Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Dandie, Re Petition To The Nobile Officium [2003] ScotHC 45 (28 March 2003)
URL: http://www.bailii.org/scot/cases/ScotHC/2003/45.html
Cite as: [2003] ScotHC 45
[New search] [Help]
Dandie, Re Petition To The Nobile Officium [2003] ScotHC 45 (28 March 2003)
|
APPEAL COURT, HIGH COURT OF JUSTICIARY |
|
|
Lord Macfadyen Lord Carloway Lady Smith
|
Appeal No: MISC 80/03 OPINION OF THE COURT delivered by LORD CARLOWAY in PETITION to the nobile officium by MARGARET DIANNE DANDIE Petitioner: _______ |
Petitioner : P Wheatley, Solicitor Advocate; Winning Defence Lawyers
Respondent : Bell Q.C., A.D.; The Crown Agent
28 March 2003
[1] This is an application to the nobile officium of the Court seeking to reduce a sentence of fifteen months imprisonment dated 21st February 2003. That sentence was imposed at the High Court in Dunfermline following upon a finding that the petitioner was in contempt of that Court. The finding itself was not challenged and the Minutes record it as follows:
"The Court found the said Margaret Dandie to be in contempt in respect of her behaviour yesterday, her argumentative disposition in the witness box, she had made a clear attempt to pervert the course of justice by withholding relevant evidence, her refusal to answer a direct question and becoming argumentative again today in the witness box."
It was made during the course of the trial of David McLeave and six others, which had commenced on 4th February 2003 and was eventually concluded on 13th March 2003. The trial involved some 42 charges which included: offences of violence, notably numerous assaults, abductions, robbery and attempted murder; contraventions of the Misuse of Drugs Act 1971, including concern in the supply of heroin, cocaine and cannabis resin; and contraventions of the Firearms Act 1968, including possession of a rifle and two stun guns.
[2] The trial judge explains that on the afternoon of 20th February, the petitioner was called as a witness by the Crown. The advocate depute asked her : "Have you used drugs in the past?" Instead of answering that question, she paused and responded with "What type of drugs?" The trial judge explained to her that it was important that she should listen carefully to any question asked and answer that question. Upon the trial judge rephrasing the question for her, she said: "amphetamine and prescribed drugs". The petitioner was taken through a series of occurrences following upon a friend asking if certain people could stay at the petitioner's flat, which the petitioner only occupied intermittently. She identified one of these people as the fifth accused (Edward Lindsay). She was then asked about a later occasion when she had visited her next door neighbour's flat and had, she said, seen bags under her neighbour's jacket. When asked what type of bags, she said that she could not tell. The trial judge reminded her of her obligation to tell the whole truth. She then said, after some hesitation: "plastic bags" or, at least, one "carrier bag". When asked what was in the bag, she said: "I did not look into it". However, as will be seen, she was well aware of what was in it. She said she took the bag and gave it to someone called Lee (the sixth accused was called Lee Kingham). When asked if she could see Lee in court, she looked around and said "yes", pointing in the direction of the dock. She then said "Eh, no I can't" and that she could not remember what he looked like. Despite again being reminded of her obligation by the trial judge, she maintained that she could not identify Lee. She did say, however, that Lee and the fifth accused had emptied the bag onto a table and she had seen that the bag had contained cannabis resin. On being asked about what the two men had spoken about, she said: "I dinna ken. I wisnae listening." Not surprisingly, it appeared to the trial judge that the petitioner was deliberately withholding information. When asked whether she had ever seen drugs stored in her flat, she replied: "I never saw drugs being dealt". Upon the trial judge explaining that this was not an answer to the question asked, she said: "I had a rough idea they were storing drugs in my flat".
[3] At the end of the day, after the jury had retired, the trial judge cautioned the petitioner that, when she resumed her evidence the following day, she had to tell the whole truth and not withhold information. He tells us that she interrupted him by saying, in a truculent tone: "I'm not holding back information". The trial judge told her that the contrary appeared to be the case to him especially in relation to the identification of Lee. She again interrupted the trial judge who warned her that her behaviour, if continued, would result in her being in serious trouble, including possibly being sentenced to a period in prison. On being asked if she understood, she responded "aye" in an impertinent tone. The following morning, outwith the presence of the jury, the trial judge repeated to the petitioner that his view remained that he considered that she had been withholding information and had behaved in a discourteous and argumentative fashion. He explained why he thought so, told her that he was considering taking action about that and that, if she were to avoid imprisonment, she should refrain from withholding information and answer all the questions.
[4] When her evidence resumed, the petitioner was able to identify all of the accused as people she had seen in her flat. She knew their nicknames too! She was able to identify the sixth accused as the person present when the bag was emptied. However, when asked what size the cannabis bags were, she replied in a cheeky tone: "I dinna ken". Upon the trial judge trying to persuade her to assist the Court by telling what she had seen, she again interrupted him before, after further prompting, being suddenly able to describe the blocks. The advocate depute then asked her about whether she had been supplied with drugs. After some prevarication, she was able to say that the fifth accused supplied her with valium. Once again, the trial judge had to intervene and remind her of her obligation as a witness and once again he was interrupted by her.
[5] When she was cross-examined by counsel for the second accused, she began to interrupt his questioning, talk across him and ask him questions. The solicitor for the fifth accused asked her: "Who did you get speed from?" She said "A source". He said "Would that be a person? She said "Could be, aye." Yet again the trial judge intervened to ask her whether it had been a person who had supplied her and she said that it had been. The solicitor then asked her to tell him what the person's name was. She said: "I can't. It has nothing to do with this". The trial judge told her that she should answer the question. After further questioning to extract the name, she said "I'm not going to divulge that in court. It has nothing to do with this case." The trial judge began to tell her that it was not for her to decide what was relevant to the case. She interrupted him again. The jury were asked to retire and the trial judge once more warned the petitioner of the consequences of her conduct. He was interrupted again and the witness started shouting at him. She was told of the serious risk of imprisonment if her behaviour continued and she refused to answer the question. She persisted in her refusal to answer the question when the jury returned.
[6] The witness was held in custody until the end of the court day when she appeared, represented by a solicitor. The trial judge explained the position to him and the solicitor said on her behalf that the contempt was accepted. In mitigation, it was explained that indirect threats had been made to the petitioner through her brother from the accused. In the petition, the nature of the threats was expanded upon by reference to the accused having associations with paramilitary organisations and having excluded the petitioner from her home. The petitioner had four children, aged 18, 14, 7 and 3 and it was said that they too had been the object of threats and the two youngest had to stay with a relative of the petitioner for their own safety. The petitioner had been very anxious about appearing as a witness and had been prescribed sleeping tablets and anti-depressants. An apology was also tendered. Nevertheless, the trial judge explains:
"I considered that the petitioner's conduct over the period of two days, culminating in her refusal to answer a question despite being warned of the consequences, amounted to a serious contempt of Court. Having regard to the persistent nature of the petitioner's conduct, her various attempts to withhold information from the jury, including her refusal to answer a relevant question, and her truculent attitude and argumentative disposition towards counsel and the presiding judge, I considered that a lengthy custodial sentence was merited."
[7] It was argued before us that the period of custody chosen was excessive in all the circumstances and we were invited to substitute a lesser period in custody. Although the contempt was a serious one, the petitioner was a first offender, who had never even been in a court before. She had apologised for the contempt, which had been prompted by fear as a result of the threats and pressure upon her. Ultimately, she had given evidence against the accused and, to some extent, had purged the earlier part of her contempt. Her ultimate refusal to answer a question was in respect of something relevant only to credibility and reliability.
[8] The High Court is fortunate in that the vast majority of witnesses cited to give evidence do so in an open and helpful manner in accordance with the duties of all citizens in a democratic society. The witnesses normally answer the questions put to them in a courteous manner despite, not infrequently, having to put up with a good deal of inconvenience to their daily lives in having to attend court on repeated and sometimes prolonged occasions. They do so also despite the searching nature of the questions and the probing manner in which they are occasionally put in the context of an adversarial system. It is an essential part of the system that witnesses continue to give evidence in this way, preferably as a result of voluntary action rather than compulsion. In some situations, of course, a witness may be less inclined to provide his or her testimony in this way, especially if it is thought that it will give rise to adverse consequences for relatives or friends. Despite the attendant difficulties, however, whether real or perceived, the duty to state the truth, the whole truth and nothing but the truth remains as an essential element of the obligations of a witness if justice is to continue to be achieved within the current system.
[9] In the present case, the trial was one involving very serious charges. It was extremely important that the witnesses abided by their oaths or affirmations and stated what they knew and did so in the manner in which the courts are accustomed to receive evidence; that is to say in a civilised fashion without truculence, argument or impertinence. The petitioner started her evidence by being deliberately unhelpful; refusing to answer questions directly and declining to reveal the truth, notably in the crucial area of the identification of persons whom she knew to be concerned in the supply of drugs. Despite repeated warnings by the trial judge, her failure to respond properly during the course of her examination-in-chief was compounded by her decision to interrupt him and to conduct herself in a manner calculated to challenge the authority of the Court. Although it is true to say that, upon the following day, the petitioner did offer the Court some assistance by ultimately stating who had been in her flat, it was not long before she reverted to her previous attitude and refusal to help when legitimately cross-examined upon relevant issues by those representing the accused. In those circumstances we are of the view that, notwithstanding the petitioner's lack of previous record, the trial judge was left with no option but to proceed as he did and impose a substantial custodial sentence. Having regard to the repeated and serious nature of the contempt in the face of several warnings from the judge, it cannot be said that the period of custody selected was excessive. The prayer of the petition is accordingly refused.