Scottish High Court of Justiciary Decisons

Cannon v. Procurator Fiscal [2002] ScotHC 127 (27 September 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Marnoch Lord Hamilton Lord McCluskey	Appeal No: 579/01 OPINION OF THE COURT delivered by LORD HAMILTON in STATED CASE by BARRY CANNON Appellant; against PROCURATOR FISCAL, GREENOCK Respondent: _______

 

 

Appellant: C. Shead; Balfour & Manson

Respondent: S. Woolman, Q.C., A.D.; Crown Agent

 

 

27 September 2002

1. The appellant was charged in the sheriff court at Greenock on a complaint containing four charges. After trial, at which he was represented by a solicitor, he was on 11 October 2000 acquitted of two of those charges but convicted on the remaining two. The charges on which he was convicted were (1) that on 13 April 2000 on a public road or street, namely Tarbet Street, Gourock near to Cardwell Road, he did drive motor vehicle registered number J344 TSF dangerously and "more particularly did direct said motor vehicle towards Mary Morrison and Jean Reagen ... then on foot there and said Mary Morrison and Jean Reagen required to take evasive action to avoid being knocked down and injured by said motor vehicle" and (2) that on a separate occasion on the same day on the same road he did drive the same motor vehicle dangerously "and more particularly did direct said motor vehicle towards said Jean Reagen ... then on foot there and said Jean Reagen required to take evasive action to avoid being knocked down and injured by said motor vehicle" - in each case contrary to the Road Traffic Act 1988, section 2 (as amended).
2. After several adjournments the court, on 16 January 2001,fined the appellant £200 on each charge and, in respect of each charge, disqualified him from holding and obtaining a driving licence for a period of 18 months. It also disqualified him until the prescribed test of competence to drive had been passed and ordered endorsement of his driving licence. Prior to trial the complaint had called in court on six separate occasions between 20 April and 27 September 2000; on each of these occasions the appellant was represented by the solicitor who ultimately represented him at the trial or by another solicitor apparently of the same firm. That solicitor also represented him on 16 January 2001.
3. The appellant, being dissatisfied with the final outcome of the proceedings, consulted another firm of solicitors. Having taken advice he, on 23 January 2001, personally completed an application for a stated case in which the sole ground of appeal was specified as -

"On the evidence presented no reasonable sheriff would have convicted the accused as there was insufficient crediable (sic) and reliable evidence led by the Crown".

4. The sheriff in due course issued a draft stated case. Both the procurator fiscal and the new agents for the appellant submitted proposed adjustments, some of which were accepted and some rejected by the sheriff. None of the adjustments proposed by the appellant's new agents touched upon any concern about the quality of representation provided to the appellant prior to or at the trial. No amendment or addition to the application for a stated case was, it appears, made under Section 176(3) of the Criminal Procedure (Scotland) Act 1995.
5. In the stated case the sheriff made a number of findings in fact, the salient elements of which may be narrated as follows. As at 13 April 2000 Miss Reagen and the appellant were married to each other but were involved in a contentious and acrimonious divorce action. On that day Miss Reagen and Mary Morrison, her friend, were out walking as part of a regular exercise programme. As part of their normal route they had to cross Tarbet Street in Gourock. On this occasion they arrived there at about 7.30pm. It was still light. They proceeded to cross the road. As they were doing so a car came screeching round the corner, the car being almost up on the pavement. The vehicle concerned had turned into Tarbet Street on the wrong side of the road and in the face of oncoming traffic. The car brushed the leg of Miss Morrison. She thought the driver of the car was drunk but Miss Reagen indicated that she believed the driver to be her husband. Miss Morrison was shocked and astonished at what had happened. When Miss Morrison advised Miss Reagen that she was going down to the car to speak to the driver, Miss Reagen advised Miss Morrison not to bother as she was aware that it was her husband. Miss Morrison, however, followed the car down Tarbet Street where it was then stationary. She looked in the car and recognised the appellant. She advised him that he was crazy and was not getting away with it. The appellant then drove off very fast. He drove towards Miss Reagen who was on the other side of the road. The car being driven by him bumped on to the pavement near Miss Reagen and she had to jump out of the way. At least two wheels of the car were on the pavement. When the appellant drove toward Miss Reagen she was forced to turn and run on to a grass banking. The car then reversed and drove away towards Greenock. Both Miss Morrison and Miss Reagen were anxious and upset as a result of the incident. Both were very distressed and frightened. The sheriff concluded that the driving of the appellant as described by him fell far below what would be expected of a competent and careful driver and that it would have been obvious to a competent and careful driver that driving in that way would be dangerous.
6. In his Note the sheriff observes that the issue at stake was a question of credibility and reliability. In respect of the two charges on which the appellant was convicted, the sheriff stated that he had no difficulty whatsoever in finding that there was credible and reliable evidence in support of these charges. He found both Miss Morrison and Miss Reagen to be credible and reliable witnesses and where their evidence differed in any way from the appellant he had little difficulty in preferring their evidence. The appellant, on the other hand, the sheriff found to be "evasive and less than truthful".
7. The signed stated case and related documents having been placed before a single judge of the High Court, he refused leave to appeal, giving as his reasons that the case depended on issues of credibility and reliability which the sheriff had decided in favour of the victims. These reasons were related to the only grounds of appeal then advanced. The appellant, through his new solicitors' Edinburgh agents, exercised his right to appeal against that refusal. Their letter (dated 6 April 2001) included the following sentence - "When consideration is being given to the appeal we would wish the following points as per the attached Paper Apart taken into account". That Paper Apart (apparently an extract from a Note by counsel) was in the following terms -

 "While it is accepted that there are no arguable grounds disclosed in the stated case as it presently stands, it is respectfully submitted that an arguable appeal does exist in relation to defective representation by the solicitor who conducted the appellant's case. The following areas have been identified as potentially amounting to a miscarriage of justice to the extent that the appellant's defence was not properly or adequately put forward:

(1) That in spite of clear instructions to attack the character of the complainers, Mary Morrison and Jean Reagen, no reference was made to their previous convictions. The appellant had advised his solicitor of the details of previous convictions in relation to both women, and in particular his ex-wife's convictions for dishonesty offences of theft and fraud, and the fact that she was at the time of the trial under investigation in relation to further fraud allegations.

(2) That the solicitor failed to have photographs taken of the locus which would have demonstrated that the complainers' account of events was false.

(3) That in spite of instructions to have the appellant's car examined to confirm that there was no damage despite the claims of the complainers that it had collided with and mounted a pavement, no such investigation was carried out.

Furthermore, since the conviction the appellant has been advised by his ex-wife that the solicitor who conducted his trial was in fact a friend of hers. The appellant accepts that his solicitor advised him that the solicitor's wife had worked with the appellant's ex-wife. He is not in a position to say absolutely that this information from the solicitor came to light post-conviction, but it is submitted that it is a matter that should be investigated. Efforts have been made to clarify the position with the appellant's former agent but they have proved unsuccessful. In that regard, it is also unknown what efforts, if any, were made to seek out potential defence witnesses who resided at the locus of the offences, notwithstanding that instructions were given to make enquiries of residents, and patrons of a café, at the locus.

In such circumstances, it is submitted that all these matters should be investigated. As the sheriff indicates in the stated case, the points at issue were solely matters of credibility and reliability. That being so, the trial solicitor's failures to act in the ways complained of arguably has resulted in a miscarriage of justice".

8. The appeal in respect of leave having been placed before three judges of the High Court, they, without granting or refusing leave, instructed the Clerk of Justiciary to intimate the contents of the Paper Apart to the agent who conducted the trial for his observations. That was duly done by letter dated 23 May 2001. The response received was in the form of a copy of a letter of 6 April 2001 addressed by the former solicitors to the new solicitors apparently raising the same issues. It read -

"...

(1) Previous Convictions

This was discussed with Mr Cannon pre-trial. It was agreed however that this line of cross-examination would not be pursued. To the best of our knowledge Mrs Morrison has no previous convictions.

(2) Jean Reagen

Our Mr Gallagher the solicitor who had acted for the appellant explained to Mr Cannon before the trial that Mrs Reagen had at some point in the past worked beside Mr Gallagher's wife. Mr Gallagher has no personal knowledge of Mrs Reagen other than having exchanged pleasantries with her when calling at his wife's former place of employment.

(3) Photographs of Locus

A private investigator attended at the locus but the results of this examination did not support the view expressed by Mr Cannon and it was therefore not considered in his interest to obtain photographs.

(4) Examination of motor vehicle J344 TSF

We are unsure what Mr Cannon's position in this may be. There was no accident as such. There was nothing that had occurred that could have caused any damage to the motor vehicle. Neither Mr Cannon nor the Crown witnesses were suggesting that anything had happened which would have caused damage to the vehicle and therefore the examination of the vehicle would have been pointless.

(5) Independent Witnesses

Our investigator made several attempts to trace independent witnesses but without success".

9. The continued application for leave was then brought before three judges of the High Court who noted that there appeared to be matters of fact in dispute in the case and that the resolution of these raised issues of procedure which could only be resolved by the Court. On that basis they, on 2 August 2001, granted leave to appeal.
10. On 28 November 2001 the case called before the Court which, having heard counsel for the appellant and the advocate depute, appointed the appellant to lodge any proposed amendment to the application for a stated case and an affidavit from the appellant in support of the proposed ground and that within three weeks from that date and directed the Clerk of Court to intimate to the former agents a copy of the proposed grounds and affidavit and to invite them to comment if so advised. The appeal was continued to a date to be fixed.
11. Proposed grounds of appeal in the following terms were tendered on 19 December 2001:

"It is respectfully submitted that a miscarriage of justice has occurred in this case standing the defective representation of the appellant's trial solicitor.

The appellant's trial concerned incidents in which the appellant's ex-wife, Jean Reagen, and her friend, Mary Morrison, were the principal Crown witnesses and in terms of the prosecution of the case the credibility and reliability of these witnesses was paramount. In that regard the appellant's solicitor failed to adequately present the appellant's defence and acted contrary to the appellant's instructions in that:

(a) Despite being given specific instructions to attack the character of said witnesses on the basis of detailed knowledge of his ex-wife's previous convictions and a general knowledge of Mary Morrison's previous offending, the solicitor failed to do so. There would have been no tactical benefit to the appellant in the decision not to cross-examine the witnesses on their records of offending given that the appellant had only two minor convictions relating to taxi licence offences in the 1980s.

(b) Despite being advised of the witness Reagen's defective eyesight, that line was not raised in cross-examination with the witness.

(c) That in relation to the car the appellant was driving at the time of the alleged offences, the appellant gave instructions that details of any police examination of the vehicle, while it was impounded, should be ascertained. He was also concerned that the defence should examine the vehicle in any event. The appellant was aware that the Crown witnesses were alleging that the car had mounted a pavement, that the engine of the car had been roaring and the tyres screeching, and that the witness Morrison had originally alleged that the car had struck her. It was the appellant's position that these things had not happened, and that examination of the car would discredit the Crown witnesses as no collision damage to the car would be found, and that in any event the car was an automatic and could not, without modification, operate in the manner described. No such examination was instructed by the appellant's solicitor and the line was not pursued with the police witnesses.

(d) The appellant instructed that details and photographs of the locus should be considered, as it was his position that the description of the locus given by the Crown witnesses in precognition did not accord with reality. In particular, the appellant's ex-wife claimed to have run along a grassy area and the appellant advised his solicitors that this area had not existed at the time of the alleged offence owing to work being carried out on a new sewage system. Notwithstanding this, no photographs were taken of the locus and there was no investigation of the work being carried out at the locus.

Having regard to the fact that the learned sheriff, who heard the trial and prepared a stated case in relation to the original grounds of appeal, confirmed that the points at issue in this trial were solely matters of credibility and reliability, it is submitted that the solicitor's conduct and failures to act on instructions, all as set out above, adversely affected the conduct of the appellant's defence to the extent that it was not adequately prepared or presented".

12. An affidavit sworn by the appellant was also lodged.
13. A response dated 12 March 2002 from the former solicitors to these proposed grounds of appeal was also received. The relevant responses were as follows:

"(a) The issue of attacking the character of the Crown witnesses was discussed with Mr Cannon before the trial. It was, however agreed with him that this line of cross-examination would not be pursued. To the best of our knowledge Mrs Morrison has no previous convictions. Mr Cannon was not able to shed any further light on the apparent history of offending that he suspected she may have.

(b) This was never raised at any point during the trial. Similarly this was never raised at any point when the appellant's solicitors wrote to us after the conviction to question certain aspects of representation.

(c) This point arose after the conclusion of the trial. Examination of the vehicle was of little significance as there was no allegation of any collision having taken place. Evidence was given in the course of the trial, to the best of our recollection, that the vehicle was an automatic. No instruction was given to have the vehicle examined in advance of the trial.

(d) A Private Investigator attended the locus but the result of his examination did not support the view expressed by Mr Cannon and it was therefore not considered in his interest to obtain photographs. Indeed, the examination of the locus was entirely consistent with the complainer's account of the area. This examination was relayed to Mr Cannon prior to the trial and it was discussed with him that the production of photographs would simply undermine his position should he give evidence. In particular, the kerb at the locus was nowhere near as high as the accused was alleging and would not have caused any damage to the motor vehicle if the vehicle had been driven on to the pavement".

14. The case came again before the Court on 12 July 2002. It is doubtful whether the procedures followed in this case wholly square with the procedural arrangements prescribed by Section 180 of the Criminal Procedure (Scotland) Act 1995 for obtaining leave to appeal against a conviction in summary proceedings. Be that as it may, Mr Shead, who appeared before us for the appellant, accepted that, if the appellant's complaint of defective representation was to be entertained by the Court, it would be necessary for him to obtain leave from it at this stage to admit the proposed grounds tendered on 19 December 2001. We are prepared to approach the appeal on that basis.
15. Mr Shead opened by referring to the conflict between the account of matters relative to the appellant's representation as narrated in the proposed grounds of appeal on the one hand and as contained in the former agent's responses to these grounds on the other. He suggested that that conflict might appropriately be resolved either by this Court itself hearing testimony from the appellant and his former agent or by remitting the factual dispute for enquiry to a single judge of this Court or to the sheriff principal. He submitted that, if the appellant's account was correct, it raised matters of substance as to whether, by reason of defective representation prior to and at the trial, there had been a miscarriage of justice. In developing this aspect Mr Shead conceded that, standing information now available to him, ground (c) could not be insisted on as amounting or contributing to a miscarriage of justice - the vehicle in question had, it now appeared, subsequent to 13 April 2000 but prior to the trial been so damaged that an examination of it would not have been helpful. A similar difficulty arose in relation to ground (d), there having been subsequent to 13 April 2000 changes to the physical environment. There might, however, be an aspect of Miss Reagen's reliability or credibility to which this ground remained pertinent. The main basis, however, for the contention that, if the appellant's account of his dealings with his former agent was correct, a miscarriage of justice may have occurred, was ground (a) and, to a lesser extent, ground (b). While the appellant had himself two minor previous convictions in relation to breach of taxi licensing provisions, his ex-wife, Miss Reagen, not only had one like previous conviction but had also been convicted (in 1985) of two charges of shoplifting and of an attempt to pervert the course of justice (in respect of which she had been fined in total £35). He did not suggest that there was any other basis for attacking her character. Had her credibility and reliability been challenged at the time under reference to her record, the sheriff might well, he submitted, have taken a different view of her testimony. It was, however, now accepted that Miss Morrison had no previous convictions. As regards ground (b), if Miss Reagen's eyesight was defective and the former agent had been so advised, his failure to raise it at the trial might, Mr Shead suggested, have amounted to defective representation contributing to a miscarriage of justice. It was, however, accepted that the appellant's position was and remained that Miss Reagen had deliberately given false testimony and that in these circumstances the consequences for the issues at the trial of any defective eyesight were not obvious. In the course of his submissions Mr Shead referred to E v HM Advocate 2002 S.C.C.R. 341.
16. The advocate depute, with reference to the test to be applied when considering whether, against an allegation of defective representation, the Court should exercise its powers to hear evidence or to remit for enquiry and report, cited Anderson v HM Advocate 1996 S.C.C.R. 114 where at page 132B it was stated -

"Before it will exercise these powers, however, it must first be satisfied that the complaint which is made in the grounds of appeal is of a kind which would be likely to satisfy the test which we have described in the preceding paragraph"

(which identifies the narrowly defined circumstances in which the conduct of the defence may give rise to a miscarriage of justice). That test, he submitted, was not satisfied here. There was no prima facie merit in the appellant's complaints of defective representation. It was far from clear that the conflict of accounts between the appellant and his former agent could satisfactorily be resolved. Taking matters in the round the Court should refuse to admit the proposed grounds and should dismiss the appeal. In the course of his submissions the advocate depute referred to Winter v HM Advocate, 31 May 2002, unreported.

17. In this case the appellant seeks leave to introduce as a new (and effectively sole) ground of appeal a contention that by reason of defective representation at and before his trial he has suffered a miscarriage of justice. His complaints include allegations of failure to comply with his instructions. In deciding whether such leave should or should not be granted it is necessary to have regard to the nature and the history of the case.
18. The appellant was charged on a complaint which first called in the sheriff court on 20 April 2000. He was then personally present and was represented by the solicitor who ultimately represented him at the trial. On five subsequent occasions prior to the trial the appellant was again personally present and was represented either by the same solicitor or by an associated solicitor. It appears from the appellant's affidavit that that same solicitor was also at that time representing him in connection with his divorce. He was, of course, personally present throughout the trial including the cross-examination of all the Crown witnesses adduced; he gave evidence on his own behalf. If, as he now maintains, his instructions to his then solicitor, including in particular instructions pertinent to the cross-examination of Miss Reagen and Miss Morrison, were being and had been disregarded it must have been perfectly obvious to him at the time that that was so. Yet so far as appears, he took no steps either prior to or at the trial to do anything about it. By contrast, though dissatisfied with the outcome and having sought and obtained separate legal advice, he made an application for a stated case which made no reference to defective representation. Nor was any amendment or adjustment proposed which bore on that matter. It was raised only after leave to appeal on the sole ground stated had been refused.
19. When the appeal came on for a hearing before us, it was immediately evident that much of what was asserted in the proposed grounds of appeal was either unfounded in fact or could not conceivably support a contention that there had been a miscarriage of justice. Ground (c) was wholly departed from and ground (d) largely so. On examination it became plain that in the circumstances of the case (where no issue arose as to the identification of the accused as the driver and the issue of what had occurred turned essentially on credibility rather than on reliability) ground (b) was of no significance to any question of a miscarriage of justice. As to ground (a), a specific instruction to attack the character of Miss Morrison on the basis of "a general knowledge of [her] previous offending" was manifestly lacking in substance, Miss Morrison having no such history. As to attacking the character of Miss Reagen, the appellant in his affidavit, while referring to his ex-wife's criminal record and swearing that he "thought it was important" that his solicitor should attack her and Miss Morrison's characters, does not in terms swear that he gave his solicitor specific instructions to that effect; nor, despite it having been raised expressly in the former agent's letter of 6 April 2001, does he in that affidavit make any reference to the statement there made that it had been agreed with him that a line of cross-examination on the basis of previous convictions would not be pursued. Even if it were to be established on further enquiry that the appellant had given specific instructions to his solicitor to challenge the character of his ex-wife (on the basis essentially of conviction on a single complaint fifteen years earlier) and these instructions had been disregarded, it is, to say the least, very doubtful that such conduct could of itself lay a sufficient basis, under reference to Anderson v HM Advocate, for maintaining that a miscarriage of justice had occurred. It may also be of some significance to note the marked discrepancies between what is asserted in the Paper Apart and that asserted in the more recent proposed grounds of appeal.
20. Section 182(3) of the Criminal Procedure (Scotland) Act 1995 provides that, except by leave of the High Court on cause shown, it shall not be competent for an appellant to found any aspect of his appeal on a matter not contained in his application under section 176(1) of the Act (or in a duly made amendment or addition to that application). In all the foregoing circumstances, including the history of the appeal and the apparent lack of substance to the matters now sought to be introduced, we are not satisfied that this is a proper case in which leave should be granted to the appellant to found on the matters contained in the proposed grounds of appeal. We shall accordingly refuse leave to admit them and, without finding it necessary to answer the only question posed in the stated case, we shall, in terms of section 183(1)(b) of the Criminal Procedure (Scotland) Act 1995, affirm the verdict of the sheriff.