APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD SUTHERLAND
BILL OF SUSPENSION
MARTIN HARDIE LINDSAY
PROCURATOR FISCAL, PAISLEY
Complainer: C. Shead; Aitken Nairn
Respondent: F. Mulholland, A.D.; Crown Agent
25 May 1999
This is a Bill of Suspension on behalf of Martin Hardie Lindsay who was convicted on charges of assault, wilful damage and breach of the peace. The complainer seeks to suspend the convictions on the ground that the Sheriff wrongly refused a motion to adjourn the trial
The Sheriff in his report sets out the history of these proceedings and it is to be noted that at an intermediate diet there was one witness whom the defence thought they might wish to cite who was an M.O.D. policeman, but in fact nothing further came of that at any stage. On the morning of the trial the complainer's agent intimated a plea of not guilty and also said that because a witness who had been listed for the Crown was not available he might have a motion to adjourn at some point in the trial. The evidence was then led and the general background was that the complainer and the victim of the assault had been driving vehicles on the M8 motorway and over a lengthy period there was what was thought to be bad driving on the part of one or both involving the other. Eventually they came to a halt at some roadworks. At that stage what was said was that the complainer left his van, approached the other driver, shouted and swore at him, pulled him out of his car by the hair, punched him and struggled with him and damaged parts of his car.
The driver of the other car gave evidence in accordance with the narrative we have just given. The next two witnesses were brothers who had been working on the same contract as the driver and were in another car behind him. They gave direct evidence about what they had seen which corroborated the evidence of the driver. The Sheriff tells us the cross-examination of one of these brothers was very heated and he was examined at length based on the allegation that he would have been unable to witness any of the incident from where he had been sitting in the passenger seat of his car.
The only other witness was a police officer who told the court about an interview with the complainer and the statement which the complainer had made to him which was in the following terms:
"The traffic stopped and I got out the van. I was raging. Then I started shouting at him. The next thing we were struggling and fighting. He hit me first but I was defending myself."
At the end of the Crown case the complainer himself gave evidence. His evidence was much along the lines of the statement which he gave to the police, namely that he stopped his van to remonstrate with the other driver, had done so and was walking back to his van when the driver got out of his car and assaulted the complainer.
After the evidence of the accused the Sheriff was moved to adjourn the case, a motion which was opposed by the Crown, and it is this motion which it is said he should have granted in the exercise of his discretion.
There were three grounds for the motion.
The first was that a witness, a Mr Shields, was unavailable. He had not been cited for the defence. He was a witness who had originally been on the Crown list but the Crown had intimated that he was not going to be called. It appears that the defence solicitor had looked at the matter and had decided not to cite him as a witness because he and the present complainer were workmates and could not both be away from work at the same time as they covered the same areas of responsibility. The Sheriff was advised that the nature of the evidence to be given by Mr Shields was that the complainer had spoken to him about the incident shortly afterwards and that Mr Shields would be able to confirm the complainer's evidence about the incident as being the same as the evidence which the complainer gave in court.
The second ground for the motion was that there was an inconsistent statement by one of the Crown witnesses in relation to identification of the complainer and that this could be shown by reference to a statement which that witness had made to a police officer. Mr Shead on the complainer's behalf today has accepted that this matter was properly dealt with by a joint minute being entered into narrating that indeed that witness did give a statement to a police officer which was inconsistent with the evidence which he gave in the witness box.
The third matter was that, as the Sheriff puts it, he was asked to adjourn in order that inquiry could be made by the defence by reference to the regional council to obtain evidence of the layout of the locus. The layout of the locus was a material matter in respect that there was the dispute as to whether the two Crown witnesses in the car behind could have seen what happened.
The Sheriff's view was that the adjournment was being sought because the complainer's agents had failed properly to prepare the case. There was no doubt, obviously, that the witness Mr Shields could have been cited by the defence and certainly could have been asked to put in an appearance on the day of the trial. There is no suggestion that the witness had, in any way, refused to appear.
The Sheriff also points out that the complainer had set out his position clearly to the police officer twenty four hours after the incident in a statement which had not been challenged and the Court therefore already had before it what the position of the complainer had been at a very early stage after the incident. Accordingly, the Sheriff did not think that the evidence of the type sought to be elicited would have been of any great assistance. We would certainly concur in that view, and indeed it may well be that any such evidence sought to be led by the defence would not have been admissible evidence in any event being apparently designed to support a totally self-serving statement on the part of the complainer.
As far the inquiry of the roads authority is concerned, the Sheriff points out that the defence case was always likely to include the proposition that witnesses were unable to see the incident and that that had been the nature of an extensive cross-examination. Accordingly, it would have been expected that the defence would have made any inquiries of the road authority before the trial in order to establish the proposition which they were putting to the witnesses in cross-examination. In any event, as the Sheriff points out, there was evidence before him that the positioning of the temporary traffic lights had changed on a daily basis and therefore it was perhaps unlikely that any evidence from the roads authority would have been of any great assistance.
On the whole matter therefore, the Sheriff considered that there were insufficient grounds advanced for the motion for an adjournment. As the Sheriff points out he had already spent the day listening to the evidence which had been closely tested. Any adjournment would not have been to the following day but would have been to a date some weeks further on and, as the Sheriff says, inevitably any adjournment would result in his memory being less fresh.
Therefore, in the exercise of his discretion the Sheriff decided not to allow the adjournment which was sought.
Mr Shead, on the complainer's behalf today, has submitted that the Sheriff exercised his discretion wrongly. This was on the basis that the witness, Shields, would have given some important evidence to support the complainer's credibility and on the basis that a vital issue in the case was the layout of the roadworks and arising therefrom the question as to whether the Crown witnesses could have seen what occurred.
In our view the evidence to be given by Mr Shields does not appear to have been of any materiality whatever, if indeed admissible at all and, as far as the matter of the layout of the road is concerned, that is a matter which the defence could well have investigated before the trial started and in any event only related to the issue of the credibility primarily of one of the Crown witnesses who was the passenger in the car behind who might not have been able to see clearly all that happened in front of him.
On the whole matter, bearing in mind that it is a matter of discretion for the Sheriff to decide whether to grant an adjournment of this nature, we are satisfied that no grounds have been put forward to show that the Sheriff exercised his discretion wrongly or that we should interfere with the exercise of that discretion. In these circumstances we shall refuse to pass the bill.
One other matter that arises is that the Sheriff in his disposal of this matter placed the complainer on probation and imposed a compensation order of £200. It has been brought to our attention that this disposal is incompetent this not being one of the permitted combinations. In the circumstances what we propose to do is to quash the sentence which was imposed and remit the matter back to the Sheriff to sentence of new.