant. She reaffirmed that she knew that he was present, saying that the person who was standing outside the caravan had also said his name. She denied the suggestion which was put to her that the complainer had told her to name the appellant. It was taken from her that there were quite a lot of bottles and cans strewn around the floor of the caravan, and that the complainer, her father and John Gallagher had been drinking in the caravan. When it was put to her that they all had quite a lot to drink, she said that this applied to her father but not to the complainer. She was asked what her father and John Gallagher had been drinking. She said that Gallagher had left about 10 p.m. When she was asked whether she had something to drink she replied in the negative.

For the appellant Miss Scott founded on the contents of the affidavits to which we have already referred. They described the complainer and Margaret Dundas, who was referred to as "Tina", as having taken part in a drinking session in the nearby caravan of John Gallagher. When his wife returned from playing bingo about 9.30 p.m., the drinkers moved to the caravan occupied by the complainer and Margaret Dundas. The group included John Gallagher, Mrs. Gallagher's brother, Walter Brunton and John Gallagher's cousin, Jim Fraser. Miss Scott relied on these affidavits principally in three respects. Firstly, each of them referred to Margaret Dundas as having been very drunk. John Gallagher stated that when he left the caravan occupied by the complainer and Margaret Dundas between midnight and 1 a.m. he was extremely drunk and so was everyone else including Margaret Dundas. In the time that he was in her company she had a considerable amount to drink and was "blitzed out of her mind". Mrs. Gallagher described Margaret Dundas as coming over to her caravan not long after 2.15 a.m. In her affidavit she states that she "was steaming drunk and could hardly stand". Walter Brunton said that earlier in the evening Margaret Dundas was drinking as much as the men. In her own caravan she had her full share of the drink, and he was in no doubt whatsoever that she was very drunk by the time he left about 12.15 a.m. Secondly, Miss Scott relied on a description which Mrs. Gallagher gave of what she saw from her caravan in the early hours of the morning. At about 2 a.m. she heard voices outside her caravan saying "Don't touch that gas bottle, there's weans in that van". She looked out of the window and saw the co-accused and "this other wee guy with a skinhead haircut". They then walked along the path at the side of her van. As they were passing the complainer's caravan she heard its door being opened. She then saw the complainer come out of his caravan and stand at the bottom of its stairs, bawling and shouting at the co-accused and the other man. They did not stop but kept on walking. The complainer then put his hand inside the caravan door and lifted a bottle which he threw at them. Margaret Dundas' father then came out of the caravan, and he and the complainer started to chase them. About five minutes later they returned and went into the caravan. This was about 2.15 a.m. It was shortly after this that Margaret Dundas came over to her caravan. She then returned to her own caravan. A couple of minutes later she saw that the co-accused, "and this other wee guy" had come back. They walked past the complainer's caravan to the top gate and left the caravan site. She did not see where they went. About half an hour later when she was in bed she heard Margaret Dundas shouting for help as the complainer had been assaulted. When she got out of bed she saw that Margaret Dundas had one leg out of her bedroom window and was holding on to one of her children. She ran outside to find out what was happening. She then went to have a look at the complainer who had plainly suffered serious injury. She could say for certain that she did not see the appellant at any time that night. The man who was with the co-accused certainly was not the appellant. Even his voice was different. In conjunction with this account Miss Scott drew our attention to the evidence which had been given at the trial by an independent witness, Mrs. Bonnie Faulds. She said that about 3 a.m. she had been out walking her dog. She saw two or three guys at the top end of the site, of which she had a clear view. They were hurrying towards a side gate. Before then she had not heard anything unusual. The men were about 15 yards away from her. They were all aged about 25 years. She knew the appellant and said that he was not one of them. She was positive about that. Thirdly, Miss Scott rel

Miss Scott submitted that the evidence which could be given by each of these witnesses had a material bearing on the credibility and reliability of the evidence of Margaret Dundas at the trial. She recognised that in terms of section 106(3A) of the Criminal Procedure (Scotland) Act 1995 it was for the appellant to show that there was a reasonable explanation of why the evidence of these witnesses was not heard at the trial. She emphasised that the court should take a broad and flexible approach in taking account of the circumstances of the particular case. As was pointed out by the Lord Justice Clerk in Campbell (T) v. H.M. Advocate 1998 S.C.C.R. 214 at page 242 much might depend on the steps which the appellant could reasonably be expected to have taken in the light of what was known at the time of the trial.

Miss Scott submitted that none of the three persons had been mentioned in any list of witnesses before or at the time of the trial. None of them had been precognosced by the defence. It appears that neither the Crown nor the defence thought that any of them could offer evidence of any significance.

It was true, she accepted, that John Gallagher was mentioned in a statement by the father of Margaret Dundas recorded in a police officer's notebook which was one of the productions at the trial. In that statement he said that he had been in the company of John Gallagher until the latter left at about 11 p.m. He also said that shortly before the police arrived Mrs. Gallagher had come on the scene. However, there was no suggestion that his daughter had been drinking, and in particular in the later part of the evening. Mr. Dundas was on the list of Crown witnesses but was not called to give evidence. The defence precognitions of the complainer, Margaret Dundas and her father did not mention the Gallaghers or Walter Brunton. There was also no mention of Margaret Dundas drinking. According to his precognition, her father, who was an alcoholic, had no recollection of the events surrounding the incident with which the charge was related. At the trial Margaret Dundas mentioned the name of John Gallagher early in her examination in chief, saying that he was a friend who was present until about 10 p.m., leaving herself, her father and the complainer. As we have already noted, she was cross-examined by counsel for the appellant as to the extent to which each of them, including John Gallagher, had been drinking. In these circumstances Miss Scott submitted that it was reasonable for the defence to think that neither John Gallagher nor his wife would be likely to be able to assist. Miss Scott said that the evidence which the three persons were able to give came to light after the trial when the appellant got in contact with John Gallagher and asked him to visit him in prison. The information which he was able to give led to enquiries being made of his wife and Walter Brunton.

We are not satisfied that Miss Scott's explanation of why the evidence of these three persons was not heard at the trial is sufficient to provide a "reasonable explanation" for the purposes of section 106(3A) of the 1995 Act as amended.

There is no doubt that prior to the trial the defence were aware that there had been a drinking session in the caravan occupied by the complainer and Margaret Dundas. That was clear at least from the information which had been given to the police by Mr. Dundas and the police photographs which showed that bottles and cans were strewn across the floor of the caravan. The defence plainly sought to attack the credibility and reliability of the complainer and Margaret Dundas. In the case of the complainer it was suggested that the quality of his evidence was impaired by his consumption of drink. The extent to which each of the occupants of the caravan, including Margaret Dundas, had taken drink was plainly of interest to the defence, as can be seen from the text of her cross-examination. The defence were aware of the existence of John Gallagher and that he had been in the company of Mr. Dundas. Thus, even assuming that it would be going too far to say that the defence might reasonably be expected to approach the Gallaghers merely because they were the occupiers of the adjoining caravan, the same cannot be said about the matter of drinking. We are not satisfied that the defence had no good reason to think that John Gallagher would be able to contribute any evidence of significance in regard to the drinking of those who had been in the caravan with him. Any evidence which he gave in regard to this matter would have been of use to their defence in their attack on the credibility of the two witnesses upon whom the Crown case depended. If he had been approached by the defence John Gallagher would presumably have given the information which he gave later in his affidavit, and this would have led those acting on behalf of the appellant to interview his wife and Walter Brunton in essentially the same way in which they came to be seen after the trial.

In these circumstances we consider that the appellant has failed to demonstrate that there is an explanation which could satisfy the condition for the admission of fresh evidence which is contained in section 106(3A) of the 1995 Act. In these circumstances the appellant's appeal is refused.

Before parting from this case we should observe that the explanation founded on in the hearing of the appeal was based largely on submissions made by Miss Scott as to what the solicitors acting for the appellant at the time of the trial could reasonably have been expected to pursue in the way of further inquiries, and in particular of John Gallagher. We were not provided with information which the solicitors acting for the appellant at the time could give as to what they did or did not know and any reason or reasons which they had for thinking that no further inquiries were called for. Such information may not be absolutely essential if a "reasonable explanation" is to be made out, but it plainly is highly desirable. While the absence of such information has not made a critical difference in the present case, its general importance should not be under-estimated.