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Bishop v. Procurator Fiscal [2005] ScotHC HCJAC_40 (11 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Macfadyen

Lord Carloway

[2005HCJAC40]

Appeal No: XJ531/03

OPINION OF THE COURT

delivered by LORD CARLOWAY

REFERRAL

SCOTTISH CRIMINAL CASES REVIEW COMMISSION PROCEEDING BY WAY OF BILL OF SUSPENSION

in the cause

MICHAEL BISHOP

Appellant;

against

PROCURATOR FISCAL, Tain

Respondent:

_______

Appellant: M. Meehan, Advocate; Drummond Miller

Respondent: Di Rollo, Q.C., A.D.; Crown Agent

11 March 2005

The Stated Case
[1] On 11 January 2000, the appellant was convicted by the Sheriff of Grampian, Highland and Islands at Tain of a charge which libelled that :

"on 29 October 1998 in ... Tain, Ross and Cromarty, you did indecently assault L and did handle her breasts over her clothing and place your hands between her legs."

The evidence at the trial had commenced with the lodging of a joint minute narrating that both the complainer, L (aged 18), and the principal corroborating witness, K (aged 26), had a mild degree of mental handicap, but understood the difference between truth and falsehood. The first witness was M (52), the mother of K and guardian of L, both of whom lived with her. M regarded both the girls as her daughters. M was asked about K and L and said that they were a "a wee bit slow" and could neither read nor write. However, she said, neither had any difficulty in telling the truth and they did not make up stories or tell lies. The reason why M was asked to express a view on the general credibility and reliability of the witnesses appears to have been a concern by the sheriff over whether the witnesses were generally competent to give evidence, having regard to their level of intellectual functioning, rather than any anxiety to have a view on whether their prospective evidence ought to be regarded as credible.

[2] On the merits of the case, M said that she was in the habit of hiring video cassettes from the appellant (aged 50), who operated a van from which he traded. On the date libelled, M went out to play bingo. She had been aware that L was planning to visit the van to pay off a hire charge. On her return home from the bingo, M found L in tears, complaining that the appellant had been feeling her breasts and bottom. L gave evidence that she had gone out to the van and the appellant had touched her breasts and between her legs on top of her clothes, without her consent. This had been in the van. She said that the appellant had touched her, having approached her from behind. K had managed to jump from the van, but L could not do so because the appellant had a hold of her. K spoke to going to the van and the appellant touching L between her legs and on the breasts inside her clothing. She too said that she had jumped from the van and had seen L crying. According to K, the appellant had approached L from her front. The appellant was interviewed about the episode only on 5 March 1999. In that interview, and presumably also in evidence, the appellant accepted that both the girls had come into his van on the relevant date. He protested that the allegations of indecent assault were without foundation, accusing the girls of being "problematic customers", who had hired, but had not returned, video cassettes.

[3] The Sheriff convicted the appellant and, on 8 February 2000, sentenced him to three months imprisonment. The appellant applied for a stated case and was released on interim liberation. In the stated case, the Sheriff made findings about the girls having a mild degree of mental handicap but being able to understand the difference between truth and falsehood. Specifically, relying upon M, he found that:

"(5) Neither girl has a history of making up stories or telling lies."

The sheriff continued by making a finding that :

"(9)...The appellant touched L on her breasts and between her legs. The appellant deliberately touched L in this manner for his own sexual gratification. L did not consent to any form of sexual touching. L was distressed and struggled to get away from the appellant."

In the Note appended to the case, which was directed towards the issue of whether the accounts given by the girls were sufficiently similar to merit a conviction, the Sheriff explained that he found both girls credible and reliable. There were differences between their accounts but the Sheriff regarded the differences as matters of detail, which did not effect his acceptance of their accounts of sexual assault in terms of the libel. He was of the view that their testimony, taken along with that of M concerning distress, satisfied the test on conjunction of testimony. Notably, he said that:

"Neither girl was subtle enough to practice a deception of the sort suggested by the appellant".

[4] Leave to appeal against conviction was refused by the single "first sift" judge on the basis that the conjunction of testimony was sufficient to warrant the conviction. The second sift judges agreed. Final refusal of leave to appeal was intimated on or about 6 June 2000. This refusal would have resulted in the issue of a warrant for the appellant's arrest.

The Commission Referral
[5] About a week after the intimation of the refusal, the appellant's law agent discussed with him the issue of his surrendering to the warrant, which he subsequently did. It was at this stage that the appellant said that, on the day of his conviction, he had been informed by a friend that, in or about 1988, a third party, G, had previously been falsely accused of rape by K. The appellant applied to the Scottish Criminal Case Review Commission. After initial inquiries of the appellant and his friend, the Commission obtained a precognition from G. G confirmed that, when he was about 18 and lived in the same street as K and her mother, M, the police had interviewed him in connection with an allegation that he had raped K. G said that he had been playing football at the relevant time and nothing more had come of the allegation, so far as he was concerned. Enquiries by the Commission of the Northern Constabulary did not provide any useful information. The Commission then sought information from M, who, not surprisingly, did not want to become further involved. The Commission proceeded to have M precognosced on oath before the Sheriff at Tain on 29 October 2002. M re-iterated the generality that neither K nor L made up stories. M did accept, however, that K had falsely accused G of rape. The basis for that concession was, at least in part, that K had been taken to a doctor and no medical evidence of sexual interference had been found. However, M went on to explain that K had only been about twelve at the time, with a mental age of about six. K had told M that G had taken her by the hand to a secluded spot in the country. K had shown M the spot and M did not think that K could have located it on her own. She was never allowed to wander about on her own. M thought that G had probably taken her there, possibly for sexual purposes. Thus, M's view was that the story K had told her had been broadly true, apart from the rape element. In that regard, she explained that K had not known what "sex" was at the time. In short, M did not think that K had been lying about the incident. Furthermore, M did not think that she should have revealed this episode at a court hearing over a decade later, when asked if K made up stories, because:

"what was the sense of dragging someone else's name into it that had nothing to do with it. That boy...[has] a wife and family now and there's no way I was going to take him into court over that. I wasn't going to upset his wife and his kids".

[6] In March 2003, the Commission decided to refer the appellant's case to the Court in terms of section 194B of the Criminal Procedure (Scotland) Act 1995 (c. 46), since it reached the view that the evidence (the statement of G and the precognition on oath of M) was: (a) capable of being regarded as credible and reliable; and (b) likely to have had a material bearing on, or a material part to play in, the Sheriff's determination of a critical issue at the trial. In particular, the Commission concluded :

"as the evidence against the [appellant] in relation to charge 1 consisted of the complainer's evidence and that of K, the credibility of K was a critical issue at the trial. In relation to the sheriff's determination of that critical issue...[K] was in his view a credible witness...In relation to whether the evidence of a previous false allegation is likely to have had a material bearing on, or material part to play in, that determination of that critical issue, the Commission notes that the sheriff found as proved that "Neither girl has a history of making up stories or telling lies". It is the Commission's view that the sheriff would not have been entitled to make that finding in fact if he had been aware of the evidence of a previous false allegation. And, while the Commission notes the remoteness in time between K's allegation and the incident...it is the Commission's view that, given that the sheriff specifically referred to what he took to be the fact that neither girl has a history of making up stories or telling lies, and given also the discrepancies between the evidence of the two girls, the evidence of a previous false allegation is likely to have had a material bearing on, or material part to play in, the sheriff's determination of K's credibility".

The Commission was concerned, therefore, that there might have been a miscarriage of justice.

The Appeal Procedure
[7] At a procedural hearing on 12 June 2003, the court allowed the appellant a period of two months in which to lodge grounds of appeal. This was later extended by a further month. On 11 September 2003, the appellant lodged an application for a stated case referring to the new evidence. However, when the case called on 30 October 2003, the court was advised that the appellant wanted to raise another point concerning the Sheriff's private listening, with earphones, to the tape of the appellant's police interview, the reproduction in open court having been inadequate in audio terms. The court considered that this additional point ought to be focused in a Bill of Suspension and permitted the appellant to lodge such a Bill. Meanwhile, the Sheriff reported upon the new application for a stated case and related Commission report as follows:

"I am concerned at what the Commission writes...: "It is the Commission's view that the sheriff could not have been entitled to make that finding in fact if he had been aware of the evidence of a previous false allegation." Of course I would not have been entitled to make the finding in the terms I did; and I would not have made it. Non constat that I would have found K to be an untruthful witness or an unreliable one. It should not be forgotten that K was a much older girl, that her evidence was corroborated by that of the complainer L, who was extremely distressed after the incident. M's credibility has not been challenged. Nor should it be forgotten that I saw and heard the witnesses."

[8] On 30 April 2004, the Court expressed concern that the appellant had not obtained an affidavit from G, nor had any medical evidence concerning the original allegation by K against G been recovered. This was eventually lodged on 21 July 2004 and revealed that K had been medically examined, at the request of the police, on 10 June 1988 following upon allegations of sexual abuse by G. There was no medical evidence supportive of her allegations, which fluctuated between full sexual intercourse and a pinching of her breasts. Meantime, the appellant's agents had been attempting to secure an affidavit from G, but, by this stage, G had determined not to co-operate further. When the case called again on 4 August 2004, the Bill was abandoned and the case remitted for a hearing on the materiality of the new evidence. The crown were directed to lead.

Submissions
[9] The advocate depute submitted that there was nothing in the material of such significance that it could be said that a miscarriage of justice had occurred. The sheriff had accepted the evidence of K, L and M as credible and reliable. The new material related only to one of the supporting witnesses. There had been further evidence corroborating the testimony of the complainer, notably L's distress as spoken to by M. Even if there had been a false allegation, it had been made some ten years before the current case. It was stretching matters to maintain that the new evidence was significant. It was also of concern that there was no affidavit of G, only a precognition (Binnie v HM Advocate 2002 SCCR 738 per Lord Justice-Clerk (Gill) at 741).

[10] The appellant reminded the court of the appropriate test regarding the import of new evidence (Al Megrahi v HM Advocate 2002 SCCR 509, per Lord Justice General (Cullen) at 584). The evidence concerning the previous false allegation was significant (see eg McBrearty v HM Advocate 2004 SCCR 335; Green v HM Advocate 1983 SCCR 42). The evidence of the past false allegation was clear. The fact that it was contained in a precognition rather than an affidavit was not determinative (Allison v HM Advocate 1985 SCCR 408; Reid v HM Advocate 1994 SCCR 755; cf Binnie v HM Advocate (supra)). In the circumstances, had the evidence been available, it would have been likely to have had a material bearing on the sheriff's determination.

Decision
[11] In Megrahi v HM Advocate 2002 JC 99 the Lord Justice General (Cullen) analysed the approach to be taken to the emergence of new evidence after the conclusion of a trial (para [219]). Speaking in the context of solemn procedure, he said:

"(1) The Court may allow an appeal against conviction on any ground only if it is satisfied that there has been a miscarriage of justice. (2) In an appeal based on the existence and significance of additional evidence not heard at the trial, the court will quash the conviction if it is satisfied that the original jury, if it had heard the new evidence, would have been bound to acquit. (3) Where the court cannot be satisfied that the jury would have been bound to acquit, it may nevertheless be satisfied that a miscarriage of justice has occurred. (4) Since setting aside the verdict of a jury is no light matter, before the court can hold that there has been a miscarriage of justice it will require to be satisfied that the additional evidence is not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice. (5) The decision on the issue of the significance of the additional evidence is for the appeal court, which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial. (6) The appeal court will therefore require to be persuaded that the additional evidence is (a) capable of being regarded as credible and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or material part to play in, the determination by such a jury of a critical issue at the trial."

Applying these principles, so far as possible, to summary proceedings, it cannot be said that the test of materiality has been met. In particular, it cannot be said that the new evidence, even it had all been in sworn form, is significant and would have been likely to have had a material part to play in the sheriff's determination of the issues at the trial.

[12] The Sheriff has refrained from expressing a direct view on how he would have regarded the new evidence, had it emerged at the trial. He does, however, remind the court that he actually saw and heard all the witnesses. But even looking at the question objectively and in the proper context, the new evidence could not reasonably have had a material bearing on the decision the sheriff reached on the credibility and reliability of the witnesses and certainly not on the critical issue in the case, namely whether the events alleged by the complainer had occurred.

[13] It is important to have due regard to the context in which the sheriff requested the opinion of the mother on whether the girls had a tendency to make up stories. As noted above, this was not with a view to his being assisted in his assessment of their credibility and reliability in relation to their testimony covering the facts in the libel. It was simply so that he could consider whether they were competent to take an oath and give evidence at all. That is the significance of his finding in fact concerning their lack of a history of telling lies. Had matters been otherwise, the sheriff's enquiry of M would have been plainly objectionable as usurping the function of the court. Ultimately, it is clear that the sheriff did not regard this historical finding as of any materiality when assessing the evidence in connection with the charge. Rather, he set about assessing the credibility and reliability of the witnesses in the usual way. Thus, he did not attempt to weigh the testimony by diving into the depths of the past lives of the witnesses in order to determine their general character or reputation. Rather, he looked at their demeanour in the witness box, considered whether their accounts were inherently likely, and, perhaps of greatest importance, compared and contrasted the testimony of each of them with the other evidence in the case. Seen in this light, the existence of an allegation, about an entirely different incident made over a decade before by a person who was simply a corroborating witness, can hardly be said even to be capable of having a material bearing on a sheriff's determination of the facts alleged in a complaint

[14] The evidence of L was preferred to that of the appellant. There were several objective factors which justified that preference. First, the sheriff did not consider that, with her level of intellectual functioning, she was capable of constructing a fabricated story along with K. Secondly, K's mother, M, spoke to her distress and reported complaint upon returning that evening from the bingo. Thirdly, there was, somewhat unusually in a case of this sort, direct corroboration of the events from another witness, namely K. L's credibility and reliability is not affected by the new evidence of K's historical complaint. M's evidence at the trial is hardly influenced by the new material either, given her entirely coherent and understandable explanation for not wishing to raise the episode about G at a trial over ten years after its occurrence.

[15] In relation to K, the fact that she made an allegation of sexual interference some ten years before the episode involving L can have little, if any, bearing upon her testimony, again for a number of reasons. First, looking at the substance of her allegation against G and her mental age and the context at the time, it is by no means evident that the allegations were false, in the sense of being deliberate lies. Secondly, the fact that someone has been the subject of past sexual interference and has made a complaint about it, even if partly false, can have little bearing on her credibility and reliability when speaking to witnessing an entirely different episode of sexual abuse on another person a decade later. Thirdly, it is not even known what K's reaction might have been if this historical episode had been put to her. She may have had no recollection of it or she might have re-iterated the allegation or accepted its falsehood. Whatever her reaction might have been, and it is not suggested that she would have denied making the allegation about G, it could have had only the most peripheral or theoretical effect when weighing her testimony.

[16] For all these reasons, the new evidence does not satisfy the test of materiality as set out by the Lord Justice General in Megrahi v HM Advocate (supra). The Court is satisfied that no miscarriage of justice occurred in all the circumstances. The appeal is accordingly refused.