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Cite as: (2006) SCCR 9, 2006 SCCR 9, [2005] HCJAC 126, [2005] ScotHC HCJAC_126, 2005 GWD 40-736

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Kelly v. Her Majesty's Advocate [2005] ScotHC HCJAC_126 (23 November 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Lady Cosgrove

Lord Emslie

[2005HCJAC126]

Appeal No: XC301/03

OPINION OF THE COURT

delivered by LADY COSGROVE

APPEAL AGAINST CONVICTION

COLIN HUGH KELLY

Petitioner;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Petitioner: Shead; Martin, Johnstone & Socha, Dunfermline

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

23 November 2005

[1] The appellant went to trial in January 2003 at the High Court at Edinburgh on the following charge:

"on 5 August 2000 at Sandport Place, Edinburgh you did assault Elaine Simpson and Andrew Love, both c/o Lothian and Borders Police, Edinburgh and did drive motor van Registered Number E404 DGM onto a pavement on which they were walking, cause said motor van to collide with said Elaine Simpson to her severe injury and permanent disfigurement and also to collide with said Andrew Love to his injury and did attempt to murder them."

[2] The jury found the appellant guilty as libelled. He appeals against conviction on the grounds of defective representation by the defending solicitor-advocate and failure by the Crown to disclose a statement given to the police by the complainer Elaine Simpson.

[3] Before coming to the grounds of appeal it is convenient to set out a summary of the evidence which was before the jury.

[4] On the evening of 4 August 2000 Elaine Simpson and her former partner, Andrew Love, had been together at a public house in Leith listening to friends who played in a band. Both Ms Simpson and Mr Love consumed alcohol in the course of the evening. Although they no longer lived together, they remained friends. They lived in separate houses near each other. To get home from the public house, where they had spent the evening, they required to walk through an area which at that time was a tolerance zone for prostitutes. They were walking in the area of Sandport Place in the early hours of the morning of 5 August 2000. Mr Love was ahead of Ms Simpson.

[5] Ms Simpson said in evidence that she was on the bridge over the Water of Leith at Sandport Place when a vehicle stopped beside her. The male, who was the only occupant of the van, leaned over the passenger seat and asked her if she wanted "business". She told him that she was not a prostitute and the van drove off. It returned almost immediately and the driver asked whether she was sure that she did not want business. She became worried and shouted to Andrew Love. The next thing she knew was that there was a vehicle on the pavement driving towards her with the headlights full on. The vehicle struck her and she landed on the ground. Her leg had completely snapped in two. She was taken to hospital and underwent operations for a compound fracture of her leg.

[6] Andrew Love gave evidence that he was walking home ahead of Elaine Simpson. He was towards the end of the bridge when he turned round and saw Elaine, who was in the middle of the bridge, speaking to somebody in a vehicle. He heard her telling the person "where to go". He saw her speak to the driver of the vehicle on a second occasion. He said he approached the vehicle and saw the driver, who he identified as the appellant, leaning right across to open the passenger door. He tapped on the window and said "What are you playing at?". It seemed as if the driver got a fright and he put the vehicle into reverse and reversed backwards. The witness said that he and Elaine were ready to go off home when they heard the van suddenly accelerating and saw it come towards them. He was struck a glancing blow by it and was thrown to the right-hand side of the road. The vehicle then mounted the pavement and the driver "rammed the car right into Elaine and Elaine went over the bonnet". The van then sped off. Andrew Love was unequivocally of the view that the van deliberately mounted the pavement - "He deliberately done what he meant to do to us". He denied the suggestion, put to him in both cross-examination and re-examination, that he had punched the appellant.

[7] There were two independent witnesses. The first was Terry Dickson. He had been sitting in a parked vehicle. He saw what appeared to him to be an argument between the van driver and the couple. The woman took a kick at the vehicle and it drove off. He then saw it do a U-turn and come back across the bridge. As it came towards the couple it crossed the road and went right up on to the pavement striking the female who was on the inside. The man was also struck and landed in the middle of the road. It was put to the witness in cross-examination that the vehicle swerved before mounting the pavement. His response was that from where he was standing the vehicle definitely crossed over the road, did not swerve and was purposely driven back onto the pavement. The witness telephoned for the emergency services. He also followed the vehicle as it drove through various streets. In the course of his pursuit he spoke on his mobile phone to police officers advising them of the whereabouts of the vehicle and the route it was taking. At one point in his pursuit of the appellant, the appellant doubled back and parked outside the gates of Warriston Crematorium. The witness parked nearby. The appellant again drove off, followed by the witness but the appellant lost the witness shortly thereafter.

[8] The other independent witness was Scott Stevenson. He gave evidence that he was walking across the bridge in question when he heard voices raised in argument. The argument involved a man and a woman and a man in a vehicle. The van driven by the appellant passed him as he crossed the bridge. He then saw the van do a U-turn and go back over to the side of the road that it came from. The witness then heard a shout and a bang and turned round and noticed a woman coming off the bonnet. At that time the van was half on the pavement and half on the road. The witness was asked whether he thought that what he saw was simply an accident. He said he did not see anything that would have caused an accident, and that the van was on the complete opposite side of the road from where it should have been. After the collision the van made off.

[9] The appellant gave evidence at the trial and maintained his innocence of the charge. He claimed that Andrew Love had subjected him to an unprovoked assault. He denied propositioning Elaine Simpson. He said that he opened the driver's window of his van to give Elaine Simpson a light for her cigarette. He then received two punches to the side of his head from Andrew Love. Elaine Simpson then proceeded to run around the front of his van and tried to get in the passenger side. He became frightened and disorientated and drove off in the wrong direction. Shortly thereafter he did a U-turn and drove across the bridge at Sandport Place. He claimed that, as he was doing so, Andrew Love stood in the middle of the road directly in his path causing him to swerve and lose control, as a result of which he mounted the pavement and struck Elaine Simpson. The collision was, according to the appellant, a freak accident.

[10] The appellant was interviewed on two occasions by police officers. The tape recordings of these interviews were played to the jury. He admitted in the course of his evidence that he had lied to the police officers on the first occasion. In the course of the second interview the appellant indicated that he had intended to frighten Andrew Love and Elaine Simpson, and did not mean to hit them. In evidence, however, he sought to explain that as meaning that he had merely hoped to frighten Andrew Love off the road and out of the path of his van.

[11] The appellant having admitted that he was the driver of the van involved in the incident with the complainers, the critical issue for determination by the jury was whether he acted deliberately in driving his vehicle on to the pavement towards them, or whether the incident occurred, as maintained by him, as the result of an accident. While Elaine Simpson frankly admitted that her recollection was hazy in respect of some of the details of what occurred before, during and after the incident, she was clear in her evidence that the vehicle was on the pavement as it came towards her. Andrew Love, who was less affected by drink, was unequivocal in his evidence that the appellant deliberately mounted the pavement and accelerated towards them. As narrated above, there was strong support for that position from the evidence of the two entirely independent eye-witnesses. The inference that the appellant acted deliberately rather than accidentally was accordingly one that the jury were well entitled to draw and, by their verdict, they clearly reached the view that they should do so.

The grounds of appeal
[12] The first ground of appeal asserts that the appellant was denied a fair trial on the ground of defective representation by the solicitor-advocate defending him at the trial. Two particular failures are specified. First, it is alleged that there was a failure to cross-examine Elaine Simpson as to her state of intoxication through drug taking at the time of the incident. It is said that it is now clear from her medical records that she admitted to taking cannabis and ecstasy in the course of the evening prior to the incident. Secondly, it is complained that there was a failure to elicit from the police witnesses the terms of the statements they had taken from the complainer, Andrew Love, in which he admitted that he had assaulted the appellant.

[13] The second ground of appeal is concerned with the same two aspects of the evidence as the first ground and asserts that it was the Crown's duty to examine the witnesses on these matters, and that the Advocate depute's failure to do so resulted in the appellant being denied a fair trial both at common law and under Article 6(1) of the European Convention on Human Rights.

[14] The third ground of appeal is to the effect that the appellant was denied a fair trial by reason of the Crown's failure to disclose a statement given to the police by the complainer Elaine Simpson.

[15] The solicitor-advocate who represented the appellant at his trial submitted a response to the grounds of appeal. He states that he cross examined Elaine Simpson as to her state of intoxication. It is his recollection that the medical reports did contain evidence that she had consumed some illegal drug. However he took the view that if he went into this area it could be deemed to be an attack upon the complainer's character and therefore result in the accused's previous convictions being placed before the jury. In relation to the evidence of Andrew Love, his recollection is that he put to the witness that he said to police officers that he had punched the appellant. The witness denied doing so. A police officer was subsequently called in evidence and was asked about the prior statement of Andrew Love. The officer stated that he did not have his notebook available to him. The notebook had not been made available to the defence in any form prior to the trial. The information about Andrew Love having punched the appellant came from a typed statement which was provided by the Crown. The solicitor advocate cannot now recollect why the police notebook was not available, and cannot recollect why an adjournment was not sought in order to make enquiries as to the whereabouts of the police notebook. He states that it was unknown to him that the Crown had a statement from Elaine Simpson giving an alternative account of the circumstances in which the appellant approached her.

Grounds of appeal 1 and 2: Defective representation and associated failures by the Crown

(a) Elaine Simpson's evidence
[16] Mr Shead, who appeared for the appellant, submitted in relation to the first ground of appeal that cross-examination of Elaine Simpson on the basis of the information contained in her medical records would have demonstrated that she had lied in evidence when she said she had not taken illicit drugs in the course of the previous evening. It was clear from these records that she had admitted to ambulance crew and hospital staff that she had taken both ecstasy and cannabis in addition to alcohol. She had, however, specifically denied in the course of cross-examination that she had taken anything else that might have affected her recollection. The focus of the cross-examination had been to test the reliability of the complainer's recollection of the incident, but her credibility could also have been challenged if this matter had been pursued with her.

[17] The response from the solicitor-advocate to the criticism made of him in this regard was, according to Mr Shead, entirely misconceived. The line of cross-examination contended for could not on any view have been said to be an attack on the complainer's character. Even if it could have been so categorised, there would have been no serious prospect of the result feared, namely the judge allowing the attack on the accused's character by exposure of his previous convictions: any such attack would clearly have been objectionable as being out of all proportion to the nature of the attack on the complainer (Leggate v H. M. Advocate 1988 S.C.C.R. 391). It was quite wrong therefore to assert that the risk was so great that the only responsible course open to the person conducting the trial was to refuse to adopt the line of cross-examination suggested. It was further submitted in this regard that it was no answer to the criticism made to say that a tactical decision had been taken not to raise this issue. It was for the court to evaluate the decision and decide how it should be categorised.

[18] The Advocate depute in response challenged the assertion that Elaine Simpson's evidence amounted to a clear denial that she had taken controlled drugs. No issue of drug taking was raised in examination-in-chief, the sole focus being the amount of drink taken. The court's attention was drawn to the precise terms of the questions put and answers given in the passage in cross-examination (at p. 67 of the transcript) relied upon by Mr. Shead. The witness was reminded that she had referred to having had six pints to drink that night, and she agreed that she might have had that quantity - "That is what I might have had that night". The following question was then put to her, "You might have had, and was it just pints of beer that you had that night?". Her response was, "That is correct, yes". She was then asked, "You hadn't taken anything else which would have affected your recollection at all?". Her response to that was, "No".

[19] The Advocate depute contended that the witness was here talking about her alcohol consumption. There had been no reference to drugs. What she meant to convey in her final response was that she did not have any alcohol beyond the six pints of lager to which she had earlier referred. He refuted the suggestion that the passage could be read as an unequivocal denial of any drug taking. At its very highest, read in its context it was equivocal as to whether the witness was referring to drugs. In any event, if ex hypothesi the passage quoted did amount to a denial of drug taking, that scarcely impacted on the crucial issue for determination by the jury in this case. It was not suggested that the appellant's defence was not placed before the jury, and even if the solicitor-advocate acting for him proceeded on a wrong view of the law in relation to the danger of exposing the appellant to questions about his previous convictions, that was not sufficient to support an Anderson ground of appeal.

[20] We agree with the Advocate depute that, on a fair reading of the passage we have quoted, it cannot be asserted that the complainer Elaine Simpson was unequivocally denying that she had taken drugs. There is nothing in our view to indicate that the last question was clearly directed to drug taking; and she may well have understood that question to relate to other forms of alcohol. We observe in this connection that several references in the medical records to this topic suggest that the witness must have volunteered information both to ambulance crew and hospital staff and so was not disposed to hide the fact that she had taken illicit substances. While questions in relation to drug taking might well have been legitimately pursued, it is important to have regard to the fact that this witness had very frankly conceded that there was a lot that she could not remember from before, during and after the incident. Having made the important concession that her memory of the incident was not good, it is difficult to see how any admission that she had taken drugs would have materially affected the issue of the reliability of her evidence.

[21] In any event, as was made clear in Anderson (JM) v H. M. Advocate 1996 JC 29, it is only where there has been a failure to present an accused's defence that it can be said that he has been denied the right to a fair trial. The material issue in this case was whether the collision involving the appellant's van was accidental or deliberate. All other issues were, in our view, peripheral to that main issue. The appellant was led in evidence at the trial to explain his position that the collision was accidental. Any failure by the solicitor advocate can, in our view, only be said to have been a failure to use additional material bearing on an entirely peripheral matter which could have been used to supplement the attack on the reliability of a complainer who had already made it perfectly plain that her recollection of events was far from perfect. Even if such a failure was based on an erroneous view of the law, this would fall short of meeting the test as narrowly expressed in Anderson (Jeffrey v H.M. Advocate 2002 S.C.C.R. 822, per Lord Kingarth at para. 5). As the Lord Justice Clerk stressed in Ditta v H. M. Advocate 2002 S.C.C.R. 891 at para. 17:

"This court will not entertain Anderson appeals where all that is suggested is that with the benefit of hindsight and further investigation it can be seen that the defence could have been stronger or that better judgments could have been made on strategic and tactical matters."

[22] We also reject the assertion contained in ground of appeal 2, which was only faintly argued before us, that it was the duty of the Advocate depute to examine the witness on this matter and that his decision not to do so resulted in the appellant being denied a fair trial. Had there been a plain contradiction between the evidence given by the complainer and the information contained in the medical records, there might have been an obligation on the Crown to correct such an evident inaccuracy. However, in the absence of a clear denial by the complainer that she had taken drugs, it cannot be said that there was an obligation on the Advocate depute, who may well have understood that that line of questioning related to drink, to bring out the contents of the hospital records.

(b) Andrew Love's prior statements
[23] Mr Shead submitted that both the solicitor-advocate for the defence and the Advocate depute were under an obligation to challenge the denial by Andrew Love that he assaulted the appellant when he had previously admitted in the course of a police interview (a copy of which was available to the defence) that he had punched him twice. When it was put to the witness that he punched the appellant twice when he wound his window down, he said that he never laid a hand on him. He was asked if he had told police officers that he punched him and his response was, "No. Not that I recall. No." In that situation, evidence about what he had told the police in this regard was material because it would have demonstrated that he had lied under oath when he denied any assault. This was not a peripheral issue because it raised a question as to the witness's credibility and the challenge to the credibility of the Crown witnesses was, in the circumstances of this case, an essential aspect of the defence. Both the solicitor-advocate and the Advocate depute were under an obligation to pursue this matter because there was a sharp contrast in the evidence about how the incident began. The effect of their failure to do so was that the appellant had been deprived of the opportunity of having a legitimate line of cross-examination as to what triggered the incident properly pursued. This court could not say that it would not have made any difference to the outcome of the case if the witness had been so challenged. While an attempt had been made to repair the damage by calling one of the police officers who had taken the statement from the witness, he had been unable to assist, having failed to bring the relevant notebook to court.

[24] In response, the Advocate depute indicated that he had a note to the effect that the solicitor-advocate for the appellant had indicated, when asked whether he wished attempts to be made to have the notebook retrieved, that he did not wish anything further to be done. Further, the jury had the appellant's evidence that he was punched twice by the witness. The injuries he spoke to having sustained as a result were very minor - a scratch behind the ear and a red mark on his armpit. If his police statement had been put to Andrew Love, doubt may have been cast on that part of his evidence, but it was difficult to conceive of the jury rejecting his evidence in its entirety, given the clear supporting evidence from the two independent witnesses. It had to be borne in mind that the statement in question was given at a time when his close friend was lying in hospital seriously injured. The defence decision not to seek an adjournment for recovery of the notebook was a valid tactical judgment and one that the solicitor-advocate was entitled to take.

[25] An examination of the transcript of Andrew Love's evidence discloses that the allegation that he punched the appellant was pursued to a certain extent during cross-examination. While the matter was not pressed to the extent that it might have been had the prior police statement been available, it is not in our view possible to assert that the failure to do so resulted in the appellant's defence in respect of the crucial issue that arose for consideration by the jury not being placed before them. Had this matter been pressed, the appellant's evidence that he was punched might have been confirmed, but we consider that in that event a clear motive of revenge for an otherwise inexplicable attack might have presented itself to the minds of the jury. It follows that that approach may not necessarily have been to the appellant's advantage.

[26] In our opinion, the criticism made of the solicitor-advocate for the defence relates to a decision that lay well within the range of his professional discretion. Any failure by him in relation to the relevant statement can, in our view, only be said to have been a failure to attack the credibility of the witness in relation to an incidental matter with wholly uncertain prospects of success and with a real risk of prejudice to the accused's defence. We observe in this connection that any injury the appellant suffered was minor and the acts libelled only occurred after he had driven away from the scene, done a U-turn and driven back towards the complainers. In our opinion, any such failure falls short of meeting the test in Anderson (Jeffrey v H.M. Advocate (supra) and Ditta v H.M. Advocate (supra)).

[27] Further, having regard to the defence concession at the time that no more required to be done in relation to the missing police notebook, it cannot in our view be asserted that any blame attaches to the Crown in this regard. Accordingly we consider that this ground of appeal is not well-founded.

Ground of appeal 3
[28] The third ground of appeal relates to a statement given by the complainer Elaine Simpson to CID officers who attended at the Royal Infirmary, Edinburgh at 04.40 hours on 5 August 2000. The statement, so far as relevant for present purposes, was in the following terms:

"I have known Andrew Love for 12 years. We lived as man and wife for 7 years, although not married. ...

Tonight (Saturday 4 August 2000) we went out quite sharpish, about 9 p.m., we had a drink in the Village Inn ... We stayed there till late, early morning.

We walked along Queen Charlotte Street, past the 'Dirty Windaes', that wiy.

As we passed the Raj Restaurant, at the bridge (Sandport Place, Edinburgh) a white van drew alongside. I remember Andrew talking to the driver, at the driver's window, standing near to the middle of the road. There was an argument between Andrew and him. I don't know what it was about, I did not see the driver, I could not describe him, it was an Escort type of van. I seen the van drive off towards Ferry Road.

A few seconds later the same van came back, was up on the pavement coming towards me, not at a very rapid speed, I don't know what happened after it hit me up in the air.

I have no doubt he came back and that it was deliberate when he hit me.

The last thing I remember is a man sitting next to me with the ambulancemen.

I could not identify the driver of the car."

[29] The solicitor advocate who represented the appellant indicated in his letter of response to this ground of appeal that the existence of this statement was unknown to him at the time of the trial.

[30] Mr Shead's submission in support of this ground of appeal was that the statement in question ought to have been disclosed to the defence by the Crown. The account given by the complainer in the statement contained no reference whatsoever to the sinister implications of how the incident began as described in her evidence. Had it been available, it could have been used by the defence to demonstrate the complainer's inconsistency in that regard. The Advocate depute had commended to the jury the cogent evidence of Elaine Simpson and that was, in the circumstances, a plain distortion of the picture. The act of the Advocate depute in seeking a conviction without having produced or disclosed the existence and content of the statement was incompatible with the appellant's right to a fair trial under Article 6(1) of the Convention. It followed that the he had no power under section 57(2) of the Scotland Act 1998 to continue with the prosecution and seek a conviction (Sinclair v H.M. Advocate 2005 SCCR 446 per Lord Hope of Craighead at para. 37). The court had to assess whether the evidence that was absent was trivial. That conclusion could not be reached in the circumstances of this case. The question of how the incident began was of importance in relation to the crucial issue of the appellant's mens rea. The statement was also material to the issue of the witness's credibility and reliability. The verdict was a majority one and it was impossible to assert that the cross-examination of the witness by reference to the statement, thereby exposing her credibility to challenge, would not have made a difference to the outcome. The approach adopted by the court to non-disclosure has been to refuse to indulge in speculation as to how the failure might have impacted on the jury and to quash the conviction. Reference was made in this connection to McKenzie v Jinks 1934 J.C. 48 and Hogg v Clark 1959 J.C. 7, both cases in which the sheriff in a summary trial was held to have improperly excluded a competent line of evidence. In Hogg v Clark the Lord Justice General (Clyde) said, at page 10:

"The test for this Court, therefore, is - can we say that the exclusion of the cross-examination in question might not possibly have affected the conclusion arrived at by the Sheriff-substitute? For it is only if we can negative that possibility that this conviction can stand."

That test was approved by Lord Rodger of Earlsferry in the context of non-disclosure in Holland v H.M. Advocate 2005 SCCR 417 at para. 82.

[31] The Advocate depute in response submitted that it was important to consider the context in which the witness gave the statement in question. She was admitted to hospital at 02.36 hours. She had a compound fracture of the left leg and, according to the medical records, was given 2.5 milligrammes of morphine for pain. She had not yet been operated on when the police officers arrived to interview her. At that stage, the identity of the appellant was not yet known and the officers were seeking information to enable them to trace the driver of the vehicle involved. The statement was not in any way detailed and it could only be said to be inconsistent with the witness's evidence in relation to a peripheral matter. What she said about the salient features of the incident was entirely consistent with her evidence in court. The statement would therefore have been of limited use in cross-examination. It followed that there was no unfairness to the appellant and no miscarriage of justice.

[32] In determining whether the act of the Advocate depute in seeking a conviction without having disclosed the witness's statement was incompatible with the appellant's Article 6(1) Convention right to a fair trial the critical issues include the materiality of the statement in question and the nature and extent of any prejudice suffered by the appellant as a result of non-disclosure. The obligation on the Crown is to disclose anything that would be likely to be of material assistance to the proper preparation or presentation of the accused's defence: Holland v H.M. Advocate, (supra) per Lord Rodger of Earlsferry at para 64 and Sinclair v H.M. Advocate, (supra) per Lord Hope of Craighead at paras. 33 - 35.

[33] Bearing in mind the nature and extent of the obligation as explained by the Privy Council, we are of the opinion that it cannot be asserted that non-disclosure of the statement in question constituted a breach of the appellant's right to a fair trial. In particular, we reject the submission that the statement contains material that was plainly likely to be of assistance to the defence. The particular inconsistency founded upon was the reference in the statement to the incident beginning with an argument between Andrew Love and the appellant, whereas in her evidence the witness spoke to the first contact with the appellant being when he approached her before Andrew Love entered the scene. While she makes no reference to having been approached for business, there is, in our view, nothing said that is inconsistent with that position. The statement is not in any way a detailed one and we do not find that at all surprising, having regard both to the complainer's circumstances and the police officers' purpose at the time it was taken. We do not consider that, having regard to her circumstances at the time, cross-examination on the very limited inconsistency would have assisted the defence to undermine the witness's credibility or reliability to any degree. On the contrary, we are of the view that had the statement been available, it might well have been used by the Advocate depute to demonstrate to good effect the essential consistency of the witness's position in relation to the crucial issue in the case. The statement was entirely consistent with the witness's evidence in relation to that and, even in her injured and drowsy state, she was clear that the appellant came back and drove his vehicle deliberately towards her. In these circumstances, we reject the submission that non-disclosure of Elaine Simpson's statement gave rise to any real risk of prejudice to the appellant.

[34] We also consider it significant that this witness's evidence was not essential to the proof of the Crown case. Andrew Love and the two independent witnesses gave evidence that would have amounted to a clear sufficiency. Further, the appellant conceded in the course of his second police interview that he had "meant to frighten them (the complainers) rather than actually hit them." The jury were well entitled to reject the implausible interpretation of that statement suggested by him in evidence, namely that what happened was some sort of "freak accident", and to find him guilty on the basis of the clear and consistent Crown evidence.

[35] In all these circumstances we are of the opinion that the appellant was not denied a fair trial, and that as a consequence there was no miscarriage of justice. We shall accordingly refuse the appeal against conviction on all three grounds.