Scottish High Court of Justiciary Decisons

STEVEN DAILLY v. PROCURATOR FISCAL, PAISLEY [1999] ScotHC 20 (26th January, 1999)

The appellant Steven Dailly was convicted of two assaults and a breach of the peace at the Sheriff Court in Paisley on 26 November 1998. He was sentenced to six months' imprisonment.

The present bill of suspension is brought in connection with problems that had arisen over defence witnesses. In particular, there were problems over a witness Elizabeth McIntyre, and another witness Thomas Dailly. It is not necessary to go into the somewhat complex history of events in any great detail; but matters had begun with a complaint in which the present complainer had been charged with two charges of assault and Thomas Dailly had been charged with a breach of the peace. Subsequently Thomas Dailly pled guilty to breach of the peace and a new complaint was taken against the present complainer, charging him not only with the two original assaults but also with breach of the peace apparently in the same circumstances as the breach of which Thomas Dailly was guilty.

The matter came to trial on 5 November 1998 and at that stage neither of these two witnesses had been cited. We were informed by counsel for the complainer that this was apparently due to oversight but it may be observed that in the case of Thomas Dailly there would in fact have been an explanation for not citing him in as much as he was a witness to the breach of the peace which had not previously been brought as a charge against the present complainer. There had been a history of non-appearance, however, in the case of Elizabeth McIntyre who had failed to appear on a previous occasion and counsel for the complainer accepted that she was someone who was clearly reluctant to attend. In the circumstances facing him on 5 November the sheriff was unwilling simply to adjourn the trial. The trial began and evidence was heard. However, equally, the sheriff had not simply refused an adjournment. He had indicated that he would be sympathetic if an adjournment was thereafter sought; and when it was sought he in fact granted an adjournment with a view to the witnesses possibly being found for a continued hearing subsequently.

The matter came out again on 26 November. By that time each of Thomas Dailly and Elizabeth McIntyre had been cited. Neither was present. It appears that the citation had not been effected personally. The witness McIntyre has apparently gone to England. So far as Thomas Dailly was concerned it was asserted that he was ill, he having apparently been in touch by telephone. The sheriff granted an adjournment until 2 o'clock that same day but by that time Thomas Dailly was still not there. It is submitted that the sheriff in then deciding to proceed with the trial, and proceeding to conviction, had been guilty of oppression. It was accepted that the decision of whether to grant an adjournment is a discretionary matter for the sheriff. Equally, a refusal to grant an adjournment may in principle be oppressive.

In the present situation it was submitted that the sheriff ought to have granted a further adjournment and that his failure to do so was oppressive taking into account a number of different considerations. By 26 November he had heard the crown evidence. He had heard the evidence of the complainer on charge 3 which was an assault charge. He knew that the defence on that charge was one of self-defence and he knew that Elizabeth McIntyre had been an eye-witness and indeed that apart from other crown witnesses she was the only available defence eye-witness. So far as Thomas Dailly was concerned he knew from the history of the matter that Thomas Dailly had been closely involved in connection with the breach of the peace. With that knowledge, it was submitted, and taking account of the interests of justice, an adjournment should have been allowed.

The sheriff plainly did take into account a number of matters. It is clear that he considered that these witnesses should have been personally cited. One cannot say in any all-embracing way what the circumstances are where personal citation should be effected. So far as Elizabeth McIntyre is concerned, however, with a history of not having appeared it seems plain that the sheriff was entitled to think that she should have been cited personally. So far as Thomas Dailly is concerned much is made of the fact that he had no history of non-appearance of the kind involved with Elizabeth McIntyre and that being so it was suggested that one could not expect him to have been cited personally. There was moreover the evidence that he was not simply missing but was allegedly ill. On the other hand, it has also to be recalled that the sheriff was well aware that he was in the middle of a trial which had already been adjourned from three weeks before, and that there had been an opportunity to effect personal service. He plainly took the view that in those circumstances and taking the matter as a whole Thomas Dailly as well as Elizabeth McIntyre should have been cited personally.

Such matters can always be seen as complex and difficult and in this case it is plain that there were a number of different issues involved. The fact remains that even at that juncture the sheriff gave a further opportunity for Thomas Dailly to be brought to court. There was no soul and conscience certificate, nor was Thomas Dailly brought, nor does any clear picture of his unfitness seem to have been given.

In the whole circumstances we find it impossible to say that the decision which he took that the trial must proceed was oppressive. There had plainly been attempts in a number of ways on the part of the Sheriff in relation to each of these witnesses to afford opportunities for bringing them and he came to the view in the end that it would not be appropriate to adjourn further. In doing that we are satisfied that he cannot be criticised as having exceeded the discretion vested in him.

In the whole circumstances therefore the bill is refused.