Scottish High Court of Justiciary Decisons

Binnie v. Her Majesty's Advocate [2002] ScotHC 79 (19 June 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord MacLean	Appeal No: C529/99 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION and SENTENCE by WILLIAM SMART BINNIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Jackson, QC; Purdie & Co.

Respondent: Turnbull, QC, AD; Crown Agent

19 June 2002

The background

1. On 12 August 1999 at Edinburgh High Court the appellant was convicted of conspiracy to rob, robbery and subornation of perjury and sentenced to 8 years imprisonment. He thereafter lodged an appeal against conviction and sentence. The appellant tabled four grounds of appeal, none of which is relevant to the present decision. On 14 September 2001 the appellant submitted a new ground of appeal in the form of an application to adduce new evidence. His proposal was to adduce the evidence of James Devine which, he said, would exculpate him in relation to charges 1, 2 and 4. We have now had a hearing confined to this new ground of appeal.
2. The background to this case is that charges 1 (conspiracy to rob) and 2 (assault and robbery) were made against the appellant on the basis that he had acted along with two others, namely Alexander Robinson Robertson Morrison and James Devine and that he had assisted them in the preparations for the robbery. It was not disputed that the appellant had not been present at the commission of the robbery. The Crown case was that he was guilty on an art and part basis. On charge 4 (subornation of perjury) the appellant was charged with having attempted to suborn both Morrison and Devine to give false evidence at his trial. The appellant was convicted on this charge under certain deletions, the effect of which was that he was convicted only of having attempted to suborn Devine.
3. At the date of the appellant's trial Morrison and Devine had already pled guilty to the charges of conspiracy and assault and robbery.
4. Morrison and Devine were the principal witnesses against the appellant. Devine's evidence was ambiguous in many respects. Nevertheless, he incriminated the appellant. He identified him as the person who had helped him and Morrison. It is accepted that his evidence was essential, when taken with that of Morrison, to establish a sufficiency of evidence against the appellant.
5. Morrison gave evidence that the appellant was not the third man in the case but, for reasons that we need not go into, the trial judge held that there was sufficient in the whole evidence to establish a case to answer.
6. According to the appellant, Devine has since indicated that his evidence incriminating the appellant was untrue. The solicitor for the appellant has precognosced Devine. According to the precognition, Devine now confirms that he lied at the trial. Devine says that the reasons why he incriminated the appellant, to the extent that he did, were that the police had told him and Morrison that the appellant had grassed on them and that, having given police statements against the appellant, they would be committing perjury if they went back on the statements. The solicitor for the appellant prepared an affidavit of Devine based on that precognition, in which Devine disclaimed the evidence that he gave at the trial. The solicitor submitted the affidavit to Devine's solicitor. Thereafter Devine declined to sign it. Devine has not stated expressly that the draft affidavit is inaccurate, nor has he given any explanation for his refusal to sign it.
7. The appellant has now tendered an affidavit of his solicitor in which he speaks to Devine's change of evidence and annexes to the affidavit copies of the precognition of Devine and of the affidavit that Devine has refused to sign. Morrison has given an affidavit in which he states that the third man who assisted him and Devine was not the appellant. His explanation for having incriminated the appellant is in line with Devine's. The appellant has also lodged an affidavit of Anthony Gormley, who is presently a prisoner in H.M. Prison, Perth. Gormley says that Devine has admitted to him that he lied at the trial when he identified the appellant as the third man.

The statutory provisions

8. We need not quote the relevant subsections. Section 106 (as amended) of the Criminal Procedure (Scotland) Act 1995 entitles an appellant to bring an appeal on the ground of an alleged miscarriage of justice based on the existence and significance of evidence that was not heard at the trial (s. 106(3)(a)). Such evidence may found an appeal only where there is a reasonable explanation of why it was not heard (s. 106(3A)). Where the evidence is from a person who gave evidence at the trial and is different from the evidence so given, it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at the trial, which explanation is itself supported by independent evidence (s. 106(3C)). For this purpose "independent evidence" means evidence which was not heard at the trial, is from a source independent of the person from whom the new evidence is sought to be adduced and is accepted by the court as being credible and reliable (s. 106(3D)).

Submissions for the appellant

9. Counsel for the appellant submitted that it was sufficient at this stage for the appellant to adduce hearsay information as to Devine's change of evidence in the form of the solicitor's affidavit and its annexations. The evidence itself would emerge when Devine was put on oath and examined on the matter. The requirement for an explanation for Devine's change of evidence was met by the affidavit of Morrison which gave similar reasons for his own incrimination of the appellant. The affidavit of Morrison could be established as credible and reliable if he were to be put on oath and if he spoke to his affidavit. The court should therefore appoint a hearing at which Devine, Morrison and Gormley were cited to give evidence on oath.

Submissions for the Crown

10. The advocate depute argued that the appellant had failed to tender "evidence" not heard at the trial in terms of section 106(3)(a) of the 1995 Act. Whatever Devine said to the appellant's solicitor on precognition took the matter no further. He had given a different version on oath at the trial. The jury had accepted that version. There was merely hearsay evidence that Devine was now maintaining a different version. There was no reasonable explanation as to why Devine did not give the new evidence at the trial, or as to why he refused to sign the affidavit. It could be because the draft was inaccurate, incomplete or untrue. It could also be because, although the draft was true, he had no intention of giving evidence in terms of it. There had been no attempt by the appellant's representatives to follow up the question why Devine was refusing to sign. Furthermore, there were material differences between the draft affidavits of Devine and of Morrison. The submission for the appellant in effect bypassed all the requirements of section 106(3) and (3A) to (3D). It was for the appellant to satisfy the court that the explanation given was reasonable and genuine. The question could be decided at this stage. The court should conclude that Morrison's affidavit, the source of the supposed explanation, was not capable of being "credible and reliable" (Campbell v H M Adv 1998 SLT 923, at pp. 936-937).

The questions raised

11. The submissions raise the following issues: (1) whether in an application under section 106 of the 1995 Act the new or additional evidence on which the appellant relies must be presented in affidavit form; (2) whether the information founded on in this case constitutes new evidence in terms of section 106(3)(a); (3) whether the appellant has given a reasonable explanation to the court why the evidence tendered was not given at the trial; (4) whether, if there is such an explanation, the independent evidence relied on in terms of section 106(3C) and (3D) supports it; and (5) whether that independent evidence is "credible and reliable" (s. 106(3D)(c)).

Conclusions

(1) The form of the evidence

12. We are concerned in this appeal only with the case where the appellant claims that a witness at the trial is now maintaining an account that differs from his evidence at the trial in a material respect. Section 106 requires that in such a case the appellant must tender "evidence" in support of the appeal. There is no rule that such evidence must be in affidavit form. The use of affidavits is a good practice that should be followed whenever possible; but it is conceivable that other forms of evidence might be acceptable. The court might in certain circumstances be willing to accept evidence in the form, for example, of a video recording of a television interview of the witness or of a book written by him. Such questions can be decided on their own facts and circumstances as and when they arise.
13. On the submissions that we have heard in this case, we are not persuaded that information given in the form of a precognition of the witness will suffice as evidence for the purposes of section 106. The shortcomings of a precognition are well known. A precognition is not the authentic word of the witness. It represents merely the precognoscer's account of what the witness said to him (cf. Kerr v HM Adv 1958 JC 14; Coll, Petr., 1977 JC 29). A precognition given on oath or a signed police statement is of course in a different category.
14. It is unnecessary for us on this occasion to attempt to prescribe any hard and fast rules on the point, because we are satisfied that the new information tendered by the appellant does not constitute "evidence" in the circumstances of this case.

(2) Whether the new information constitutes "evidence" for the purposes of section 106(3)(a)

15. The key witness on the material issue is Devine himself. We have been given merely a precognition of Devine and an unsigned affidavit. The affidavit is simply a reworking of the precognition and has no greater status than the precognition. The decisive consideration, in our view, is that Devine has been asked to sign the affidavit and has refused. The request to him to sign is the first opportunity that Devine has had to authenticate the contents of the affidavit. In our opinion, his refusal to sign the affidavit, whatever his reasons, has the consequence that we cannot accept the contents of the affidavit as evidence for the purposes of section 106.

(3) The other questions in the case

16. On the view that we have taken as to the status of the information tendered by the appellant, the further questions to which we have referred do not arise and we shall not express a view on any of them.

Disposal

17. We shall refuse this ground of appeal, and the application contained within it. The appeal can proceed upon the other grounds at a later date.