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Cite as: [2003] ScotHC 30

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Daly v. Her Majesty's Advocate [2003] ScotHC 30 (09 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord MacLean

Lord Hamilton

Appeal No: 395/01

OPINION OF THE COURT

delivered by LORD HAMILTON

APPEAL AGAINST CONVICTION

JAMES JOSEPH DALY

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Drummond Miller, W.S.

Respondent: Johnston, A.D.; Crown Agent

9 May 2003

[1] The appellant was on 9 March 2001 convicted after trial on indictment in the Sheriff Court at Perth of having on 2 January 2000, while acting with others at an address in Aberfeldy, assaulted the complainer to his severe injury, permanent impairment and permanent disfigurement. The principal mode of the assault, as determined by the jury, was by punching. The sheriff imposed a community service order of 300 hours and ordered the appellant to pay £4,000 by way of compensation to the victim.

[2] In the course of the trial the appellant was positively identified by the complainer as one of several persons who, in the early hours of the morning in question, had broken into the house where the complainer was then staying and subjected him to a protracted assault. He recognised the appellant through having seen him on a number of earlier occasions in a particular public house in Aberfeldy. The appellant was also positively identified as one of the complainer's assailants by another witness (Hogg) who was present in the house at the time. He testified that he had immediately recognised the appellant as a person whom he knew from the same public house. He had spoken briefly to the appellant during the course of the incident.

[3] Prior to the trial the appellant had timeously lodged special defences of alibi and of incrimination. One of the persons named as an incriminee was Craig McAdam. Shortly after the incident McAdam gave a statement to police officers. He was on the Crown list of witnesses and was present in the court building when the trial commenced. Later the same day it was discovered that he had disappeared. At the end of proceedings on that day the sheriff granted a warrant for McAdam's apprehension.

[4] On the following day evidence led by the Crown continued until 12.20 pm when the procurator fiscal, in the absence of the jury, advised the sheriff that McAdam had not yet been found, though it was at that time thought that there might be some prospect of bringing him to court in early course. An adjournment to the following day was sought by the procurator fiscal, was not opposed by the defence and was granted by the sheriff. On the following day McAdam had still not been traced. The procurator fiscal then moved the sheriff to allow the terms of a statement allegedly given by McAdam to the police to be admitted in evidence in terms of section 259 of the Criminal Procedure (Scotland) Act 1995. That motion was opposed by the defence. Before disposing of the motion the sheriff heard, in the absence of the jury, certain evidence from a police officer as to the circumstances in which the alleged statement had been given. He also heard argument from the parties and adjourned the diet until the next date (the fourth day of the trial) to give the police a further chance to locate the missing witness. When the court reconvened that morning the witness had not been found. The sheriff then granted the procurator fiscal's motion and the trial continued before the jury. Thereafter the procurator fiscal led evidence from a police officer who testified that at about 6.00pm on 2 January 2000 he had, in the presence of another officer, taken a statement from McAdam. The narrative had been written down by the police officer in his notebook (which was produced at the trial) and read over and signed by McAdam. Its contents were generally incriminatory of the appellant as an assailant of the complainer on the night in question. A suggestion made in cross-examination that the police had told McAdam what to say was rejected by the police officer.

[5] The appellant gave evidence in which he denied that he had been at the house where the incident took place and spoke to his alibi. Several other defence witnesses supported the appellant's alibi. Towards the end of the defence case the parties entered into a joint minute (which was read to the jury) to the effect that McAdam, some months after being interviewed by the police, had sought to retract the statement attributed to him.

[6] Having been addressed by the parties and charged by the sheriff, the jury returned the verdict earlier narrated. McAdam was apprehended some weeks later and, having been brought before the sheriff, was found guilty of contempt of court and punished.

[7] The appellant now appeals to this court against his conviction. The grounds of appeal lodged on his behalf include grounds (grounds 2 and 3) which, read together, bear on the relationship between section 259 of the 1995 Act and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In these circumstances this appeal was heard along with those in GDN v. H M Advocate and McKenna v. H M Advocate which raise similar, though not identical, issues. An unrelated ground of appeal (concerned with fresh evidence) was not argued at this hearing.

[8] In this case the reason relied on by the Crown as the basis on which hearsay evidence allegedly of McAdam should be admitted was that mentioned in subsection (2)(c) of section 259 of the 1995 Act, namely, that the person who made the statement -

"is named and otherwise sufficiently identified, but cannot be found and all reasonable steps which, in the circumstances, could have been taken to find him have been so taken".

It was not disputed before us that the sheriff at the time he ruled that the hearsay evidence should be admitted was entitled to be satisfied that that reason was made out. It was not suggested that any other statutory precondition for the admission of hearsay evidence was not satisfied. Accordingly if, as the sheriff held, he had in these circumstances no discretion but to admit the evidence, he was not, subject to a further consideration discussed below, in error in doing so.

[9] Mr Shead for the appellant submitted that the sheriff had erred in holding that he had no discretion in the matter. On this aspect of the appeal he adopted the submissions earlier made by Miss Scott for the appellant in GDN v. H.M. Advocate. We refer to the Opinion issued in that appeal and to our conclusion that that submission was not well-founded. It follows that in the present case the sheriff did not err in law in holding that, the statutory requirements having been satisfied, there was, as a matter of ordinary statutory interpretation, no discretion in the court to disallow admission of the hearsay evidence.

[10] The trial in GDN v. H.M. Advocate took place before the commencement of the Human Rights Act 1998 but that in the present case after that commencement. Mr Shead noted that distinction and referred to the interpretative obligation on the court under section 3 of that Act. He also relied on R. v. A. (No. 2) [2001] 2 WLR 1546, especially per Lord Steyn at paras. [43] - [46]. He submitted that, even if using ordinary methods of interpretation the sheriff was unable to construe section 259 as conferring a discretion, he was bound so to construe it against the obligation in section 3 of the 1998 Act. The suggestion appeared to be that, so construed, a discretion to exclude hearsay was to be read into section 259.

[11] We find it unnecessary in the circumstances of this case to reach a definite conclusion on this argument. If, as we have held in GDN v. H.M. Advocate, there was an obligation on the court to ensure that evidence was not adduced or used by the Crown so as to render the appellant's trial unfair, then his rights under Article 6 were sufficiently protected if that obligation was in the event discharged. We now turn to that matter.

[12] There was clear evidence from two primary sources that the appellant was one of the perpetrators of the assault on the complainer. The sheriff gave to the jury clear and express instructions, which were not criticised before us, as to how they should approach the hearsay evidence. He reminded them that the statement recorded in the policeman's notebook could not be tested by cross-examination of the maker nor by his demeanour in the witness box. He also told them that it was for them to decide whether what was there recorded was a statement by McAdam at all, it being a matter of agreement that McAdam had subsequently stated at the procurator fiscal's office that he had not said what he had been attributed to him and had been made to sign the notebook. If they believed that McAdam had simply signed what was put in front of him, then his "statement" was worth nothing. On any view it was for them to decide in the whole circumstances, including the cross-examination of the police officer, how great or how little weight to attach to the hearsay. They were thus fully and clearly directed on how they should approach it.

[13] While it is not possible for us to be certain what weight, if any, the jury gave to that hearsay, it is clear that the principal issue before them was whether, against the other evidence in the case, including the appellant's testimony and that of the alibi witnesses, they were satisfied beyond reasonable doubt that the complainer and Hogg had truthfully and reliably identified the appellant as one of the perpetrators. We are not satisfied that the hearsay evidence was of such materiality that its admission and use led in this case to a breach of Article 6 of the Convention and thus to a miscarriage of justice.

[14] We should add that shortly before the hearing of the appeal a minute raising a devolution issue was lodged on behalf of the appellant in which it was contended that the leading of the hearsay evidence was beyond the powers of the Crown. That remained before the court, although Mr Shead suggested that, the trial having taken place after the coming into force of the Human Rights Act 1998, that issue was not particularly decisive. However, since it has now been raised as a devolution issue (though it was not so raised before the sheriff), it is appropriate that the substantive question should be addressed and decided, in this case as in GDN v. H.M. Advocate, under the Scotland Act 1998. We have done so.

[15] For the foregoing reasons the appeal, in so far as based on grounds 1 and 2, must be refused. The appeal will be continued for further consideration of the outstanding ground of appeal.