Scottish High Court of Justiciary Decisons


Mallin v. Procurator Fiscal [2002] ScotHC 101 (15 August 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kingarth Lord Bonomy	Appeal No: C635/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION by MAHBOOB DITTA Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

Appellant: Miss M E Scott, QC; Balfour & Manson

Respondent: Hanretty QC, AD; Crown Agent

14 August 2002

The conviction

1. In November 1999 the appellant was tried at Edinburgh Sheriff Court on the following charge:

"between 26 and 29 May 1998, both dates inclusive, [at addresses in Edinburgh], and by means of the public telephone system from your house at [address] or elsewhere in Edinburgh, with the intention of menacing [the complainer], c/o Lothian and Borders Police, Edinburgh, and putting him in a state of alarm and apprehension of injury to his reputation and of dismissal from his employment and for the purpose of extorting money from him you Mahboob Ditta did threaten to reveal to the police, the media, the General Medical Council, the British Medical Association and others that he had been involved in homosexual conduct with you unless he paid to you £30,000 and did thus attempt to extort said sum of money from him."

The jury convicted the appellant under deletion of the "£30,000" and the substitution of "a sum of money." He appeals against conviction on the grounds of defective representation by the defending solicitor and misdirection by the presiding sheriff.

The background

2. The complainer was a doctor. In the late 1980s and early 1990s he had been a member of a medical practice in Edinburgh. The appellant had been a patient of that practice although he was not registered as a patient of the complainer. It was agreed that there had been homosexual conduct between the appellant and the complainer in the past; but the circumstances in which that had occurred were in dispute.
3. According to the complainer, a homosexual incident occurred in 1991 at the appellant's home. On that occasion the complainer had made a house call during which he had examined the appellant who was complaining of back pain and abdominal pain. After the examination the appellant and the complainer engaged in a consensual homosexual act. The complainer gave evidence of a second incident some weeks later when the appellant consulted him at the surgery. On that occasion he said that there was an episode of mutual masturbation. He said that two further similar incidents occurred at the surgery thereafter. According to the appellant, the complainer had sexually abused him on two occasions in 1991, during a home visit and during a consultation at the surgery.
4. It was agreed that on Tuesday 26 May 1998 the appellant telephoned the office of the complainer, who was then working for [employer], and that they met later that day in the Northern Bar, Edinburgh. It was also agreed that that night the complainer went to the West End Police Station, Edinburgh and made a statement and that the police then set up a surveillance operation. It was agreed that on Wednesday 27 May 1998 there was a telephone conversation between the appellant and the complainer in which they agreed to meet on 29 May. On 27 May 1998 the appellant also telephoned the General Medical Council, the Criminal Injuries Compensation Board and two firms of solicitors.
5. On the morning of Friday 29 May 1998 the police recorded a telephone conversation between the appellant and the complainer during which they agreed to meet later that morning at the Northern Bar. The complainer went to that meeting fitted with recording equipment supplied to him by the police. The appellant and the complainer met at the bar and, after some conversation, left the bar and walked along Inverleith Row to the Royal Botanical Gardens.
6. At the gardens they went into the glass house. Their conversations at each of these places were recorded on the complainer's equipment and also on a dictaphone that the appellant was carrying. The conversation inside the glass house was overheard by Detective Sergeant Tough who was standing on a walkway a few feet above their heads.
7. The jury had before them transcripts of the taped conversations. The contents of these transcripts were incomplete and in some respects inaccurate; but it was not suggested by the defence at the trial that any of the prima facie incriminating statements of the appellant set out in those transcripts were inaccurate.
8. There was a sharp divergence between the Crown evidence and the defence evidence on the critical question of the import of the conversations between the complainer and the appellant and, in particular, their conversations on 29 May 1998. The complainer's account, in essence, was that the appellant attempted to extort money from him by making the threats libelled. The appellant's account was that the complainer initiated the first meeting on 26 May, that at that meeting he had asked the appellant if he was going to make a complaint to the General Medical Council and that he had voluntarily offered the appellant compensation of up to £30,000. According to the appellant, the later conversations were concerned with arranging the details of a contract by which the complainer would pay the compensation. The appellant taped the conversation in order to obtain evidence of an admission by the complainer that he had sexually abused the appellant and an apology. The evidence of Detective Sergeant Tough supported the complainer's evidence to some extent.
9. It is obvious that as between the appellant and the complainer, credibility was the all-important question for the jury. The main lines of attack on the credibility of the complainer were that he was not candid with the police at the outset; that he had delayed in disclosing the full facts to his employers, and that he had throughout concealed the whole truth.
10. In the course of his evidence the complainer was asked whether he had met the appellant before the first of the homosexual incidents. The complainer said that although, in 1991, the appellant was a patient of the practice, he was not a patient of the complainer. He could not recall the appellant's having consulted him before the occasion of the first homosexual incident. As far as he could recall, the first incident was the first time that he had ever met the appellant. He did not record the incident in the appellant's medical records; but he would have recorded that first visit in the appellant's medical records. The Crown and the defence had agreed that these need not be produced at the trial.

Ground of Appeal 1

11. The first ground of appeal is that new evidence in the form of the appellant's medical records significantly undermines the complainer's credibility in that the records show that the appellant was a patient of the complainer; that he had frequently met the complainer; that the complainer had referred him for specialist treatment on numerous occasions from about 1988 to 1992; and that there is no record of a home visit by the complainer in 1991. It is argued that the defence solicitor should have obtained and lodged the medical records before the trial, and that his failure to do so constituted defective representation (cf. Anderson v HM Adv, 1996 JC 29).
12. The court invited the defence solicitor to comment on this ground of appeal. In a letter dated 24 April 2002 he submitted a detailed and helpful account of the pre-trial preparations and an explanation for the decisions that he made. We need not quote the letter. Counsel for the appellant did not suggest that it was inaccurate on any question of fact. It is sufficient to say that in our opinion the letter presents a clear-minded and logical justification for the defence solicitor's actions and decisions. He tells us that the question of lodging the medical records was considered in the context of the factual issue as to the dates of the homosexual incidents. The records for 1988 - 1989 were recovered and examined. Having discussed the matter with the appellant and with his apparent agreement, the defence solicitor decided that they should not be produced. He considered that certain entries in the records could be used to discredit the appellant and therefore that to lodge them could be counter-productive. It is obvious, as we think counsel for the appellant accepted, that before the trial it was simply not foreseen that the complainer would say that he could not recall having met the appellant before the home visit in 1991. It is also significant that the appellant himself accepted that the date of the home visit was sometime in 1991 and that he did not contradict the complainer on the question of their having met before the first homosexual incident. Counsel for the appellant accepted that when the complainer gave that evidence, the appellant did not tell his solicitor there and then that he challenged it. Counsel told us that the appellant does not recall whether he raised that point with the defence solicitor at any stage.
13. We have seen the appellant's medical records. They show that the appellant consulted the complainer at his surgery on numerous occasions during the years 1988 to 1992 and that the complainer made a home visit to the appellant on 13 March 1988. They also show that in that period the complainer twice referred the appellant to the Royal Edinburgh Hospital. These records are clearly at odds with the complainer's apparent recollection of events. It is apparent that that evidence was not and could not have been foreseen on the information available to the defence solicitor in the course of his preparation for the trial.
14. The submission for the appellant is that since the primary line of defence was that the complainer was not a credible witness, the defence solicitor should have recovered the medical records and lodged them so that they would be available as a check on the accuracy of the complainer's evidence should any question arise such as the question about his having met the appellant before the first incident. As counsel put it, the solicitor should have recovered the whole records "to see what was there."
15. We accept that, on the face of it, the evidence of the medical records would have given the defence a further line of attack on the credibility of the complainer; but that is not a sufficient basis for an Anderson appeal of this kind.
16. Counsel for the appellant has expressly disclaimed any suggestion that the defence solicitor failed to present any line of defence that he was instructed by the appellant to present. The submission is simply that the decision not to recover and lodge the full records prevented the defence from having information to hand that might have led the jury to reject the complainer as a witness of credit, and that that decision involved a failure to take an obvious step in preparation for the trial.
17. In our opinion, this ground of appeal is misconceived. The criticism made of the defence solicitor relates to a decision that lay well within the range of his professional discretion. This court will not entertain Anderson appeals where all that is suggested is that with the benefit of hindsight and further investigation it can be seen that the defence could have been stronger or that better judgments could have been made on strategic and tactical matters. In this case, all that can be said for the appellant is that the defence solicitor failed to produce an adminicle of evidence that could have provided a response to a line of evidence by the complainer that could not reasonably have been foreseen. That line of evidence was on a collateral issue and there were good reasons for not producing the records. We therefore reject this ground of appeal.

Ground of Appeal 2

18. The second ground of appeal is that the sheriff misdirected the jury in repeating and failing to correct a comment made to the jury by the procurator fiscal depute to the effect that the failure of the defence to put certain allegations against a police witness in cross-examination indicated that the appellant had made up those allegations in the witness box.
19. In his evidence the appellant admitted that he had lied on a material point when interviewed by Detective Chief Inspector Gilmour and a colleague. He explained that he lied because he felt scared, intimidated and victimised. He said that he kept asking to see a solicitor but that that request had been denied; that DCI Gilmour had said that he would take his freedom away; and that DCI Gilmour had threatened him before the recording of the interview began. These allegations were not put to DCI Gilmour in cross-examination.
20. In his speech to the jury, the procurator fiscal depute commented on this. He suggested that that was an indication that the appellant had not told his solicitor about those allegations and that the jury should conclude that the appellant had made them up in the witness box. In his charge to the jury the sheriff said on this aspect of the evidence the following:

"Well I have to advise you that when allegations like that are to be made against the police, the proper and usual course is that when the police officer involved is giving evidence in the witness box the defence should make these allegations to him directly and ask him questions about them so that the officer has a fair opportunity to respond to the allegations. That was not done in this case and the Crown has suggested to you that the reason for that is that the accused simply made up the allegations when he was in the witness box in an attempt to explain away the lies which he had to admit he told the police on that occasion, so that is another suggestion that you will have to consider."

21. It is now suggested for the appellant that the failure of his solicitor to pursue that matter in cross examination of DCI Gilmour was not the appellant's fault. His evidence on the point had been consistent with his instructions to his solicitor "from the outset and prior to trial". The ground of appeal concludes with the following averment:

"The suggestion of the Crown that the jury could draw the adverse inference suggested was in error and wrong; and the directions of the learned sheriff that the jury could consider such a suggestion was a misdirection. As a result there was an improper or adverse inference on the credibility of the appellant put before the jury which, in the context of this case, constitutes a miscarriage of justice".

22. In our opinion there can be no question of the sheriff's having misdirected the jury on this point. As matters stood at the conclusion of the trial the appellant had made certain allegations against DCI Gilmour, none of which had been put to him. The comment made by the fiscal in his speech to the jury was one that he was entitled to make. The fiscal was not to know what instructions the appellant had given his solicitor; but it was legitimate to suggest that if the appellant had told his solicitor of his allegations against DCI Gilmour, the solicitor would have put those allegations to DCI Gilmour in cross-examination. Not to do so would be a breach of professional propriety. The comment made by the sheriff regarding the proper and usual course to be followed by the defence in such circumstances was appropriate. In commenting to the jury on the main points on which the issue of credibility might fall to be decided, the sheriff was entitled to remind the jury of the fiscal's comment on this topic and to say that that was another suggestion that they would have to consider (cf. Rauf v HM Adv, 1997 SCCR 41). This ground of appeal therefore fails.

Decision

23. We shall therefore refuse the appeal.