Scottish High Court of Justiciary Decisons

Goldie & Ors v. Her Majesty's Advocate [2002] ScotHC 327 (02 December 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Osborne	Appeal Nos: XC156/02 XC158/02 C802/02 XC157/02 C803/02 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL in terms of Section 65(8) of the Criminal Procedure (Scotland) Act 1995 by (1) RAYMOND GOLDIE, (2) BRUCE MUNRO, (3) MICHAEL JOHN BRYSON, (4) CHRISTOPHER HAMILTON and (5)TERENCE PATRICK NICHOLAS Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellants: (1) J. Hamilton; Balfour & Manson: (2) B. Gilfedder, Solicitor Advocate; Gallethy & Co: (3) M. McKenzie; Turnbull McCarron: (4) R. Renucci; Aitken Nairn:

(5) B. Saddler; Keith J. Tuck

Respondent: Peoples, Q.C., A.D.; Crown Agent

 

31 October 2002

1. The appellants in this case together face an indictment in which there are eight charges. In charge 1, all the appellants are alleged on 27 June 2001 to have committed a breach of the peace, involving forming a disorderly crowd, brandishing weapons, shouting, swearing and threatening to stab one John Crorken. In charges 2 to 6, the appellants individually are alleged to have had various offensive weapons with them on 27 June 2001 at the relevant location, a public place. In charge 7, Terence Patrick Nicholas is alleged to have assaulted one Michael Crorken by repeatedly striking him on the head with a metal bar to his severe injury and permanent disfigurement and, in charge 8, Michael John Bryson is alleged to have assaulted Michael Crorken by punching him repeatedly on the head to his severe injury and permanent disfigurement, once again on 27 June 2001 at the relevant location.
2. The appellants appeared on petition on these charges on 28 June 2001, the day after the alleged events concerned. At a first diet held on 25 May 2002, it was indicated that two essential Crown witnesses, Michael Joseph Crorken and John Crorken, had not been cited. On 28 May 2002 the indictment then in being was deserted pro loco et tempore and the statutory 12 month time limit was extended by three months. The sheriff was informed at that time that Michael Crorken was a witness in respect of charges 7 and 8, while the witness John Crorken was a witness in respect of charges 1 and 8.
3. A second indictment was thereafter served with a first diet on 26 August 2002 and a trial diet on 9 September 2002. On the former date, the sheriff was informed by the Crown that these two witnesses had not been traced. On 17 September 2002, the case came before Sheriff Deirdre McNeill, Q.C. when the Crown moved her to adjourn the trial diet and extend the 12 month statutory time limit again on account of the absence of the two Crown witnesses mentioned. The court was informed that it had not been possible to trace either witness. It was indicated that Michael Crorken declined to speak on his mobile telephone. Police efforts to trace the witness John Crorken had yielded the information that he was abroad on holiday in Mexico and would not return for some time. It was indicated to the sheriff that neither would be available for the contemplated trial. The agent appearing for Michael John Bryson had also indicated to the court that John Crorken was not in Mexico and that both witnesses were avoiding citation and did not wish to attend a trial. Against that background the Crown sought to make further enquiries regarding the situation and it was agreed that the diet should be adjourned to 19 September 2002. In her report to us, Sheriff McNeill explains that, having regard to the procedural history of the case prior to 17 September 2002, on that date she indicated that, should no further progress be made in securing the attendances of these witnesses, she would not be sympathetic to a Crown motion to extend further the statutory time limit. She makes clear that, on that date, she did not rule on the motion that it should be extended, despite what appears in the relative minute of proceedings.
4. The case called again before Sheriff McNeill on 19 September 2002, when the Crown renewed their motion to adjourn the trial to another sitting and to extend the time limit. It was then indicated that further contact had been made in respect of the witness Michael Crorken and that it was apparent that he was avoiding citation, but that the Crown had an address for him. So far as John Crorken was concerned, it was stated that he was still untraced, but was probably not in Mexico. Sheriff McNeill informs us that, having heard agents for the defence in opposition to the Crown motion for an adjournment, she allowed adjournment to a sitting on 4 October 2002, which she apparently believed to be a date within the 12 month statutory period, as already extended. She also granted a warrant for the arrest of Michael Crorken, but refused to extend the statutory time limit further. Sheriff McNeill explains that, in refusing to extend the time limit, she had regard to the fact that, throughout the history of both the first and the present indictments, that is to say from 20 May 2002, the same difficulties in securing the attendance of the two witnesses mentioned had prevailed. The Crown had known throughout that these two witnesses were required by the defence agents, who had made their own efforts to trace them without success. She states that she was not satisfied that the Crown had shown sufficient reason to allow her to exercise her discretion in their favour.
5. This case again came before a sheriff, Sheriff Laura Duncan, on 27 September 2002, Sheriff McNeill being by then on leave, when the agent for the third named appellant presented an argument in terms of a minute stating a plea in bar of trial, based upon alleged oppression on the part of the Crown, his argument being adopted by the solicitors for the other four appellants. Sheriff Duncan was informed by all persons appearing before her that the 12 month statutory time limit, as already extended, was due to expire the next day on 28 September 2002 and not on some date subsequent to 4 October 2002, as Sheriff McNeill had apparently believed. On that occasion it was argued that the conduct of the case by the Crown had been highly irregular and was inconsistent with the position which they had previously taken up. The Crown had previously indicated its preparedness to proceed with the trial in the absence of the two witnesses mentioned, but the defence agents had indicated that it was essential that they should attend.
6. On 27 September 2002 Sheriff Duncan was informed that the witness Michael Crorken had in fact been arrested on a witness warrant and had answered the warrant in court on Monday 23 September 2002. The procurator fiscal reiterated the position that neither Michael nor John Crorken was essential to the Crown's case. It was indicated that the witness John Crorken was still untraced. Enquiries had been made of the witness Michael Crorken, as a result of which it was believed that John Crorken was working in London as a scaffolder on building sites on short-term contract work. The police were in possession of a mobile telephone number for him, but, although there had been numerous attempts to contact him and answerphone messages had been left for him, he had not contacted the police or the procurator fiscal. On some occasions the mobile telephone number had been answered, but no one had spoken and the call had been terminated by the recipient. The Crown were unable to say if he was actively avoiding service of a citation. At the hearing before Sheriff Duncan on 27 September 2002 the procurator fiscal had stated that he was willing to agree John Crorken's evidence, in the form of a signed statement in a police notebook, or alternatively attempt to introduce his evidence by way of action under section 259 of the Criminal Procedure (Scotland) Act 1995, due to his present whereabouts being unknown and the Crown having taken all reasonable steps to find him, without success. However, it had been argued on behalf of the appellants that that was not an acceptable position, since it was desired to examine the witness on matters beyond those contained in the police statement.
7. Sheriff Duncan, in her report, explains that the situation with which she was faced was, in her opinion, somewhat different from that dealt with by Sheriff McNeill on 19 September 2002. In particular, in response to the warrant granted by the latter on 19 September 2002, Michael Crorken had been apprehended. She also considered that the Crown had taken steps which, it could be argued, would have made an application in terms of section 259 of the Act of 1995 arguable in relation to John Crorken. She thought that it was very difficult to see what more the Crown could have done to secure the attendance of John Crorken, having approached his family and Michael Crorken and having attempted to follow up the leads afforded. She considered that it was difficult to accept as an absolute rule that a trial could not proceed in the circumstances. She noted that the appellants had been arrested on 27 June 2001 and had appeared in court the following day. The 12 month time limit had been extended on one occasion for three months and was due to expire on 28 September 2002. That was some 15 months after the date on the charges, which she considered did not constitute undue delay. In all the circumstances Sheriff Duncan did not consider that the Crown were acting oppressively in wishing to proceed to trial. A jury could have been empanelled that day and the case continued over the weekend to allow precognition of Michael Crorken and consideration of John Crorken's signed statement in the police notebook and the prospects of a section 259 application. However, the sheriff narrated that, in those circumstances, agents for the defence wished an adjournment of the trial. She records that, in order to accommodate the defence wish for an adjournment, the procurator fiscal did not oppose the motion for such, but was forced to ask for an extension to the statutory time limit. That extension of time was opposed. Sheriff Duncan's understanding of the matter was that, despite Sheriff McNeill's refusal to extend the time limit, the matter could be reconsidered at Sheriff Court level, in the event of a change in circumstances. She indicates that, had the situation been the same as that existing before Sheriff McNeill, she would not have entertained the motion for a further extension. However, she considered that, since Sheriff McNeill had dealt with the matter, there had been a different turn of events. In all the circumstances she concluded that cause had been shown for an extension in terms of section 65(3) of the Act of 1995 and granted an extension to 1 November 2002, the case being adjourned to the sitting of the court commencing on 21 October 2002.
8. When these appeals came before us on 31 October 2002, counsel for the first named appellant drew attention to the factual background of the case, which we have outlined. He indicated that it had been clear from as early as 28 May 2002 that those representing the appellants had considered the presence of the two witnesses essential to a proper presentation of their cases. He pointed out that, at the hearing before Sheriff Duncan on 27 September 2002, the Crown had indicated that it was prepared to proceed to trial without the presence of John Crorken, intending to introduce his evidence by means of the procedure established by section 259 of the 1995 Act. However, the Crown had served no notice for that purpose in terms of section 259(5). Nor had they given any indication that they could satisfy the requirements of section 259(6), which excused a party from giving notice in defined circumstances.
9. Counsel for the first named appellant indicated that his argument fell into two parts. Firstly it would be argued that it had been incompetent for Sheriff Duncan to entertain the Crown application for an extension of the time limit on 27 September 2002, since a similar Crown application had been refused on 19 September 2002 and there had been no change of circumstances between those two dates. Secondly, upon the assumption that there had been a change of circumstances and that the motion had been competently entertained by Sheriff Duncan, it would be submitted that she had erred by failing to apply the dual tests which were applicable to such a motion, explained in Her Majesty's Advocate v. Swift 1984 J.C. 83, at page 88.
10. Turning to his first submission, counsel for the first named appellant contended that there had been no material change of circumstances between the hearing of 19 and that of 27 September 2002. The witness John Crorken had been unavailable on the former date and remained so on the latter. The mere passage of time between these two dates and the emergence of what, for the Crown, was a crisis by the latter could not properly be seen as such a change. Between the two dates, the Crown had been inactive as regards locating John Crorken; they could have approached the Metropolitan Police with a view to identifying his whereabouts in London, but had not done so. It would have been open to the Crown to appeal against the refusal of Sheriff McNeill to extend the statutory time limit on 19 September 2002, but they had decided not to do so. In that situation, it had not been open to the Crown to renew their motion before Sheriff Duncan.
11. Upon the assumption that the foregoing submission did not commend itself, it was submitted that Sheriff Duncan had erred by not applying the appropriate tests in relation to the application set out in Her Majesty's Advocate v. Swift. It was made clear in that case that, faced with an application of the kind before Sheriff Duncan, there were two questions to be considered: (1) whether a sufficient reason had been shown which might justify the granting of an extension; and (2) whether the court, in the exercise of its discretion in all the relevant circumstances of the case, should grant the extension for that reason. While it might be that a reason had been advanced which might justify the grant of an extension, no reasonable sheriff would have exercised the discretion of the court in favour of granting an extension for that reason. The position in this case was that John Crorken had been deliberately placed on the Crown list of witnesses, even though it appeared that the Crown were prepared to proceed to trial without him. However, the fact that he had been placed upon that list entailed that the defence were entitled to assume his availability. In that connection reference was made to Dickson v. H.M. Advocate (unreported), 23 October 1980, referred to in 1980 S.L.T. (News) 265. Reference was also made to Renton & Brown's Criminal Procedure 6th edition, paragraph 14.30. The Crown had much greater resources to apply to the task of finding a witness than were available to defence representatives; however, in the circumstances of this case, the Crown had demonstrably failed to make use of those resources to any effect in relation to John Crorken. Even if the extension to the statutory time limit sought by the Crown were not to be granted, it did not follow that there could be no prosecution arising out of the circumstances of the incident involved. Summary proceedings could be commenced against them, which, at least in the case of certain accused, would not be inappropriate. A useful discussion of the case of Dickson v. H.M. Advocate, in which no opinion had been issued by the court, was to be found in Mellors v. H.M. Advocate 1999 S.C.C.R. 869, at page 879. In all the circumstances, the appeal should be allowed.
12. Counsel for the third named appellant submitted that the impending expiry of the statutory time limit, as extended, could not itself be seen as a material change of circumstances for the purpose of rendering competent the application for an extension to Sheriff Duncan. If such a view were to be taken, the whole procedure of the making of applications under section 65(3) of the Act of 1995 would be open to abuse. The present situation bore certain similarities to that in H.M. Advocate v. Reekie 1993 S.C.C.R. 460. In that case it had been held that it would be oppressive to allow a trial to proceed in the absence of two witnesses whose names had appeared as Crown witnesses on an earlier indictment, but not on a later indictment, those witnesses being essential for defence purposes but not being available. Counsel for the fourth named appellant emphasised that the absence of the two witnesses involved in this case had been highlighted as early as May 2002, yet the Crown had failed to make John Crorken available.
13. The advocate depute moved us to refuse the present appeals. He submitted that it had been competent for Sheriff Duncan to entertain the application for an extension of the statutory time limit because, by 27 September 2002, there had been a material change of circumstances. By that date, one of the two missing witnesses, Michael Crorken, had been located by the Crown and arrested. Furthermore, it was apparent that the sheriff, in granting the Crown's application for an extension of the statutory time limit, had applied the proper tests; her decision should stand. There had been a sufficient reason before her capable of justifying a decision to extend the time limit and it could not be said that her exercise of her discretion in doing so was flawed. It was acknowledged that section 65(3) of the Act of 1995 required that "cause" had to be shown. The position on 19 September 2002 had been that both Michael and John Crorken were missing. There had been no real progress in tracing them. However, on that date the sheriff had been satisfied that Michael Crorken was evading citation and a warrant for his arrest had been issued. In consequence, he had been found and arrested. Thus substantial progress had been made in overcoming the problem which existed on 19 September 2002. In addition, some progress had been made in relation to John Crorken. Although the Crown had indicated on 27 September 2002 that they could proceed to trial without the evidence of John Crorken, defence agents had stated that he was an essential defence witness. On that basis, a formal application had been made by the defence that the trial should be adjourned to a future sitting. That application had been granted by the sheriff. In these circumstances it followed that the Crown had been disabled from proceeding to trial within the existing time limit. That was a completely different situation from the one which had faced the sheriff on 19 September 2002. In all of these circumstances Sheriff Duncan had been entirely correct in entertaining the application for the extension of the time limit. As regards the application of the second test in Her Majesty's Advocate v. Swift, it could not be argued that the sheriff's decision was "unreasonable" in the sense of falling outwith the range of reasonable decisions. The charges in the indictment were of a serious nature and it was wholly appropriate that they should in fact be brought to trial under solemn procedure.
14. Reliance had been placed by the appellants on the decision in Dickson v. H.M. Advocate. The true position in that case could be seen from what had been said by the court in Mellors v. H.M. Advocate at page 879. What appeared there indicated that the significance attributed to the decision in the paragraph in 1980 S.L.T. (News) was not wholly justified. The position had been that two witnesses had been excused by the procurator fiscal at his own hand. A subsequent defence motion for an adjournment on account of the absence of these witnesses had been refused by the sheriff. In the appeal which followed, the resulting conviction had been quashed, without the court delivering any opinion. That was a materially different situation from the one which existed here. Furthermore, that case did not justify the proposition that the defence were entitled to assume that all of the witnesses on the Crown list attached to an indictment were to be in attendance at the trial. It merely demonstrated that, in the particular circumstances of the case, a miscarriage of justice had occurred.
15. The first question which arises in this appeal is whether, where an application made under section 65(3) of the Act of 1995 has been refused, a further application under that enactment can properly be made in the absence of a material change of circumstances. In this connection, in our opinion, it must be recognised that section 65(8) of the Act provides that the grant or refusal of any application to extend the periods mentioned in the section may be appealed against by note of appeal presented to the High Court; and that the court may affirm, reverse or amend the determination made on such application. It appears to us clear from that provision that, where it is desired to bring under review a particular decision under section 65(3) based upon a particular set of circumstances, the proper course is the taking of an appeal under section 65(8). Such an appeal would proceed upon the basis of the facts and circumstances put before the judge of first instance in connection with the making of the particular application. We consider that, if it were competent, following upon a determination of an application made under section 65(3), simply to place an identical application before the same or another judge of first instance, based upon the same facts and circumstances as had been used to support the first application, with a view to obtaining a different decision, that would not be in accordance with the intention of Parliament, as demonstrated in section 65(8). That subsection plainly contemplates that the responsibility for reviewing a determination made under section 65(3) belongs to the High Court. However, where an application is made under section 65(3) which is based upon facts and circumstances which are materially different from those used to support an earlier such application, we can see no objection to that application being dealt with by a sheriff or High Court judge in the ordinary way.
16. In the light of this conclusion, the next question to be considered is whether between the time of Sheriff McNeill's decision taken on 19 September 2002 and the making of the application to Sheriff Duncan on 27 September 2002, there had been a material change of circumstances rendering the latter application competent. In our opinion, there had been such a change. In the first place, on 19 September 2002 both Michael and John Crorken had been unable to be cited as witnesses, since their precise whereabouts were then unknown. By 27 September 2002, that situation had changed. Michael Crorken had been apprehended on the warrant issued on 19 September 2002 and was available as a witness. In addition, certain information had been obtained by the Crown relating to the possible whereabouts of John Crorken. In the second place, since the defence agents were not prepared to proceed upon the basis that a signed statement in a police notebook by John Crorken could be taken as his evidence, a motion was made by the defence for an adjournment. As Sheriff Duncan explains, this motion was not opposed by the Crown and was granted. That decision put the Crown in the position of requiring to seek an extension to the statutory time limit, otherwise a trial could not be mounted. That was a situation quite different from that faced by the sheriff on 19 September 2002.
17. In the circumstances which we have just described, having regard to the two stage test explained in Her Majesty's Advocate v. Swift, we are of the view that the sheriff was quite entitled to conclude that a sufficient reason had been shown which might justify the grant of an extension under section 65(3). In the interests of justice, the sheriff had decided that it was appropriate for an adjournment of the trial to be granted at the request of defence agents to enable steps to be taken to locate the missing witness John Crorken. That decision, in association with the impending expiry of the statutory time limit as it then existed, appears to us plainly to constitute such a reason.
18. Considering next the sheriff's exercise of her discretion in favour of the Crown application, we do not think that it can be said that she erred in the exercise of that discretion. In particular, it cannot be said that she failed to take into account some relevant factor, or took into account some irrelevant factor, or gave undue weight to any of the factors placed before her. In our view, her report makes clear that she gave proper consideration to all aspects of the situation with which she was faced and reached a decision which cannot properly be criticised. For entirely understandable reasons, she decided that an adjournment should be accorded to the defence, the witness John Crorken being still unavailable to give evidence, despite the Crown's best endeavours to locate him. Having reached that decision, we can discern no reason why we should interfere with her subsequent decision to accede to the Crown's application for the necessary extension of the statutory time limit. In all these circumstances we refuse these appeals.