Scottish High Court of Justiciary Decisons

TREVOR RUSH McCAFFERTY WRIGHT v. HER MAJESTY'S ADVOCATE [2000] ScotHC 52 (11th April, 2000)

The appellant is Trevor Rush McCafferty Wright who was convicted at Kilmarnock Sheriff Court of driving while disqualified and of driving without insurance on various roads in West Kilbride, Ardrossan and elsewhere in North Ayrshire, in contravention of Sections 103(1)(b) and 143(1) and (2) of the Road Traffic Act 1988. He appealed against his conviction and at the outset of the hearing of the appeal Mr. Sheldon explained that he intended to argue grounds 4 and 5 only. These related to an alleged failure on the part of his agent at the trial to challenge certain evidence and to adduce evidence relating to his special defence of alibi. These grounds were based on Anderson v. H. M. Advocate 1996 JC 29. As will become apparent, when Mr. Sheldon came to deploy his argument, it emerged that matters had to be viewed in a rather wider perspective.

We begin by noticing that on 14 December 1998 the appellant faced two indictments. On one of them he was charged along with three co-accused. The alleged offences on that indictment were theft by housebreaking at an address in Stanley Road, Saltcoats, theft of a motor car, registered number L476 GFV, from the same address, and a contravention of Section 49 of the Criminal Law Consolidation (Scotland) Act 1995. The date in the first two charges was 28 August 1998, while the date in the third charge was 29 August 1998. The car in question belonged to a Mrs. Margaret Scott who lived in the house where the housebreaking was alleged to have taken place. It was common ground at the hearing of the appeal that, despite the date in the housebreaking and theft charges, the break-in took place and her car was stolen in the early hours of Saturday 29 August. This is important because the car which the appellant was alleged to have been driving when he committed the road traffic offences was Mrs. Scott's car. It follows that the road traffic offences must actually have taken place in the early hours of Saturday 29 August after the car had been stolen. Again, this was common ground in the hearing before us. Despite this, in the separate indictment containing the road traffic charges which form the subject of this appeal, the date in both of the charges was 28 August.

We therefore start from the position that in drawing up the indictment containing the road traffic charges the Crown specified the wrong date. Had this been spotted by the procurator fiscal depute and the defence agent conducting the trial, it would not necessarily have been of any great materiality since, of course, the charges had a sufficient implied latitude in terms of paragraph 4(1) of Schedule 3 to the Criminal Procedure (Scotland) Act 1995 to allow the evidence to be led even though it related to 29 rather than to 28 August. But in fact the picture was complicated by the fact that, in response to the indictment containing the road traffic offences, the appellant lodged a special defence of alibi to the effect that he had been at an address in Aberdeen at the time when the offences were alleged to have been committed. Since the date in the charges was 28 August, the alibi appeared, at least, to relate to that date also.

At the trial the first witness for the Crown was a police officer, Constable Thomas, who gave evidence to the effect that he followed the car in question at about 5.15 a.m. on 29 August before it eventually stopped at the junction of Churchill Drive and Garton Drive in Ardrossan, when the occupants got out and ran off. He identified the appellant as the driver. The essential point to notice is that Constable Thomas's evidence about the date was correct: he had come on duty in the late evening of Friday 28 August and the events involving the car had occurred at about 5.15 a.m. on Saturday 29 August. He was not cross-examined on the date. The transcript suggests that neither the procurator fiscal depute nor the defence agent noticed the significance of his evidence.

At all events the next witness was Constable McDonagh. When leading his evidence the procurator fiscal depute put it to him that he had been on duty on 28 August and went on to ask whether he had assisted Constable Thomas in relation to stopping a vehicle. He confirmed that he had and went on to give evidence which corroborated Constable Thomas's evidence that the appellant had been driving the car in question. He was not asked in detail about the timing of the incident, although he said that the events had occurred when it was dark. In particular neither the procurator fiscal depute nor the defence agent in cross-examination put any questions which would have brought out that Constable McDonagh was actually speaking about events in the early hours of the Saturday morning. Indeed, it appears from what happened subsequently that by this time both of them may have been working on the assumption that the incident occurred on 28 August, i.e. in the early hours of the Friday morning.

The third police witness was Constable Millar to whom the procurator fiscal depute also put a leading question to the effect that it was correct that he had been on duty on 28 August. Again, the witness spoke to identifying the appellant as having been the driver and it is clear that he was speaking about the same occasion. For the reasons which we have given he must actually have been speaking to events in the early morning of 29 August, but that was not clarified by either the procurator fiscal depute or the defence agent.

The appellant gave evidence in his defence and in broad terms it was to the effect that he had gone to Aberdeen on 24 August and had remained there until he was arrested on 9 September. Since that was his position in evidence, it is plain that, had the jury placed any weight on his evidence, they would have acquitted him, irrespective of whether the road traffic offences occurred on 28 or 29 August. But by their verdict the jury showed that they must in fact have rejected the appellant's evidence. If that had been all that there was to the case, the misunderstanding about the date of the road traffic offences would not have been material and there would have been no basis for saying that a miscarriage of justice had occurred.

Unfortunately, however, the position is not so simple. The defence agent began by asking the appellant a number of questions about 28 August. The appellant confirmed that it was a Friday and the agent asked him whether he could remember where he had been on the Friday evening. The appellant proceeded to give evidence to the effect that he had gone to a night club with a number of other people, including a Donna Reilly and a Gheena Rheiner, both of whom were mentioned in his special defence. Indeed, as we understand it, this part of the appellant's evidence was in conformity with his special defence. But, once he had given that evidence, the following exchange occurred between the appellant and his agent:

Some clarification of the days of the week followed and then the agent resumed:

At this point the appellant proceeded to give evidence about what he and his companions had done in Aberdeen on the Thursday evening. This was different, of course, from his earlier evidence as to what he and his companions had done on the Friday evening.

Even by this stage in the proceedings it is apparent that the confusion in the mind of the appellant's agent had given rise to a risk that the jury might form the impression not only that the appellant had been wrong about the date when the incident was supposed to have occurred but also that he was prepared to change his alibi evidence and to tailor it to meet any alteration in the facts as they emerged at the trial. In addition there was a risk that it would appear that the appellant and his agent were in dispute about the true position on the "undisputed" evidence. In itself this was damaging since in truth it was the agent who was confused and the appellant who had correctly understood when the road traffic offences were supposed to have occurred. Indeed the appellant appears to have been the only participant in the trial who properly understood the position.

Worse was to follow. In cross-examining the appellant the procurator fiscal depute began with a number of questions designed to show that he could easily have travelled from Ardrossan to Aberdeen. In particular it was said that he could have been in Ardrossan on the Friday morning and have travelled to Aberdeen and gone out to the night club on the Friday night. The appellant agreed that he could have done so, but said that he had not in fact done so. Turning from that line of questioning the procurator fiscal depute then proceeded in this way:

In this passage the procurator fiscal was challenging the appellant's credibility on the basis that, when he initially gave evidence about what he did on the Friday evening, he "gave the wrong story". When the appellant replied that he had thought - rightly, of course - that they were talking about the Friday night into the Saturday, the procurator fiscal then referred to the evidence as showing that they were talking about the early hours of the Friday morning. On that erroneous basis, he then accused the appellant of forgetting the script.

We have no doubt that this misconceived passage in the cross-examination of the appellant gravely compounded the risk, which had already arisen from his examination-in-chief, of illegitimate damage being done to the appellant's credibility. Moreover, there was no re-examination and the jury must therefore have been left with the impression that the appellant's agent accepted the basis of the cross-examination.

We are thus faced with a situation where the Crown make a mistake in framing the charges against the appellant. That mistake leads to both the procurator fiscal depute and the appellant's agent conducting the trial on the wholly misconceived basis that the events in question took place on the Friday morning, when it was plain, even on the evidence of Constable Thomas, that they had occurred on the Saturday. In particular the appellant is questioned on that misconceived basis which is used to cast doubt on his credibility. Finally, in his charge to the jury the presiding sheriff makes no reference whatever to the matter and so nothing is done to correct the false impression for the jury. This is a case where the appellant's whole defence to the charges rested on his alibi and he was the only witness to give evidence in relation to the alibi. Doubtless, the jury might well have accepted the police officers' evidence and have rejected the appellant's evidence even if he had been examined in the ordinary way. But for reasons involving errors which began with the Crown and were continued by both the Crown and the defence, the appellant was badly prejudiced in giving his evidence to the jury. In these circumstances he did not receive the fair trial to which he was entitled and a miscarriage of justice occurred. We shall accordingly allow the appeal and quash the conviction.