Lord Justice General
Appeal No: C775/96
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST SENTENCE
KENNETH ANTHONY PATON MILLS
HER MAJESTY'S ADVOCATE
Appellant: C. Shead; Gilfedder & McInnes
Respondent: P.H. Brodie, Q.C., A.D.; Crown Agent
23 February 1999
The appellant is Kenneth Anthony Paton Mills who was found guilty in the High Court at Edinburgh of two offences. The first was a charge of theft of a motor car. On that charge he appeared along with a co-accused James Reilly. The second charge narrated that he assaulted Constable John Pennycook, then in the execution of his duty, and drove a motor car at him and caused the car to strike him, that he drove the car at excessive speed and dragged Constable Pennycook along certain roads, attempted to dislodge him from the car and caused the car to skid at a certain junction whereby Constable Pennycook was thrown from the car across the road and against a wall, all to his injury and to the danger of his life; and the charge concluded by narrating that he committed the offence while he was on bail.
The trial judge imposed a sentence of eight years six months detention, six months of which he attributed to the fact that the appellant had been on bail at the time when he committed the offence.
The appellant appealed against the sentence, but on 9 June 1998 his counsel moved the court to allow supplementary grounds of appeal, against conviction, to be received. These grounds proceeded upon the basis that there was now available fresh evidence of relevance to the matter of conviction. In order to understand the argument about that evidence it is necessary to note the circumstances of the offence. We shall use the version given by the trial judge which proceeds, of course, on the basis that the jury convicted the appellant of the offence.
According to the version which the jury must have accepted, the appellant - who is a habitual car thief - and his co-accused, Reilly, stole a car from a residential street in the early hours of the morning. They were observed by a local resident who telephoned the police and, as a result, various officers went towards the locus. The first to arrive were Constable Pennycook and another officer who was driving the unmarked police vehicle in which they were both travelling. They came upon the stolen car, a Ford Escort, which was at that time stationary and facing towards them. They stopped, and Constable Pennycook left the police car, wearing uniform, and putting on his cap as he went. The appellant was in the driver's seat of the stolen car, with Reilly in the passenger seat. As Constable Pennycook approached the stolen car, the driver realised that he was a police officer and put the car in motion. He swung the vehicle towards Constable Pennycook and caused the driver's side wing to make contact with him. Constable Pennycook was knocked off balance and thought he was going to be run over, but succeeded in grabbing the partly-open driver's window. Instead of stopping at this point, the driver continued to accelerate at full power, dragging Constable Pennycook along at such speed that the soles of his boots melted. Constable Pennycook kept shouting at the driver to stop and that he was a police officer, but the response of the driver at one point was to wind the window further down in order to loosen his grip. After several hundred metres, the car approached a T-junction and the driver caused it to turn left at high speed with such force that Constable Pennycook was thrown across the road and collided with a wall. As a result his right collar bone was broken, he had a chip fracture in his right elbow, and he had extensive grazes and bruises. Other police officers pursued the stolen car and, although the driver and Reilly ran away from it, the appellant and Reilly were apprehended nearby shortly afterwards.
At his trial the appellant lodged a special defence of alibi and a notice of incrimination of Darren Beaumont as the driver of the car. The appellant himself gave evidence in support of his special defence. He said that he had stolen an Austin car earlier in the evening and that he had seen Reilly and Beaumont, who were friends of his. He gave an account of their activities together. He also admitted that, earlier that evening, he had been wearing a striped jumper, but he said that Beaumont had been wearing a jersey with dark blue and light blue stripes. The appellant said that, when he was in the Roseburn area, he had seen an unmarked car and had thought that it might contain police officers. He had therefore driven off to Westfield Avenue and left the car there. He had been walking back up from Westfield Avenue when he had been detained by the police. He also said that, while he was walking along, the Ford Escort came in the other direction and its wing-mirror struck him, causing him a minor injury. Constable Pennycook spoke to him having such an injury.
The appellant's co-accused Reilly did not give evidence. Beaumont was not listed as a Crown witness and, even though he incriminated him, the appellant did not call him as a defence witness. Accordingly, at no point in the trial was Beaumont called as a witness, nor was he brought into court by either party to be shown to the Crown witnesses when they gave evidence as to the identification of the appellant as the driver of the car.
In his ground of appeal the appellant submits that there was a miscarriage of justice by virtue of the existence of evidence not heard at the trial. The contention is that this new evidence would support the appellant's claim that the driver of the Escort at the relevant time was not the appellant, but Beaumont. Although there is no affidavit from Beaumont, the appellant annexed to his ground of appeal a copy letter from Beaumont to the appellant. That letter can be construed as containing an indication that Beaumont would admit that he was the driver. The appellant relies in particular, however, on evidence which he says would be given by his co-accused Reilly, Reilly's mother, Catherine Field Reilly, and a Laura Reid, who was apparently Beaumont's girlfriend at the relevant time. Affidavits from each of these potential witnesses are attached to his ground of appeal.
In his affidavit Reilly says that he was at all times aware that it was Beaumont rather than the appellant who was the driver of the car at the time of the assault. His mother says that she became aware that this was the position within a few days of the crime when she visited her son at Saughton Prison and he told her that Beaumont had been involved. Indeed she says that she met Beaumont and his girlfriend, Laura Reid, at the prison on that occasion, when they were apparently going to visit James Reilly. According to Mrs. Reilly, when she taxed Beaumont with it being unfair that the appellant should be convicted for what he had done, he merely laughed and said that he had not been called for it. She also says that, at about Christmas 1997, she discussed the matter with Beaumont who said that he was sorry for what he had done to the appellant and that he had just been scared to own up because he had not wanted to go to gaol. She also says that he subsequently again confirmed his involvement. The affidavit of Laura Reid is to the effect that on the day after the incident she spoke to Darren Beaumont who told her that he had "killed a bizzy". He had also said that he and Reilly had stolen a car, while the appellant remained in another (stolen) car. An off-duty police officer had seen the appellant and Reilly getting into the car and had grabbed the window through a gap. Beaumont had accelerated and had tried to shake the police officer off, but had eventually begun singing "Can you fly, bobby, fly?". Beaumont had said that he had eventually crashed the car and run away. Laura Reid also indicated that Beaumont and the appellant had swapped jumpers after the incident.
In general terms the motion for the appellant was that this evidence could form the basis for the court holding that there had been a miscarriage of justice in terms of Section 106(3) of the Criminal Procedure (Scotland) Act 1995. Section 106(3) provides inter alia:
"By an appeal under subsection (1) above a person may bring under review by the High Court any alleged miscarriage of justice, which may include such a miscarriage based on -
(a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings ...
(3A) Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not heard."
The terms of these provisions show that, before evidence can constitute the basis for the court holding that there has been a miscarriage of justice, there must be "a reasonable explanation of why it was not heard" at the original trial.
So far as the evidence of the co-accused is concerned, on behalf of the appellant, Mr. Shead simply argued that, because Reilly had been a co-accused who had not given evidence at the trial and who could not be compelled to give evidence, this was in itself a reasonable explanation of why the evidence in Reilly's affidavit had not been heard at the original trial. Prior to the hearing of the appeal the Advocate Depute had specifically said to Mr. Shead that the Crown accepted that this did indeed amount to "a reasonable explanation" within the terms of Section 106(3A). The Advocate Depute felt bound by that concession and invited the court to proceed on that basis and to hear the evidence of Reilly with a view to determining whether the absence of that evidence had given rise to a miscarriage of justice.
In view of the attitude of the Crown, we decided that we should indeed continue the appeal with a view to hearing the evidence of Reilly and a number of other witnesses in so far as their testimony might have a bearing on the credibility and reliability of Reilly's possible evidence that Beaumont, rather than the appellant, had been driving the car when Constable Pennycook was assaulted.
We think it right to record, however, that, in view of the concession made by the Advocate Depute, we heard no argument about the application of Section 106(3A) to the proposed evidence of a co-accused. The appellant's position all along appears to have been that Beaumont was the driver. Not only did the appellant incriminate Beaumont, but he gave evidence of having seen Beaumont driving the Ford Escort. One might therefore have expected that the appellant would have moved the court to separate the trials of Reilly and the appellant so that Reilly, who was a passenger in the Escort but was not charged with the assault, could have been called to give evidence. Mr. Shead did not know why this had not been done, but he submitted that, in any event, such motions are only rarely granted. These facts give rise to possible questions about the application of Section 106(3A) on which we express no view. We merely emphasise that our decision to hear Reilly's evidence should not be taken as indicating any view as to whether the Crown concession was rightly made in this case.
In the course of his helpful submissions about the evidence of the other witnesses, Mr. Shead accepted that counsel who had represented the appellant at his trial had decided, as a matter of tactics - or perhaps even strategy - at the trial, not to lead the evidence of Beaumont and not to bring him into court and show him to the Crown witnesses who were identifying the appellant as the driver of the car. Mr. Shead suggested that it probably seemed unlikely that Beaumont, if led as a witness, would have admitted driving the car and indeed he might well have denied it. In addition, Beaumont was very different in appearance from the appellant and, even if he had been brought into court and shown to the police officers, they would perhaps have been unlikely to change their evidence. By leading Beaumont or even bringing him into court the appellant's position at trial might well therefore have been made worse. Mr. Shead indicated that counsel at the trial had probably been entitled to take the decisions which he did. The position had changed, however, because the evidence of Mrs. Reilly and Miss Reid in particular was now available. That tended to support the appellant's contention that Beaumont had been the driver; had that evidence been available to counsel conducting the trial, he might well have assessed the position differently and might have chosen to lead Beaumont as a witness.
It is important to remember what the content of the evidence of Mrs. Reilly and Miss Reid is in relation to this part of the appeal. They are not eye witnesses to the crime itself; they are witnesses as to statements which they say that they heard Beaumont make to the effect that he had been the driver of the car when Constable Pennycook was assaulted. Mr. Shead explained how he envisaged matters might be handled at any retrial. The defence could not lead Mrs. Reilly and Miss Reid to give evidence of Beaumont's alleged admissions without first leading Beaumont as a witness. He would therefore be called. Any one of three things might happen. First, Beaumont might admit that he was the driver. In that event there would be no need for the defence to lead the evidence of Mrs. Reilly or Miss Reid. Secondly, Beaumont might refuse to answer questions on the point in circumstances covered by either paragraph (d) or (e) of Section 259(2) of the Criminal Procedure (Scotland) Act 1995. The evidence of Mrs. Reilly and Miss Reid as to his alleged admissions would then be admissible in terms of Section 259(1). Thirdly, Beaumont might give evidence but deny that he was the driver. In that event, the evidence of Mrs. Reilly and Miss Reid would be admissible, but only as having a bearing on the credibility of Beaumont's evidence on this matter.
As we have explained, Mr. Shead accepted that at his trial counsel for the appellant had deliberately chosen not to lead the evidence of Beaumont and not to ask him whether he had been driving the car at the time of the assault on Constable Pennycook. Mr. Shead also accepted that the real purpose in seeking to lead the evidence of Mrs. Reilly and Miss Reid would be to introduce into any retrial hearsay evidence to the effect that Beaumont had admitted driving the car at the relevant time. But, before this could be done, the defence would need to lead the evidence of Beaumont who had been available to be called as a witness at the original trial but had not been called because of a deliberate decision by the appellant's counsel as to how the trial should be conducted. Mr. Shead submitted that, despite this difficulty, the court should hear the evidence of Mrs. Reilly and Miss Reid, having regard to the interests of justice according to the circumstances of this particular case (Campbell v. H.M. Advocate 1998 J.C. 130, 146 D - E).
We have come to the view that it would not be in the interests of justice to hear the evidence of Mrs. Reilly and Miss Reid in the circumstances of this case. We accept that, on the information available to us which was not challenged by the Crown, the existence of their evidence was not known and could not reasonably have been expected to be known to the appellant and his advisers. In these circumstances there is a reasonable explanation of why their evidence was not led. In deciding whether the existence of this evidence gives rise to a miscarriage of justice, we must, however, have regard to its "significance" and the significance of their evidence is intimately bound up with the potential evidence of the incriminee Beaumont. Indeed their evidence would not be admissible at any retrial unless the defence first called Beaumont as a witness: at any retrial their evidence would be led either to provide hearsay evidence of his previous statements in terms of Section 259(1) and (2)(d) or (e) or to challenge the credibility of any evidence by Beaumont to the effect that he had not been driving at the relevant time. The significance of their evidence and the key to its admissibility lie in what Beaumont might or might not say if called as a witness at any retrial.
Although he referred to the letter written by Beaumont to the appellant while he was in prison, Mr. Shead did not submit that the apparent admission by Beaumont in this letter that he had been the driver could constitute evidence, the existence of which could found an appeal in terms of Section 106(3) of the 1995 Act. In Campbell, the Lord Justice Clerk referred to the decision of the English Court of Appeal in R. v. Shields and Patrick  Crim. L.R. 281 and added (at p. 147 A - B):
"In that case the court observed that it would seldom, if ever, be a reasonable explanation for not calling a witness that the risk of calling him was at the time considered too great and counsel advised that he should not be called. Accordingly, in my view, it would be difficult, if not impossible, for evidence to be admitted at the stage of an appeal if a tactical decision was taken not to adduce it at the trial."
See also the comments of Lord Sutherland (at p. 176 F - H). These observations show that where, as here, the defence decided for tactical reasons, not to lead the evidence of Beaumont at the original trial, it would be difficult, if not impossible, to admit his evidence at the stage of an appeal. This limit on an accused's room for manoeuvre at the appeal stage is not arbitrary but is, rather, a concomitant of the wide discretion enjoyed by an accused and his advisers as to how his defence should be deployed at his trial. An accused person who is served with an indictment receives a list of the witnesses against him. He and his advisers have the opportunity to investigate the case, to precognosce potential witnesses for the Crown and for the defence and then to decide in general how his case can best be presented and in particular what witnesses are to be led. Inevitably these decisions may be complex and may involve an assessment of the potential benefits and potential disadvantages of one course or another. The pros and cons may have to be constantly reassessed in the light of the evidence as the trial proceeds. But, for better or for worse, these decisions shape the trial and the evidence which the jury hear and on which they decide the case. The verdict is intended, wherever possible, to be final. That is in the interests both of the public and of the accused. It follows that an accused person and his advisers cannot decide, for strategic or tactical reasons, not to lead a particular witness and then, when the accused is convicted, ask this court to order a new trial so that he can adopt a different strategy or different tactics in the hope of achieving an acquittal at the new trial.
Since the appellant and his advisers deliberately decided not to call Beaumont as a witness, we are satisfied that evidence in an affidavit by him as to his involvement in the offence could not have met the test in Section 106(3) and (3A). The existence of his potential direct evidence on that matter could therefore not have been a basis for the court setting aside the verdict of the jury. Equally, in these circumstances, we are satisfied that the existence of the potential indirect evidence of Mrs. Reilly and Miss Reid as to statements by Beaumont about his alleged involvement in the offence cannot be a basis for the court setting aside the verdict of the jury. What cannot be done directly cannot be done indirectly. For these reasons we refuse Mr. Shead's motion that we should hear the evidence of Mrs. Reilly and Miss Reid as to the alleged statements of Beaumont. We shall, however, hear their evidence insofar as it may have a bearing on the credibility of the evidence of the co-accused Reilly.