Scottish High Court of Justiciary Decisons

PETER THOMAS SMITH v. HER MAJESTY'S ADVOCATE [2001] ScotHC 5 (15th February, 2001)

[1] The appellant, Peter Thomas Smith, was indicted on two charges of indecent conduct, one relating to a niece and the other relating to a nephew. In each case, the charge alleged a course of conduct of a very serious nature, extending over periods of eight years and seven years respectively. The trial commenced at Kilmarnock High Court on 17 February 2000 and the appellant was convicted, by a majority verdict, on both charges on 15 March 2000, subject to certain deletions of which the most significant was the deletion of a charge of sodomy in relation to the male complainer. The ground of appeal is that by refusing defence motions to adjourn the trial diet to another sitting of the High Court the trial judge prejudiced the preparation and presentation of the appellant's defence, to the extent that a miscarriage of justice occurred.

[2] According to the narrative placed before us, counsel originally instructed to conduct the trial became unavailable and another counsel was instructed on 25 January 2000. That counsel held a consultation with the appellant and the instructing solicitor on 3 February 2000, but on 14 February 2000 the solicitor became aware that that counsel would be unable to act because of personal commitments. By that time, the solicitor was aware that the Crown intended to call the case for trial on 16 February and took steps to instruct another counsel. That counsel, who actually conducted the trial in the event, was instructed at about lunch time on 15 February 2000. On the morning of 16 February, he consulted briefly with the appellant and, taking the view that further time was required to prepare the defence, moved to adjourn the trial. The motion was opposed by the Crown. The trial judge decided to adjourn until the following day but indicated that he was not disposed to allow any further adjournment. Thereafter, the solicitor obtained a precognition from the male complainer, who normally resided in Canada and had not previously been precognosced. When that had been done, counsel consulted with the appellant from about 3.30 p.m. until about 5 p.m. On the following day, counsel renewed the motion for an adjournment. It appears that it was not made entirely explicit either at the time of the first adjournment motion or at the time of the second motion, whether what was sought was an adjournment to a later sitting or simply a longer period of adjournment but it was accepted that in substance what counsel had been seeking was an adjournment to a later sitting. The trial judge refused the motion for a further adjournment and the trial then proceeded.

[3] Both the grounds of appeal and the judge's report narrate in some detail the circumstances which were put before the court and the submissions which were made both at the first motion for an adjournment and at the second motion. There was, however, a considerable amount of common ground in the submissions which were made on the two occasions, and for the purposes of the appeal, it seems to us that we should focus on the position at the time of the second motion to adjourn. By that time, counsel had a precognition from the male complainer (although we were informed it was a hand written precognition which had to be gone over for counsel's benefit by the appellant's agent) and had also had the benefit of a full consultation with the appellant. The situation at the time of the second motion, therefore, was materially different from that at the time of the first motion and it appears to us that it is the decision to refuse the motion made on 17 February that is important for the present purpose.

[4] In support of the motion, counsel made some general submissions and submissions on three particular matters. Generally, counsel submitted that the case was a serious, difficult and complex one involving detailed allegations covering a long period of time and that proper preparation required sufficient time to be allowed to assimilate material, some of which was fragmentary and complex. Specifically, counsel made three points. Firstly he submitted that there were six other nephews and nieces of the accused apart from the two complainers. These children had spent time in the appellant's company and it appeared that nothing untoward had happened with them. One of them had been precognosced but five had not and, while there was an indication that the children would be able to say that nothing had happened to them, counsel preferred that they should be precognosced. It was accepted that arrangements could be made for these children to attend during the trial. The second point concerned an educational psychologist, Stuart Beck, who had been at the male complainer's primary school and had spoken to him on a number of occasions and could say that there were no indications, and that nothing had been reported to suggest that he had been abused. Mr. Beck's whereabouts were known but he had not been cited because previous counsel had not advised that he should be. At that stage it was not known whether he would be available to give evidence during the sitting, although that could be checked. The third particular point was that there was information suggesting that the female complainer had been in contact with a person who had applied for criminal injuries compensation based on allegations of sexual abuse. Again it was accepted that inquiries could be made during the course of the trial to ascertain whether the relevant evidence could be made available.

[5] The Crown opposed the motion to adjourn. The advocate depute submitted that there was a difficulty in relation to the evidence of the male complainer who now lived in Canada. Arrangements had been made for him to attend at this sitting but, while there were no substantial concerns about his willingness to return, if necessary, practical difficulties existed in relation to his obtaining time off work to attend a trial in Scotland. The advocate depute explained that the male complainer would be an early witness and it was submitted that any material which required to be put to him in cross examination was already known to the defence. Otherwise, the advocate depute relied on arguments that adjournment would cause inconvenience and expense.

[6] The trial judge explains that in deciding to refuse the motion he had regard to the criteria set out in Renton & Brown at paragraph 18-20. He says that this was a case in which expense and inconvenience resulting from adjournment were not in doubt. Jurors had been brought to the court on a second day, in weather conditions which, as it happened, were difficult, including snow. Witnesses had been brought from the Dumfries area and, in one instance, from Canada. He says that the danger of loosing valuable, indeed vital, evidence existed in this case on the basis of the information that had been given about the position of the male complainer. This was not a case in which witnesses were missing despite efforts to make them available, nor one in which new and important facts had been discovered. The judge says that so far as the nephews and nieces were concerned, he was not persuaded that the arrangements which would be involved in having them precognosced and brought to court would require adjournment to another sitting, although it might be necessary to adjourn prior to leading defence evidence depending on the progress made. Similarly, any difficulty in contacting Mr. Beck did not persuade him that an adjournment to a different sitting was required. Again the matter relating to criminal injuries compensation was not new and the judge was not persuaded that difficulties in obtaining and making available the evidence required adjournment to a later sitting. The judge concludes by saying that

[7] The trial then proceeded. The judge's report narrates, inter alia, that the two complainers were cross-examined at length and in detail and that the matters put to the male complainer included the suggestion that Mr. Beck had not observed any sign of abuse. The female complainer accepted in cross-examination that she had had a relationship, as a result of which she became pregnant, with a person who had suffered sexual abuse and had made a claim for criminal injuries compensation in relation to that abuse. Evidence was in fact led from a number of nephews and nieces of the appellant and evidence was also led from their parents, all of which was to the general effect that there had been no indication of abuse in relation to these children. There was also evidence in relation to the question whether the appellant would have had the opportunity to carry out the acts of abuse libelled.

[8] In his submissions in the appeal, counsel for the appellant (who was counsel who appeared at the trial) placed the greatest weight on the general difficulty for counsel coming into a serious and complicated case such as this, at a late stage, in fully appreciating the issues which arose and the evidence which was available or was required, so as to feel confident of being in a proper position to defend the client properly and effectively. Proper preparation, he submitted, required counsel to absorb and reflect upon information that was available in order to be able properly to consider what further information should be obtained. Again, a proper opportunity for reflection was necessary when such further information became available. In the present case, there were complexities and difficulties, for example in relation to the places where the abuse was alleged to have occurred, and in relation to the other evidence available which might or might not cast light on the strength of the Crown case. It was not sufficient to say that these were matters which could be investigated and in relation to which information could be obtained during the course of the trial. The point of proper preparation was to be able to have available and reflect upon and use all the information necessary before the start of the trial. It was not satisfactory that counsel, while engaged with the problems of the trial itself, should also have to have in mind the question of further investigations and what results they might produce. The particular difficulties to which attention had been drawn before the trial judge might not in themselves individually be regarded as justifying adjournment but they were examples of the sort of difficulties and distractions which were not consistent with proper preparation and presentation of the case. The judge had given excessive weight to the factors of weather and inconvenience for jurors: these were factors but they were not weighty. Again there might be inconvenience in bringing the male complainer from Canada a second time, but he had been prepared to come and the Crown had not, in the end, suggested that it was likely to be impossible to make arrangements for him to do so. Again the judge had not given sufficient weight to factors favouring an adjournment such as the availability of a proper opportunity to prepare and the fact that the case had not previously been called. That might not be a positive reason for an adjournment, but it was a relevant factor. Again, the judge had not, so far as his report showed, explicitly taken into account the very serious nature of the charges which the appellant faced.

[9] The decision whether or not to grant an adjournment is one which depends upon the balancing of a number of factors. In the present case, the judge did, as his report shows, take account of all the factors which were brought to his attention. The only relevant factor which is not, perhaps, explicitly mentioned in his account of the process by which he reached his decision is the seriousness of the charges, but it is evident from the report taken as a whole that the judge did have the question of the seriousness of the charges in his mind as a material consideration both in relation to the defence and the prosecution submissions. As in any such case, the weight to be given to the different factors and the way in which they are balanced may differ between different judges. The judge comments that it seemed to him that the matters about which counsel was concerned were relatively straightforward and could be taken into account as the trial progressed. It is also of considerable importance that the judge made it clear that should there be any difficulty in practice beyond what had been anticipated then he would consider a motion for a further adjournment in the course of the trial. In the event, no such motion was made. We do not see any reason overall to disagree with the judge's assessment of the position and therefore, while we think that it might fairly be said that the judge took a strict view of the case, we do not think that this decision was apt to prejudice the defence case significantly or lead to a miscarriage of justice. It may be added that in fact all the difficulties anticipated were resolved as the trial proceeded and there is nothing to indicate that the appellant's defence was not fully presented in evidence and in submission to the jury. In these circumstances the appeal must be refused.