Scottish High Court of Justiciary Decisons

RYAN MUIR v. PROCURATOR FISCAL, LANARK [2001] ScotHC 112 (21st November, 2001)

[1] On 7 June 2000 the appellant was convicted after trial of two charges on summary complaint. The first charge was one of assault by repeatedly punching the complainer, who was an Asian shopkeeper, the offence being racially aggravated. The second charge was a contravention of section 50A(1)(b) of the Criminal Law (Consolidation)(Scotland) Act 1995 and involved the same complainer. The offences were committed on the same occasion on 12 February 2000 in shop premises at Kirkmuirhill.

[2] The sole ground of appeal argued before us was that there is now significant evidence in existence that was not available at the trial, that there is a reasonable explanation as to why that evidence was not heard at the trial and that, in the absence of that evidence, there has been a miscarriage of justice.

[3] In the stated case the sheriff has set out the evidence that was led for the Crown and for the defence. It is apparent from that evidence that the shop premises are of a relatively simple kind. Looking from the doorway of the shop a counter ran some 20-23 feet down one side, behind which was the serving area, and on the opposite side was a row of fridges. There was a payphone on the counter near a gap in the counter which gave access to the serving area. On the day in question two Asian brothers were working in the premises.

[4] It is clear from the stated case that a very material issue at the trial concerned the credibility and reliability of the evidence given before the sheriff. The two Asian brothers, who gave evidence for the Crown, stated that the only person, other than themselves, present in the shop at the time of the offences was the appellant. The complainer was on the customer side of the counter when he was attacked by the appellant. His brother was on the serving side and remained there throughout the incident. They denied suggestions that a teenager named David McLean was in the premises and using the payphone at the material time or that the appellant had merely looked into the shop and whistled to attract the attention of McLean and that the complainer had then come from the serving side of the counter and attacked the appellant. On the other hand, the appellant gave evidence that he had entered the shop no more than 2 feet, shouted and whistled on McLean who was using the phone at the time, whereupon someone ran from behind the counter and punched him. He had been attacked by both shopkeepers and had only responded in self-defence. McLean stated that he was a friend of the appellant and they had been at school together. He had gone to the shop. He was using the phone. There was no one else in the shop other than the two Asian shopkeepers. He heard a whistle and one of the shopkeepers ran out from behind the counter. The other shopkeeper was there as well. They had attacked the appellant. The incident had happened just inside the door. He had pulled one of the two shopkeepers off the appellant while the other one ran away. He and the appellant had then walked out of the shop.

[5] It is plain from this narration of the evidence that a very important issue in the case related to the number of persons in the shop at the time of the incident. At the end of the day the sheriff, on the evidence led before him, determined that, as a matter of fact, the only person in the shop at the time of the incident, other than the shopkeepers, was the appellant. In his note the sheriff states that during the trial "no mention was made by the appellant or David McLean of the existence of any other potential witness who viewed their account of the incident".

[6] The additional evidence now offered is contained in an affidavit dated 13 October 2000 from a young woman named Kerry Ann McNeill. She is about the same age as the appellant and knows him from having been at the same school as him. She also states that she knows McLean, though she is not friendly with him. The thrust of her affidavit is that on an occasion in February 2000 she had entered the shop premises. McLean was already in the shop and was served before her. He then went to the phone. She had been standing behind him before he went to the phone. She was then served by one of the two Asian shopkeepers. This person was behind the counter. The other shopkeeper was standing at the gap in the counter. She states that she had been in the shop for a couple of minutes waiting to get served when the appellant opened the door and shouted at McLean. She then describes an incident in which one shopkeeper grabbed and pushed the appellant out of the door, after which the door was closed. She remained in the shop continuing to be served by the other shopkeeper. She had then walked out of the shop and had seen the appellant and the other Asian shopkeeper outside the shop. She explains that she had only learnt that criminal proceedings had been taken against the appellant and of his conviction after the trial had taken place.

[7] For the appellant, Mr. Kennedy recognised that the first matter to be addressed was whether he could satisfy the court in terms of section 175 (5) and (5A) that there was a reasonable explanation of why this evidence, which had not been heard at the original proceedings, was not so heard. The only explanation tendered, other than that the witness had not come forward until after the trial, was an assertion by Mr. Kennedy that the appellant did not know that the witness was present in the shop.

We find it impossible to accept this assertion as any form of reasonable explanation for the absence of McNeill's evidence at the trial. It was unaccompanied by any other information in the shape of an affidavit from the appellant or from McLean explaining how either could possibly have been ignorant of the presence of McNeill as a customer in the premises at the time of the incident, and thus have given the evidence that he did before the sheriff. We assume that information to the same effect as their evidence in the trial appeared in any statements given by them before the trial to the defence solicitors, although no information of any kind was offered from the solicitors. However, it is to be borne in mind that it appears that the shop is in a small community and McNeill was apparently known to each of the appellant and McLean. Furthermore, the evidence about the shop premises was that they were of a simple form.

[8] In these circumstances, we consider that the appellant has failed to demonstrate that there is an explanation which could satisfy the condition for the admission of fresh evidence in terms of section 175(5A) of the 1995 Act. We would only add that we were given no explanation as to what enquiries were in fact made about the presence of other customers in the shop at the material time by the solicitors acting for the appellant. There may be circumstances where such information is highly desirable and its general importance is not to be underestimated (see Barr v. HMA 1999 SCCR 13). While its absence has not made any critical difference in the present case, since we have proceeded upon the assumption stated above as to their state of knowledge prior to the trial, it would have been helpful to have been told of what was in fact known to them and the nature of the enquiries made on the topic, since both shopkeepers were apparently adamant that only the appellant was in the premises.

[9] There being no reasonable explanation advanced as to why the evidence of Kerry McNeill was not heard at the appellant's trial, we shall therefore answer the first question in the stated case in the negative. It therefore becomes unnecessary to address and answer the remaining questions.