APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Philip
Lord Kingarth
Lord Penrose
|
[2006]
HCJAC 66
Appeal
No: XC314/06
OPINION OF THE COURT
delivered by LORD PHILIP
in
NOTE OF APPEAL
under section 74 of the
Criminal Procedure (Scotland) Act 1995
by
PAUL MURRAY WRIGHT
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Miss Ogg; McCusker McElroy, Paisley
Alt: Murphy, Q.C., A.D.; Crown Agent
4 July 2006
[1] This is an
appeal by Paul Murray Wright against a decision of the sheriff at Dumbarton
dated 27 February 2006 to continue to the trial diet
consideration of a minute lodged by the appellant in terms of section 71(2) of
the Criminal Procedure (Scotland) Act 1995. The minute raised a preliminary issue in the
form of an objection to the admissibility of evidence of an identification
parade at which the appellant was identified.
The appellant contends that the sheriff was obliged to determine the
preliminary issue at the first diet and that it was incompetent for him to
continue consideration of the matter until the trial diet.
[2] The
background is as follows. The appellant
was indicted for trial in the Sheriff Court at Dumbarton on 4
January 2006
on five charges of assault and robbery, with a first diet on 30
December 2005. On 28 December 2005 he lodged a minute in terms of
section 71(2) of the Criminal Procedure (Scotland) Act 1995 raising an objection to
the admissibility of evidence of an identification parade held on 25
September 2005. That minute was in the following
terms:
"1. That
the Minuter, along with co-accused, Colin Murray, has been indicted at the
instance of Her Majesty's Advocate for trial in the Sheriff Court at Dumbarton
on 4th January 2006 with a first diet on 30th December 2005.
2. That
the Minuter wishes to raise the following preliminary issue at the first diet:
That the line of evidence pertaining
to the identification of the Minuter by Crown witnesses McCorquodale, Neilsen
and MacDonald at an identification parade held at Partick Police Office,
Glasgow on 25th September 2005, together with Crown production 5 being a record
of said identification parade, should not be admitted in evidence on the
following grounds, viz:-
a. That
identification of the Accused is a central issue to the
present case. The Crown evidence is anticipated to be to
the effect that a group of 5 young men including the 3 Crown witnesses referred
to above, were confronted, assaulted and robbed by the two accused. The evidence is expected to be that the group
did not know their assailants and further, that at the material time, it was
dark.
b. That
the Minuter has intimated a notice of special defence of
alibi.
c. That
the identification parade was conducted unfairly by police
officers. The stand-in participants in the parade
selected by those officers responsible for the conduct of the parade were not
of similar age, height or appearance to the Minuter.
d. That
the Minuter was 19 years of age. The
youngest of the
stand-ins was 23 years of age. The oldest of the stand-ins was 29 years of
age.
e. That
the Minuter is approximately 5 feet 10 inches tall. 2 of the
stand-ins were 5 feet 8 inches tall,
one 5 feet 9 inches tall and one 5 feet 7 inches tall. Of the 6 stand-ins who participated, only 2
were over 5 feet 10 inches in height.
f. That
the Minuter is of mixed race and has a darker skin tone.
None of the stand-ins were of mixed
race, indeed they were all white local males.
g. That
the foregoing issues were objected to timeously by the
Minuter's solicitor, but the police
officers elected to continue with the parade.
h. That
the foregoing matters, separately and cumulatively,
amount to fundamental unfairness in
the conduct of the identification parade on 25th September 2005.
Accordingly, any evidence of identification of the Minuter elicited
thereat, is inadmissible."
[3] The minute
came before the sheriff at a continued first diet on 24
February 2006. At that diet the agent for the appellant
indicated that, because of the nature of the preliminary issue raised, it would
be necessary for the sheriff to hear evidence.
He submitted that matters of admissibility should, wherever possible, be
decided in advance of any trial. The
procurator fiscal argued that it would not be possible for the court to deal
properly with the preliminary issue at the first diet but that it should
properly be dealt with at the trial. An informed
view of the fairness or otherwise of the identification parade could not be
formed until all the evidence relating to the parade had been ventilated. Even if evidence of the identification parade
were to be ruled inadmissible at the first diet the Crown still intended to
lead dock identification evidence. In
that situation the appellant's defence would be prejudiced since it would not
be possible for witnesses to the identification parade to be cross-examined on
behalf of the appellant at the trial. Two
witnesses were then called on behalf of the appellant, the solicitor who
represented him at the identification parade, and the appellant himself. The procurator fiscal called as a witness the
police officer who conducted the parade.
[4] The
undisputed facts found by the sheriff were that the appellant was brought to
Partick Police Office in custody to be placed in an identification parade. The police had secured the attendance of nine
men of various ages and descriptions as stand-ins. The appellant's solicitor expressed a
dissatisfaction with the stand-ins on the ground that they were white and pale
skinned, while the appellant was of mixed race and dark skinned. He also objected to the ages and heights of
the stand-ins. The officer conducting
the parade noted these objections, but explained that the arrangements were the
best that could be made in the circumstances and proceeded to conduct the
parade with the stand-ins in question.
The appellant and his solicitor gave evidence to the effect that, in
their view, the parade had been unfair due to the disparity between the colour
of the appellant and the stand-ins. The
officer, on the other hand, opined that the parade had been fairly
conducted. If he had thought otherwise he
would not have continued with the parade.
The witnesses who were to view the parade had travelled from Oban to Glasgow and constraints of time had played a
part in the organisation of the parade.
[5] At the
conclusion of the evidence the solicitor for the appellant argued that it was
for the Crown to establish that the parade was not unfair. Because of the disparity between the appellant
and the stand-ins in terms of skin colour, age and height, the identification
parade had been unfairly conducted.
There had been nothing to excuse the unfairness. The identification evidence had therefore
been irregularly obtained and was accordingly inadmissible. The procurator fiscal argued that the correct
test was whether or not the conduct of the identification parade was so unfair
that it should not be put before a jury.
The question whether that test had been satisfied could not be answered
until all the evidence relating to the parade had been ventilated. In particular it was of critical importance
that the question should be considered in the light of the evidence of the
witnesses who had actually identified the appellant at the parade. At the first diet the court only had the
conflicting views of the three witnesses as to the fairness or otherwise of the
parade. The question of fairness was a
matter for the jury to decide and that decision could only be reached after all
the evidence had been heard and tested.
[6] The sheriff
took the view that there was not sufficient material before him to enable him
to form a concluded view on the objection and continued consideration to the
trial diet purportedly in terms of section 71(2ZA)(b) of the 1995 Act. He considered that he required to hear the
evidence of the witnesses who had viewed the parade in order to determine
whether it was unfair or not. If the
fact that the appellant was the only mixed race individual on the parade had
been the basis of the witnesses' identifications, that would be relevant to the
question of fairness. If, on the other
hand, the witnesses' evidence was that the appearance of the stand-ins was of
no significance because their identifications were based, for example, on
previous knowledge of the appellant, then the evidence of the parade might be
of little significance. To determine the
merits of the minute on the basis of the limited evidence which had been put
before him would be likely to be productive of injustice to one side or the
other.
[7] In terms of
section 79(2) of the 1995 Act an objection by a party to the admissibility of
any evidence is a preliminary issue.
[8] Section 71(2)
provides:
"(2) ...
the court shall, at a first diet, consider any preliminary plea or preliminary
issue (within the meanings given to those terms in section 79(2) of this Act)
of which a party has, not less than two clear days before the first diet, given
notice to the court and to the other parties."
[9] Section 79(1)
provides:
"(1) Except
by leave of the court on cause shown, no preliminary plea or preliminary issue
shall be made, raised or submitted in any proceedings on indictment by any
party unless his intention to do so has been stated in a notice under section
71(2) or, as the case may be, 72(3) or (6)(b)(i) of this Act."
[10] Section 71
also contains provisions enabling the court to deal with objections to the
admissibility of evidence which have not been the subject of notice in terms of
section 79(1).
[11] Section
71(2YA) and (2ZA) provides:
"(2YA) At a first diet, the court shall also
ascertain whether there is any objection to the admissibility of any evidence
which any party wishes to raise despite not having given the notice referred to
in subsection (2) above, and -
(a) if
so decide whether to grant leave under section 79(1) of this Act for
the objection to be raised; and
(b) if
leave is granted dispose of the objection unless it considers it
inappropriate to do so at the first
diet.
(2ZA)
Where the court, having granted leave for the objection to be raised,
decides not to dispose of it at the first diet, the court may -
(a) appoint
a further diet to be held before the trial diet for the purpose of
disposing of the objection; or
(b) appoint
the objection to be disposed of at the trial diet."
[12] For the
appellant, Miss Ogg argued that the provisions of section 71(2) should be
interpreted as requiring the sheriff to determine the admissibility of the
evidence of the identification parade at the first diet. The word "consider" where it appeared in
subsection (2) meant "determine" or "dispose of". The onus was on the Crown to prove that the
identification parade was fair. The
sheriff was obliged to determine whether the Crown had discharged that onus on
the basis of the evidence led at the first diet. He was not entitled to continue the matter to
the trial diet to enable further evidence which might bear upon the question of
admissibility to be led. It was not open
to him to cure any defects in the Crown case by continuing consideration of the
question.
[13] For the Crown
the advocate depute submitted that if the appellant's submissions were correct
the sheriff would be prevented from doing justice. Section 71(2) required the court to consider
any preliminary issue at the first diet, not to determine it. The sheriff considered that he had
insufficient material before him to arrive at a concluded view. It was not for the parties to put limitations
on his discretion by requiring him to determine the question on the evidence of
a selection of witnesses chosen by them.
[14] It is, in our
view, clear that the sheriff was entitled to continue consideration of the
appellant's objection to the trial diet.
Subsection (2) of Section 71 requires the court to "consider" any preliminary
issue of which a party has given notice in terms of section 79(1) at the first
diet. The court is not required to
determine or dispose of the issue at that stage. The word "consider" does not bear such a
meaning in that context. Support for
that interpretation is to be found in subsection (2ZA) of section 71 which
deals with objections to the admissibility of evidence which the court has
allowed to be raised in terms of subsection (2YA) of section 71 and subsection
(1) of section 79, despite the absence of notice. Subsection (2ZA) envisages that the court may
decide not to dispose of such an objection at the first diet, and empowers it
to appoint a further diet to be held before the trial diet for the purpose of
disposing of the objection, or to appoint the objection to be disposed of at
the trial diet. The use of the phrase
"dispose of" in that context is in clear distinction to the use of the word
"consider" in subsection (2).
[15] It was argued
on behalf of the appellant that, although the court was enabled by subsection
(2YA) to appoint such late objections to the admissibility of evidence to be
disposed of at a further diet or at the trial diet, it was nevertheless
prevented from dealing with objections of which notice had been timeously given
in the same way. Such a result could, in
our view, have no rational justification, and there is no provision in the 1995
Act which can be interpreted as having that effect.
[16] While the
legislation was framed with a view to facilitating the resolution of
preliminary issues before trial it recognised that such a course is not always
possible. In the present case the
sheriff was invited to determine the admissibility of the identification parade
evidence in the light of the evidence of three witnesses, two of whom were
chosen by the appellant. The position of
the Crown was that the issue could not be determined at the first diet. The sheriff rightly took the view that he
could not do justice by determining the issue in the light of the evidence
led. How the matter should be determined
at the trial diet is a matter for the court to determine at that stage. The appeal is refused.
