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Sinclair v. Her Majesty's Advocate [2004] ScotHC 46 (01 July 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Hamilton

Lord Cameron of Lochbroom

Appeal No: XC118/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

APPEAL

ALVIN LEE SINCLAIR

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Drummond Miller

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

1 July 2004

[1] The appellant was found guilty after trial of a charge in the following terms:

"On 6 August 2000 at 3 Ivanhoe Drive, Kirkintilloch, you did assault Graeme Tennent, strike him on the head with a hammer and repeatedly with a pair of scissors and repeatedly punch him on the head, all to his severe injury, permanent disfigurement and permanent impairment".

[2] Evidence was given at the trial that the complainer and his then girlfriend, Pamela Ritchie, had spent the evening together in Kirkintilloch. Some time after 9 p.m. they parted company after quarrelling. The complainer later made his way to the home of a friend at 3 Ivanhoe Drive, where he found that his friend, Pamela Ritchie, another man and the appellant were in the living room. The complainer sat down on a sofa and fell asleep. While he was sleeping a fight broke out between Pamela Ritchie and another female, Stacey Ritchie, who had arrived at the house. This began as a verbal argument, but became physical, with both women pulling hair and delivering punches. Pamela Ritchie then decided to wake the complainer and asked him to leave the house with her.

[3] The complainer gave evidence that soon after he wakened, the appellant began to threaten and attack him. He said that he heard the appellant say to him: "I'm going to fucking do you", and that as he was attempting to get to his feet, the appellant hit him with a ball-hammer. The blow landed on the complainer's jaw. There was then a struggle between the two men, in the course of which the appellant punched the complainer several times. He then struck him two or three times with a pair of scissors in the area of the head. One blow was aimed at the complainer's left eye and the other blows were aimed at his face. The complainer was bleeding profusely. An ambulance was summoned and he was taken to hospital where he was detained for four days. He was found to have a compound fracture of the left mandible, and four plates had to be inserted in his jaw. He also had a penetrating injury to his left eye which extended to the full depth of the eyeball with loss of sight. About two months later the eye was removed and replaced with a synthetic one. The complainer also had multiple facial injuries, including several lacerations. There was medical evidence that the complainer's injuries were consistent with blows from a hammer to the jaw and from a pair of scissors to the face.

[4] It may be noted at this point that the appellant not only denied the assault but claimed that the complainer had attacked him by punching him, and that a struggle then ensued. His explanation for the complainer's injuries was that the complainer hit his jaw on falling against the fireplace in the course of the struggle, and that broken glass lying on the floor had caused both the facial lacerations and the eye injury. He denied having either a hammer or scissors in his hand.

[5] The Crown relied for corroboration on evidence given by Pamela Ritchie. The ground of appeal with which we are concerned arises out of what occurred in the course of her evidence. In her examination in chief by the Advocate depute she stated that she arrived at the house between 9 and 10 p.m. The complainer arrived some 20 minutes later. She was affected by drink and was tipsy. The fight between her and Stacey Ritchie took place in the living room. By the time when the complainer woke up "things head calmed down a bit". She did not speak to him at that point. "I just seen a bit of commotion and seen him being hit with a hammer over the head" by the appellant. She did not see exactly where the hammer hit him on his head. He was standing in the middle of the living room. She jumped to her feet to try to stop what was happening. Then she saw him being stabbed more than once on the head with a pair of scissors. This was just above his neck. She intervened. The appellant left the house, and she asked the householder to call an ambulance. She agreed that the police had spoken to her that night about what had happened. She said that she told the police what she had seen. Asked whether she had mentioned a hammer to them, she said that she could not remember what she said to them. She was in shock. She was shown two hammers, which were Crown productions. She stated that, "due to the size of it", one of them was more than the other like the hammer which had been used.

[6] In cross-examination she accepted that she had never heard anything being said which gave cause for her to believe that the complainer was going to be attacked. She accepted that the fight between her and Stacey Ritchie perhaps went into the hallway. She again accepted that in the house she had explained to the police what had happened. It was "basically what I am telling you today". Asked whether she had mentioned that the appellant had struck the complainer with a hammer and a pair of scissors, she answered in the affirmative. Asked again whether that was what she said to the police, she replied: "I possibly would have said that to the police, yes. That is what happened. I would have said that to the police... The police asked me what I saw and I told them what I saw". When it was put to her that she had only told the police about the scissors, and that she told them that she had been fighting in the hallway and did not know what had happened at the start and only saw the complainer being struck with a pair of scissors, she replied: "It is very difficult for me to remember what I said to the police at that time. I was under a great deal of shock. But what I would have said to them, what I seen at the time". She agreed that two detectives had later taken a statement from her at Glasgow Royal Infirmary. She said: "I would have told them what I seen, yes". When it was suggested to her that she had only told the police about scissors and had not mentioned the hammer, she responded that that was incorrect. She agreed that some months later at she had gone to the office of the procurator fiscal. She was then asked to confirm what she had said in her statement to the police. Asked whether there was reference made in her statement to a hammer and scissors, she replied: "As I remember, yes". She did not know what happened to the hammer or to the scissors. She had seen a pair of scissors on a coffee table in the living room earlier that evening. She insisted that she had seen how the incident between the complainer and the appellant had started.. Once again it was put to her that the appellant had not struck the complainer with a hammer. She said that she had said to the police that she had seen the appellant doing so.

[7] In re-examination the witness stated that she was in shock when she was at the Royal Infirmary giving a statement to two detectives. She thought she mentioned a hammer to them. When she gave a more formal statement at Kirkintilloch Police Office she would have mentioned a hammer to the detectives who noted that statement. When the Advocate depute suggested to her that there was nothing in her statement at the police office about a hammer, she said that she could not remember. She said that if the detectives had asked her about a hammer she would have said that she had seen it. She could not remember if she was definitely asked about the hammer. If she was not asked that question, she would not have mentioned it.

[8] In this appeal we have before us two police statements which were signed by the witness. The first is dated 6 Aug 2000 and was taken by a police officer at the Royal Infirmary. In the course of that statement the witness was recorded as stating that while she was fighting with Stacey Ritchie, she turned round and saw the appellant stabbing the complainer once on the face with a pair of scissors. Thereafter the appellant disappeared from the room. She tried to find the scissors, but could not do so. At the end of the statement she said that while she was in the ambulance on the way to the Royal Infirmary the complainer had told her that the appellant had hit him on the head with a hammer. She added that she had not seen this and had not seen any hammer lying about in the house. The second statement is dated 8 August 2000 and was taken by a police officer at Kirkintilloch Police Office. In that statement the witness said that she had been fighting with Stacey Ritchie on the couch and she saw the appellant repeatedly stabbing the complainer on the head and face with scissors. She added that there had been scissors on a table in the living room. It was not true that she had tried to find the scissors. She knew that the police had been trying to do so.

[9] In the ground of appeal it is maintained that the appellant was denied a fair trial by reason of the Crown's failure to disclose the copies of these statements. It is said that had their content been known the cross-examination of the witness would have followed a very different course, which would have been likely to have had a material bearing on the jury's assessment of her credibility and reliability. In any event the Advocate depute had had a duty to put the statements to the witness in order that a jury could make a proper assessment of her evidence. The ground of appeal then states:

"The decision of the Crown not to make the statements available to the defence was a violation of its duty at common law and the obligations laid upon the Lord Advocate by section 57 (2) of the Scotland Act 1998 and section 6 of the Human Rights Act 1998. Reference is made to the right to a fair trial guaranteed by Article 6 (1).

Separatim. The conduct of the Crown in failing to disclose the statements or put their content to the witness was oppressive and represented an abuse of process".

[10] A number of matters were not in dispute. First, it is clear that the precognitions which had been taken from the witness Pamela Ritchie for the Crown and for the defence did not disclose that she would give evidence that the appellant had attacked the complainer with not only scissors but also a hammer. Thus the fact that she gave evidence that the appellant attacked the complainer with a hammer came as a surprise at the trial to both the Advocate depute and the solicitor advocate who appeared for the appellant. Secondly, it is not in dispute that the Advocate depute did not have with him copies of the police statements to which we have referred, and that the exact terms of the statements were not known to the defence. Thirdly, the solicitor advocate for the appellant did not ask the Advocate depute for a sight of the statements or invite him to make them available so that they could be produced for the defence. He did not invite the trial judge to adjourn the trial the so that they could be produced.

[11] For the appellant Mr Shead referred to Mcleod v H M Advocate (No. 2) 1998 JC 67 in which the Lord Justice General recorded in his opinion (at page 79B) that the Crown accepted that it had an obligation to disclose any information which supported the defence case and that this extended to information which supported any known or stateable defence or which undermined the Crown case. Similar statements as to a "golden rule" were made in respect of the law of England in the recent decision of the Appellate Committee of the House of Lords in R v H [2004] 1 All ER 1269, and the law of Canada in R v Stinchcombe [1991] 3 S C R 326. In McLeod the Lord Justice General noted at page 71C that the Crown accepted that, subject to cases in which public interest immunity could be claimed, it would no longer be right to claim confidentiality in respect of police statements.

[12] Mr Shead submitted that, despite what had been stated in McLeod as to the Crown's practice, the fact that in the present case the police statements had not been produced in advance of the trial showed the lack of a system for the disclosure of all relevant previous statements in accordance with the duty of the Crown. As a result of this failure the Advocate depute had been disabled from dealing with the conflict between the witness' evidence and her previous statements in a satisfactory manner. He claimed, under reference to Orr v Brown 2003 SCCR 91 that in recent years some procurators fiscal had taken a restrictive approach to the production of documents such as the police statements of Crown witnesses.

[13] Mr Shead went further and commented that it was unsatisfactory that the Crown had the burden of determining whether a police statement was or was not material, or that such a question should be left to arise in the course of a trial. It was also unsatisfactory that the defence had to identify reasons for justifying an application to the court for the recovery of documents such as police statements. He did not ask the court to innovate on the decision in Mcleod or suggest that it should be reviewed by a larger court. However, he submitted that the court should recognise a limited extension, namely that the Crown had a duty to produce the police statements of Crown witnesses as a matter of course. This would mean that the Crown would not have to exercise their judgment as to whether or not a particular police statement was material. Such a duty would represent a natural evolution of the common law or article 6 of the European Convention on Human Rights. He pointed out that in R v Stinchcombe Sopinka J, delivering the judgment of the court, stated at paragraph 12 that "the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done".

[14] Mr Shead submitted that if the statements of the Crown witnesses had been produced in advance of the trial, the situation in the present case would not have arisen: the Advocate depute would have realised that there was a discrepancy between the evidence of the witness and what she had said in her police statements. Consistently with the duty of Crown, the Advocate depute would have led evidence as to the terms of these statements. This might have resulted in the acquittal of the appellant. In any event the Crown's failure to disclose the police statements had disabled the defence to such an extent that, on this basis also, there had been a miscarriage of justice. The defence was interested in exploring the discrepancy, but could not put to her what she had said in her police statements. It would have been unwise for the defence to call on police witnesses to give evidence as to these statements without knowing what they contained. The evidence of the witness was essential for corroboration of the evidence of the complainer that he had been attacked by the appellant with both scissors and a hammer. The credibility and reliability of the witness, who had been so emphatic, would have been affected. Her relationship with the complainer was a reason for her not telling the truth. It might have proved unnecessary for that the appellant to give evidence in his defence.

[15] We are not satisfied that the fact that the police statements were not produced before the trial was due to any breach of duty on the part of the Crown. The decision in McLeod provides no support for the submission that the police statements of Crown witnesses should be produced in advance of the trial as a matter of course. There was nothing to suggest to the Crown that the witness was liable to add to the description of the incident which she had given in her police statements.

[16] As regards what happened in the course of the trial, it was obvious to the defence during the examination in chief of the witness that she was now saying that the appellant had attacked the complainer with a hammer before doing so with a pair of scissors. If the defence had requested the Crown to produce the police statements, the Advocate depute would no doubt have considered himself bound to accede to that request. It may be noted that in McLeod the Lord Justice General pointed out at page 80 that under the Scottish system it could be expected that the defence would have access to the documents which were material to the preparation and presentation of their case. He continued:

"If, however, it emerges at the trial that something has gone wrong and a material statement or other document comes to light at that stage, our procedure is well able to afford the necessary remedy, whether by adjournment, permission to lead additional evidence or, in an extreme case, by desertion of the diet"

Whether such a request is made in the particular case would, no doubt, depend on whether it was considered to be advisable for the conduct of the defence. We note that in the present case there was a fundamental difference between the complainer and the appellant as to what happened between them. This was reflected in the cross-examination of the witness, in addition to the suggestion that she was not even present at the beginning of the incident. It is clear that both the Crown and the defence challenged the witness with having gone beyond what she had said to the police. The defence would have had to consider whether evidence as to the terms of the police statements would have assisted the Crown in respect that they showed that the witness had consistently described the appellant as the aggressor. In the event, as we have noted earlier, the defence did not request the police statements. In these circumstances we consider that there was no breach of duty and no miscarriage of justice arising from the fact that the Crown did not produce them.

[17] We should add that the Advocate depute assured the court that there had been no departure from the position which the Crown had stated in McLeod. He confirmed that the Crown had a duty to disclose any information which supported the defence case, including information which supported a known or stateable defence, or which undermined the Crown case. This duty subsisted from the outset and throughout the leading of evidence. The Advocate depute also drew our attention to a proposed practice note of the Crown Office relating to list of witnesses and witness statements which was the subject of current consultation. He pointed out that this practice note was intended to improve the efficiency of the trial process.

[18] At the outset of his submissions Mr Shead indicated that he proposed also to argue that the trial judge ought to have intervened to order the Crown to produce the police statements. However in the event Mr. Shead did not do so.

[19] We will accordingly reject the grounds of appeal in so far as they relate to the conduct of the Crown and the trial judge. The remaining ground of appeal relates to a criticism of those who represented the appellant in the trial. We will continue this appeal so that this final matter may be dealt with.