Scottish High Court of Justiciary Decisons

McDonald v. Procurator Fiscal [2002] ScotHC 22 (05 March 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Cameron of Lochbroom Lord Hamilton Lord Weir	Appeal No: 2835/02 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in BILL OF SUSPENSION by DARREN McDONALD Appellant; against PROCURATOR FISCAL, Forfar Respondent: _______

 

 

Appellant: Shead; Drummond Miller

Respondent: McKenzie, A.D.; Crown Agent

5 March 2002

1. The complainer in this bill seeks suspension of pretended convictions and sentence pronounced in the sheriff court at Forfar on a complaint containing two charges. The first was a charge alleging a contravention of section 52(1) of the Criminal Law (Consolidation)(Scotland) Act 1995 in relation to damage to a motor car and the second was a charge alleging assault to severe injury upon an individual, Charles Grant Shaw Simpson.
2. The circumstances giving rise to the bill concern events during the trial proceedings on 25 October 2000. After evidence had been led for the Crown from Mr. and Mrs. Simpson who spoke to the events giving rise to the charges, and from a police officer speaking to a statement made by the complainer when cautioned and charged with assault, the Crown case was closed. The complainer was then called to give evidence. It appears from the answers for the respondent and from the sheriff's report that in the course of his evidence in chief the complainer denied attacking Simpson and asserted that Simpson had started the fight, following which there had been a stand-up fight and both men had tumbled together on the ground. At the end of his evidence in chief the sheriff states that the complainer said in terms:

"I beat this man quite badly. I never kicked his car. They reversed their car back to call the police."

It was at this juncture that there occurred the incident which gives rise to the bill. There are certain differences in the accounts which appear in each of the bill, the respondent's answers and the sheriff's report. It suffices to say that the sheriff accepts that before inviting the fiscal to embark upon cross-examination, he enquired of the agent for the complainer whether what had been said by the complainer was mitigatory rather than exculpatory. The sheriff goes on to say that he has no note as to whether it was suggested that there be an adjournment. But the advocate depute accepted that, as appears in the respondent's answers, the sheriff, having asked the agents for the complainer whether what had been said by the complainer was not "more mitigation than exculpation", had then asked the agent for the complainer whether he wished an adjournment to speak to his client. The respondent had thereupon stated to the sheriff that from his knowledge of the case an adjournment would serve little purpose and that the trial would require to be concluded. This latter statement is consistent with what is averred in the bill.

3. We accept the sheriff's statement that when he intervened as he did he certainly had not reached a concluded view as to the evidence of the case. Furthermore we take note of the concession by Mr. Shead for the complainer that he did not seek to suggest, notwithstanding the assertion in the bill otherwise, that the sheriff had shown bias. Rather he submitted that the question was whether it could be said that, at the particular juncture which had been reached in the case, the impression given by the language used by the sheriff would have led the reasonably informed person observing the proceedings to form the view that the sheriff had already made up his mind as to the guilt of the complainer at a point before the whole evidence had been led on his behalf and indeed at a point before the complainer's own evidence had been concluded. Mr. Shead maintained that the circumstances in the present case were very different from those which had obtained in Dott v. Cardle 1993 SCCR 834. In that case the court, while commenting that the sheriff's intervention had been unwise at the stage at which it had been made, had not been persuaded that the words used by him implied, even to the reasonable person, that the sheriff had already formed a concluded view upon the evidence and had determined upon the guilt of the accused.
4. For the Crown, the advocate depute contented himself with drawing attention to the position as set out in the answers for the respondent and in the sheriff's report. That material, he said, would not have meant more than that the complainer's solicitor might wish to consider his position, just as was the case in Dott v. Cardle.
5. In our opinion, not only was the sheriff's intervention at the particular juncture which had been reached in the case unwise but it was made in terms such as would have led a reasonably informed observer to suppose that the sheriff had reached a concluded view as to the guilt of the complainer. No other proper inference could be taken from the sheriff's reference to mitigation in the context of a suggestion that the agent for the complainer should seek an adjournment, that inference being reinforced by the respondent's intervention that from his knowledge of the case an adjournment would serve little purpose and that the trial would require to be concluded. As Lord Justice Clerk Ross said in Duff v. Cardle:

"No doubt during the hearing of a case the sheriff may form a provisional view upon evidence which he has heard, but it is important that he should not express any view upon it till the appropriate time, which, of course, is at a much later stage of the proceedings".

6. Such a stage should, on any view, only be after all the evidence for the defence has been heard. The sheriff in the present case unfortunately gave the impression that he had reached a concluded view, notwithstanding that his intention was otherwise. He did so not only before the defence case had been concluded but before cross examination of the complainer had commenced. We have accordingly passed the bill.