Scottish High Court of Justiciary Decisons

DOUGLAS McMILLAN v. PROCURATOR FISCAL, LANARK [2001] ScotHC 32 (29th May, 2001)

[1] The appellant went to trial at the Sheriff Court at Lanark on a complaint libelling two charges, each a contravention of the Road Traffic Act 1988 as amended. At the conclusion of the Crown evidence, the procurator fiscal intimated that he was only seeking a conviction in respect of one of the charges. Evidence was thereafter led on behalf of the defence. On 30 August 1999 the appellant was convicted of the remaining charge, namely, that on 22 October 1998 at Braidwood Road, Crossford, he drove a motor car dangerously and caused the car to strike one David Hamilton on the legs, pushing him backwards and thereafter caused the car to strike Hamilton on the legs, causing him to lose his balance onto the bonnet of the car and thereafter fall onto the roadway.

[2] The sole ground of appeal that has been argued before us was that the sheriff had erred in law in refusing to allow the defence to lead in evidence a tape recording taken by the appellant of an interview between himself and police officers shortly after the events giving rise to the charge.

[3] The incident libelled took place at a point close to a narrow bridge on Braidwood Road near its junction with the A72 road. This part of the roadway was being resurfaced by local authority employees. The bridge and that part of the roadway was closed to vehicles while the operations were continuing. Signs to that effect were displayed. The appellant approached in his car past these signs towards that part of the roadway which was at the time being resurfaced. Hamilton was engaged in measuring up the work that had been done, using a true meter or trundle wheel. Another employee Gallagher was operating a road roller. The appellant was informed that he could not proceed further and that the bridge and roadway were closed to traffic. Subsequent to the incident libelled, the appellant drove across the newly laid tarmacadam and proceeded onto the A72 road to his home.

[4] The circumstances giving rise to the issue raised in the ground of appeal concern events which took place following the incident. Police officers had attended the locus in response to a call from Hamilton. While en route they were advised of a second call made by the appellant some five minutes after that of Hamilton. Having noted coherent and detailed statements at the locus from Hamilton and Gallagher, these officers had then attended at the appellant's home. When they arrived there, they advised the appellant that they were not there in connection with the appellant's complaint but in connection with a compliant against him.

[5] In his findings in fact, the sheriff records that the appellant was not happy about what the police officers had advised and that he became agitated, saying something to the effect that he had made the complaint and so the officers were taking the word of Hamilton and Gallagher against him. The sheriff further records certain facts in his findings in fact as follows:

We take note that this statement was treated by the police officers as something different from the procedure under section 172 of the 1988 Act and that it was "noted" by them.

[6] The sheriff in his findings in fact goes on to relate that on 1 November 1998 a retired police traffic officer, working on a self-employed basis as a traffic accident investigator, named Aird, examined the appellant's vehicle and in doing so took certain photographs and subsequently produced a report based on his examination and a letter of instruction containing information given by the appellant.

[7] In his Note to the stated case the sheriff sets out, among other matters, the circumstances giving rise to the issue raised in the ground of appeal. He explains that the first witness for the Crown was one of the police officers. In examination in chief this officer had not spoken to the detail of the statement taken as a complaint by the appellant, apparently in fairness to the appellant, and did not expand further on the matter. However he had said in chief and again in cross-examination that the complaint had been noted at the insistence of the appellant. The sheriff comments that it was therefore plain that the witness had readily conceded that there had been more in the interview than had emerged in his evidence in chief. It appears that early in cross-examination the appellant's solicitor sought to introduce the transcript of a tape recording which, it was said, had been taken covertly by the appellant of all or part of the interview. Objection to its admission was taken by the procurator fiscal on the basis that, being a covert and unauthorised recording taken without the knowledge or consent of the police officers, it was improper and unfair to the officers. The appellant's solicitor had replied that the purpose of introducing the transcript was, the sheriff tells us, "to show that there was more to the initial interview than had thus far emerged in evidence". The sheriff refused to allow the transcript to be lodged on the basis that it was "basically and inherently unfair and improper to allow into evidence a transcript of a covert tape recording" and that no particular or special reason was advanced "for a departure from basic rules of fairness and fair dealing". We need do little more than record that before us the advocate depute did not seek to dispute that that ruling was misconceived, since, although the recording had been covert, the rules of fairness and fair dealing were generally established to prevent oppression or conduct prejudicial to an accused on the part of the Crown. It could not be said to be prejudicial to the Crown to allow the transcript to be lodged standing the fact that the officer had himself given evidence that the appellant's statement had been noted.

[8] However that may be, the sheriff, in giving his ruling, made clear that his ruling would not restrict in any way relevant points which the appellant's solicitor wished to put to the officer in cross-examination. He goes on to say that he was not aware of points regarding the detail of the interview that remained unresolved or were the subject of disagreement during the remainder of the cross-examination.

[9] For the appellant Mr. Shead submitted that, in ruling as he did, the sheriff had prevented the appellant in putting forward what he termed a "mixed statement". This might have affected the conduct of the defence, including the decision as to whether the accused should himself give evidence. Furthermore, it prevented a matter affecting the credibility of the evidence led for the Crown being pursued and thereby precluded the introduction into evidence of material which could have led to the sheriff taking a different view of credibility at the end of the day. When pressed on the matter, this latter submission appeared to be addressed to a portion of the interview (the transcript of which was produced to us) in which the police officer had told the appellant that he had taken statements from two workmen at the locus but would be returning to see them again regarding the allegations which the appellant had made during the earlier course of the interview. The appellant had then asked the police officer how the workmen said that the windscreen of the car had got smashed and had been informed that the account was that it had got smashed as the workman was thrown up in the air and his hand had gone back and hit it. The appellant had remarked that that was a complete lot of nonsense. It was this information which apparently had been passed on to Mr. Aird and to which some part of his evidence was directed.

[10] In our opinion, these submissions are misconceived. We assume, without deciding the matter, that what was said in the later stages of the interview constituted a "mixed statement". The fact that the sheriff refused to allow the document containing the transcript of the interview to be lodged, did not inhibit the defence from asking questions about the statement or its terms. It appears that not only was this in fact done but that at the end of the day there was no real dispute about what had been said. Accordingly, we reject the first submission. As regards the second submission, the fact that Mr. Aird was told, prior to his examination, of the suggestion of a hand causing the damage to the windscreen, (the appellant's account being that Hamilton had come to the side of his car and with a two handed grip swung the true meter with a full swing, struck the windscreen a powerful blow with the meter and damaged it), did not affect his credibility. The sheriff merely observed that such information had been completely unhelpful and had simply served to mislead and misdirect Mr. Aird. But the defence were not precluded from using the information taken from the transcript in relation to their initial statements to the police officers, to challenge the credibility of the two workmen as to what took place at the time of the incident. Such a challenge could have included putting to them that their initial account to the police officers had been that the windscreen damage had been caused by a hand rather than, as the sheriff found as a fact, by a true meter, while still in Hamilton's hand, being propelled in the air and striking the windscreen.

[11] For these reasons we are satisfied that, notwithstanding the sheriff's ruling, the absence of the document containing the transcript did not prevent the defence fully exploring both matters in evidence, more particularly since the statement had been noted by the police officers. There was no miscarriage of justice. We would only add that the matters giving rise to the submissions for the appellant formed no part of the explanation tendered to the sheriff by the defence solicitor when seeking to justify his motion to have the document received in evidence.

[12] We have accordingly answered the questions posed in the stated case in the affirmative.