APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
OPINION OF THE COURT
delivered by LORD MARNOCH
under section 74(1) of the Criminal Procedure (Scotland) Act 1995
HER MAJESTY'S ADVOCATE
Appellant: Hughes; Bruce Short, Dundee
Respondent: Doherty, Q.C., A.D.; Crown Agent
6 October 1999
This is an appeal against a decision taken at a First Diet to admit as hearsay evidence under section 259 of the Criminal Procedure (Scotland) Act 1995 a statement made to a police officer by one, Julia Elizabeth Lord or Baird (now deceased).
The procedure before the sheriff was made unduly complicated by the wording of the Minute lodged by the Crown under section 259(5) of the Criminal Procedure (Scotland) Act 1995, which was, we think, less than clear as to the intentions of the Crown, and also by the lodging by the Crown of a purported "certificate of authentication" (subsequently withdrawn as inept) which in turn led to a wholly inadequate notice of "challenge" on the part of the defence. That said, it was eventually made clear before us, first, that, whatever may be contained in the section 259(5) Minute, the intention of the Crown is that Police Constable Pamela Redford should be adduced at the trial as a Crown witness to speak to the statement said to have been made by the deceased Julia Baird and that the Police Constable's notebook would only be used as an aide-mémoire to that evidence; second, that there was no statutory requirement as to how or when a "challenge" to the admission of hearsay evidence should be mounted in terms of section 259(8) of the 1995 Act; and, third, that the challenge which was sought to be mounted by the defence in the present case was a challenge to the "competency" of the late Mrs Baird within the meaning of section 259(1)(c) of the same Act.
Reverting to the substance of the matter sought to be raised by the defence, the submission was that the late Mrs Baird was an alcoholic and, prior to her death, had apparently written a letter to the solicitors for the appellant saying that she was under the influence of alcohol at the time she gave the statement in question. All this, it was said, raised a question about her "competency" as a witness such as to make it incumbent upon the Crown to prove on a balance of probabilities, within the meaning of section 259(8) of the 1995 Act, that the late Mrs Baird would, at the time the statement was made, have been a "competent" witness as required by section 259(1)(c) of the Act. In support of this proposition, however, Mr Hughes, for the appellant, could do no more than give us a general reference to Walkers on Evidence at para. 350.
In our opinion the submission advanced by Mr Hughes, which was, we think, in substance the same as that advanced before the sheriff, is wholly misconceived. A witness, while perhaps unreliable, cannot be regarded as "incompetent" just because he or she is an alcoholic or under the influence of alcohol. On the contrary, leaving aside special cases such as children and spouses of accused persons, to be "incompetent" as a witness, a person must, in our view, be either permanently or temporarily insane or at least in such a condition as to be unable to understand the difference between truth and falsehood. Mr Hughes' submission went the length of maintaining that if, in any case, there was a challenge to the mental capacity of the maker of a statement (with nothing more being said), it would be for the Crown to prove that the maker was in fact "competent". That proposition overlooks the general presumption referred to by Walkers on Evidence at para. 59 that "human beings possess ordinary powers and faculties both physical and mental." In the absence of evidence to displace the presumption that an adult is sane and knows the difference between truth and falsehood, the presumption applies. Here the defence led no such evidence and the presumption accordingly applied. Moreover, as the sheriff held, the terms of the statement themselves tended to confirm that Mrs Baird would have been a competent witness when she made it. The appeal must accordingly be refused.