Scottish High Court of Justiciary Decisons

MOHAMMED ASLAM v. HER MAJESTY'S ADVOCATE [2000] ScotHC 8 (27th January, 2000)

The appellant is Mohammed Aslam who has been indicted in the Sheriff Court at Dumfries on a charge of fraud. He first appeared on petition on 9 November 1998 and so the twelve-month period for commencing his trial expired on 9 November 1999. On 3 November 1999, by virtue of his power under Section 65(3) the Sheriff extended that period by three months. The appellant has appealed against that decision.

At one time a Mr. Sohail Ahmad appeared as a co-accused but he pled guilty at an earlier stage to similar charges and was sentenced to six months imprisonment. On his release he declined to be precognosced and the Crown decided to precognosce him on oath. A warrant was granted for that purpose. In due course he was precognosced but indicated that he wanted nothing more to do with the matter. None the less the Crown included his name on their list of witnesses in the appellant's case and he was cited at his home address to attend the original trial diet on 27 August. Mr. Ahmad was cited by handing the citation to his wife, but she informed the police that he had gone to Pakistan on 13 July 1999 because his father was ill. He had bought a return ticket with a limit of three months and he intended to return, though she did not know when. She also told the police that her husband was difficult to contact, but that he telephoned her. He had led her to believe that he intended to attend the trial. The police officers repeatedly contacted Mrs. Ahmad who kept assuring them that her husband was in Pakistan but would return for the trial. Nearer the date of the trial, however, she told the police that her father-in-law was still ill and that her husband would not be able to return to attend the trial in August.

In those circumstances on the motion of the Crown the trial diet was postponed, first until 27 September and then until 2 November, which was past the end of the three-month limit on Mr. Ahmad's ticket. The postponement was on the basis that the witness would have returned by that time. Again the police kept in touch with Mrs. Ahmad who assured them that her husband would return. But on 27 October she said that he had telephoned to say that he was not going to come to court.

The Crown accordingly served a notice under Section 259 of the 1995 Act with a view to using the witness's statement, on the basis either that he was outside the United Kingdom or, if not, that he could not be found and all reasonable steps had been taken to find him (Section 259(2)(b) and (c)). At the trial diet the appellant's agent objected and the Sheriff decided that he would require to hear evidence in order to determine the point. He therefore adjourned the diet until the following day when evidence was led about the whereabouts of Mr. Ahmad. In the light of that evidence the Sheriff was not satisfied that Mr. Ahmad was abroad nor was he satisfied that his whereabouts were unknown and that the police had taken all reasonable steps to find him. The Sheriff therefore refused the Crown's application to use Mr. Ahmad's statement. It was in these circumstances that he granted the procurator fiscal's application to extend the twelve-month period.

The Sheriff explains that he disbelieved Mrs. Ahmad's evidence that her husband was abroad and about her telephone calls with him. The Sheriff did, however, accept that the police officers had believed what she had told them and had relied on it. The result had been that they had not taken any other steps to find the witness. The Sheriff acknowledged that it might be said that the police officers had been somewhat naive in accepting Mrs. Ahmad's word, especially in the light of the previous history of the case. He also accepted that they might have taken steps to check what she said, for example, by contacting the airlines to see whether he had actually travelled to Pakistan. None the less the Sheriff concluded that the Crown could not be faulted for any such possible failings on the part of the police and he granted the extension sought, which he regarded as reasonable.

The matter was essentially one for the exercise of the Sheriff's discretion. There is no doubt that the Crown showed cause for seeking the extension, viz. the absence of a necessary Crown witness. Even assuming that the police officers can be faulted for believing Mrs. Ahmad, it is plain that they acted in good faith and that they were indeed diligent in maintaining contact with her in order to ensure, so far as possible, that the position about her husband's attendance was known. On the Sheriff's findings, it can fairly be said that they were deliberately deceived by the witness's wife. Against that background, we consider that, particularly having regard to the substantial nature of the charge on the indictment, the Sheriff was fully entitled to exercise his discretion by granting the three-month extension.

In advancing the appeal before this court, Mr. Shead argued that the Sheriff had been wrong to hear evidence in relation to the Crown's application under Section 259 before the trial actually began. The proper time for doing so would have been when the Crown tried to introduce the hearsay evidence during the trial. If the Sheriff had not been satisfied at that stage, then the point would have been resolved once for all and the trial would have required to proceed on that basis. Here, instead, the Crown had first made their application under Section 259 and then, when that failed, they had sought an extension under Section 65(3). In this way at the adjourned trial diet they would be able to make a further application under Section 259, this time on the basis of further investigations and, perhaps, with better prospects of success. In effect the Crown had contrived a way to make their Section 259 application twice.

As Mr. Shead admitted, this point was not foreshadowed in his grounds of appeal and so the Sheriff has not dealt with it in his report. Indeed we understood that the point had not been focused in the proceedings before the Sheriff. In those circumstances we do not consider it proper to come to a determination on what really amounted to a challenge to the competency of the proceedings in the court below.

From what the Advocate Depute told us, however, it appeared that, when the procurator fiscal sought the extension of the twelve-month time-limit, it was with a view to making further efforts to trace the missing witness and to bring him to court to give evidence. It was not simply with a view to making a further application under Section 259. If, as seems at least possible, the witness will not have been traced and will not be present at the adjourned trial diet, it will be for the procurator fiscal to decide what steps to take. If the procurator fiscal in fact decides to ask the court to admit evidence under Section 259, then the points which Mr. Shead made in argument before us will be available to the defence agent in opposing any such motion. All that we have decided is that the Sheriff was justified in granting an extension of the Section 65(1) time-limit. If the procurator fiscal makes a motion for the Sheriff to admit evidence under Section 259, it will be for the Sheriff at that stage to decide whether to admit the evidence in the light of all the relevant circumstances.