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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2008] HCJAC
57
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Lord Reed
Lord Carloway
Lord Clarke
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Appeal No:XJ1776/05
OPINION OF THE COURT
delivered by
THE RIGHT HONOURABLE LORD REED
in
the reference by
THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION
In the case
STUART MARK HUNT
Complainer;
against
PROCURATOR FISCAL INVERNESS
Respondent:
_______
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Act: Shead; Drummond Miller
Alt: P Ferguson QC,
AD; Crown Agent
9 October 2008
Introduction
[1] On 26
August 2005 the
complainer was convicted at Inverness District Court of a charge of
assault. The background was a dispute
between him and his neighbours which had already been the subject of civil
proceedings. The complainer was found to
have punched one of his neighbours, Mr Latham, on an occasion in November
2004. He was fined £200. Following his conviction, the complainer
lodged an application for a stated case.
A draft stated case was prepared by the justice in accordance with
section 178(1) of the Criminal Procedure (Scotland) Act 1995. Adjustments to the draft case were proposed
by the Crown, and a hearing was fixed for 17 October 2005.
Between the lodging of the application for the stated case and the date
of the hearing, the complainer parted company from his legal representatives
following a dispute over the payment of fees.
The complainer failed either to lodge any adjustments or to intimate
that he had no adjustments to propose, as required by section 179(1) of the
1995 Act. He did not appear (and was not
represented) at the hearing. The appeal
was therefore deemed to have been abandoned, as required by section 179(3). In consequence, the draft case was not
adjusted or altered.
[2] The
complainer subsequently applied to this court under section 181 of the 1995 Act
for further time to comply with the requirements of section 179(1). The application was refused on 9
December 2005. In refusing the application, the court stated
that insufficient reasons had been given for the delay (of more than five
weeks) in applying for further time. The
court added that the application for the stated case in any event sought to
re-open questions of fact which were for the justice at the trial.
[3] The
complainer subsequently applied to the Scottish Criminal Cases Review
Commission. In November 2006 the
Commission decided to refer the case to this court under section 194B of the
1995 Act. After hearing counsel for the
appellant at a procedural hearing, the court directed that the appeal should
proceed as a bill of suspension. A bill
was then presented, which adopted the reasons given by the Commission for the
referral in accordance with section 194D(4) of the 1995 Act. The court then issued an order in the usual
terms, authorising service of the bill upon the Crown and upon the clerk to the
District Court, and directing the clerk to obtain a report from the justice and
to transmit it to court. Answers to the
bill were then lodged on behalf of the Crown, and a report was provided by the
justice. The appeal then proceeded to a
hearing.
A preliminary point
[4] At the outset
of the hearing the court raised with parties a question concerning the
relationship between the statutory provisions concerned with appeals in summary
proceedings and those concerned with references by the Commission. The statutory requirements, such as those
imposed by section 179(1), apply regardless of whether the appellant may have a
meritorious ground of appeal: they are
intended to ensure that summary justice is dealt with expeditiously. Where an appellant has failed to comply with the
requirements of section 179(1) within the statutory time limit, Parliament has
directed that the appeal must be deemed to have been abandoned, subject only to
the court's exercise of its discretionary power to allow further time under
section 181. The court's exercise of its
discretion, in the interests of justice, is not dictated by an assessment of
the merits of any ground of appeal. The
interests of justice include ensuring that summary cases are dealt with
expeditiously and without undue demands on the resources of the court. Those interests are not well served by an
approach which too readily excuses failures to comply with the statutory
requirements.
[5] Against that
background, the question of interest to the court was whether, in a case where
the statutory requirements had not been complied with and the court had refused
to allow further time, those statutory provisions could be circumvented, and
effectively set at naught, by means of an application to the Commission and a
subsequent referral to the court, or whether (and if so, how) the appellant's
failure to comply with those statutory provisions should be taken into account:
for example, by the Commission (in the exercise of its discretion to refer
under section 194B, or in its consideration under section 194C of whether a
miscarriage of justice might have occurred, or of whether it was in the
interests of justice that a reference should be made), or by the court (in its
consideration of whether there had been a miscarriage of justice).
[6] It was
apparent at the hearing that neither of the parties had considered this
question and that, if the court were to be addressed on it, the hearing would
have to be adjourned. Neither party
sought an adjournment: although the Crown acknowledged that there was an issue
which required to be considered, they did not seek to argue it in the present
case. Bearing in mind the minor nature
of the present case and the length of time which had already elapsed, the court
did not consider it appropriate to adjourn the case so as to be addressed on
the question. In the circumstances, we
shall express no view upon it.
The first ground of
appeal
[7] The bill,
like the Commission's statement of its reasons for referral, is concerned with
two matters. The first concerns the
terms of the draft case. In that regard,
the Commission cite in their statement of reasons the criticisms which the
court made of a stated case in Jordan v Allan
1989 S.C.C.R. 202, and continue:
"44. A similar assessment can be made in the
present case (see above at paragraph 9 for the content of the stated
case). These (sic) do not include findings or comments in relation to: the
credibility or reliability of witnesses; whether and why witnesses were
believed or not; any reason(s) for the final decision on the applicant's
special defence of self defence. While
it is noted that the stated case is in draft form, it is unclear on what basis
the justice made his decision to convict the applicant.
45. In these circumstances, the Commission
has concluded that the stated case, in its draft form, does not meet the
requirements of section 178(2) of the 1995 Act, and that the findings in fact
cannot be treated as having been made on the whole evidence."
That reasoning is adopted in the bill, which adds that, since
the draft case does not disclose a properly reasoned basis for conviction, the
complainer has been denied the fair hearing to which he is entitled at common
law and under article 6(1) of the European Convention on Human Rights.
[8] So far as
these matters are concerned, the bill appears to us to be misconceived. The requirements of section 178(2) apply to "a
stated case"; and a case is not "stated" until the process of adjustment and
alteration of the draft case has been completed: section 179(7). Here, there was only a draft case: the
justice never stated a case, because the appeal was deemed to have been
abandoned. Authorities such as Jordan v Allan
are similarly concerned with stated cases, not draft cases. Draft cases are commonly deficient: that is
one of the reasons why section 179 provides an opportunity for the parties to
propose adjustments and for the judge himself to make any alterations to the
draft which he desires. In the present
case, the Crown had prepared adjustments, and had requested the justice to
expand on his reasoning so as to address the deficiencies noted by the
Commission. It was only as a result of
the complainer's failure to comply with the statutory requirements, and the
consequent abandonment of the appeal, that the justice was unable to respond to
that request. In his report to this
court, however, he has provided a much fuller account of his reasoning. Subject to the matter with which the second
ground of appeal is concerned, which we discuss below, that reasoning was not
criticised by counsel for the appellant.
[9] In these
circumstances , the criticism based on sentence 178(2) of the 1995 Act is
misplaced, and there is no question, so far as this matter is concerned, of the
complainer having been denied a fair hearing.
The second ground of
appeal
[10] In order to
understand the second matter with which the referral and the bill are
concerned, it is necessary to say something about the evidence at the
trial. The background to the assault was
a dispute as to whether Mr and Mrs Latham ( and other neighbours) were entitled
to use a road running through the complainer's garden in order to go to and
from their house. On the morning in
question, Mrs Latham was driving down the road in order to go to work. Her husband went with her in order to open
and close gates at various points along the road. The complainer emerged from his house in
order to video film them. According to a
statement which he gave to the police and which was led in evidence in the
course of the Crown case, the purpose of the filming was to demonstrate that
speed bumps which he had had installed on the road through his garden did not
impede the Lathams' use of it. When Mrs
Latham stopped the car at a gate, and her husband went to open it, the
complainer went to the rear of the car and attempted to measure the ground
clearance below the exhaust pipe of the Latham's car. Mrs Latham became upset and told the
complainer to move away from the car. Mr
Latham went between the complainer and the car, and words were exchanged. Mr Latham moved away and the car proceeded to
a further gate, which Mr Latham opened.
Mrs Latham then drove to her work.
As Mr Latham walked back up the road towards his house, the complainer
cut across his path. Further words were
exchanged, and the complainer punched Mr Latham in the face, causing him to
fall to the ground. Mr Latham returned
home and called the police. The complainer
claimed to have acted in self-defence.
[11] One of the
witnesses led by the Crown was the complainer's wife. She gave evidence about the background to the
incident. She also gave evidence about
the incident itself, which the justice narrated as follows in the draft case:
"Mrs
Hunt ran upstairs to get daughters ready for school and glanced out the
window. Mr Hunt and Mr Latham were in
close proximity standing side by side facing up the hill towards the Latham's
house. This was beside the steps near the
outhouse. Mr Latham was closer to the
house and nearer to me. Suddenly and
violently he threw his elbow up at my husband's face, my husband ducked out of
the way and the elbow missed. My husband
instinctively reacted and punched him on the face...On cross examination, a
photograph of the house was produced (this photograph is enclosed with the
productions). An "X" was marked on the
spot where the incident happened. The
distance from the upstairs window to the spot was approximately 15 metres (45
feet) and she had a clear view of the assault. (On examination of the
photograph, I did not think it was possible that Mrs Hunt could have seen the
incident as the view would have been obscured by outbuildings)."
[12] In relation to
this matter, the Commission state:
"48. The comment made by the justice about Mrs
Hunt's line of vision is not contained within the findings in fact of the
stated case. It appears to the
Commission, however, that the justice made his own determination, on the basis
of the photograph, as to whether or not the applicant's wife could see the
relevant incident. No such suggestion
had been made by the Crown. Effectively,
the justice made his own assessment of the evidence in private, amounting to
the hearing of evidence outwith the presence of the applicant.
49. In terms of section 92(1) of the Criminal
Procedure (Scotland) Act 1995, 'no part of a trial shall take place
outwith the presence of the accused'....
50. In Brims
v MacDonald 1993 SCCR 1061, the
complainers were tried on summary complaint for dangerous driving. In the course of the evidence a witness
described part of the locus as being a 'blind bend'. Photographs of the bend were produced in
cross-examination in order to challenge that evidence. The sheriff examined the photographs and
could not see that they contradicted the witness. He stated that he intended to visit the locus
at lunchtime and invited the parties to accompany him if they wished to do so. The sheriff visited the locus, but no one
went with him. The complainers were
convicted and appealed to the High Court by bills of suspension on the ground
that the sheriff's visit to the locus constituted an irregularity which
vitiated the proceedings.
51. It was held, insofar as relevant to the
instant case, that the sheriff, by going to the locus to determine whether the
evidence of the witness regarding the bend should be accepted, was in effect
taking evidence, and that meant that part of the proceedings were being carried
on outwith the presence of the complainers and that that was a serious
irregularity which vitiated the proceedings.
Their convictions were set aside, and authority given for a fresh
prosecution.
....
53. The Commission is of the view that the
applicant's case is on all fours with Brims,
supra, in that the justice
effectively took evidence when he made his own assessment of the photograph. In the applicant's case, the irregular
exercise in fact-finding related to a material issue was carried out by the
court itself (per Adam v HM Advocate 2006 SCCR 354, 362 at para
28). That amounts, in the Commission's
view, to part of the trial taking place outwith the presence of the
applicant.....
65. ...[T]he Commission is of the view that the
justice erred in law by taking into account matters about which no evidence was
led at trial, in contravention of section 92(1) of the 1995 Act."
This reasoning is adopted in the bill, which adds two further
criticisms: first, that since the
justice had "conducted his own analysis of the photograph", he was "turning
himself into a witness" and "relying on evidence not led at the trial"; and
secondly, that the complainer had been deprived of a fair trial, since "those
then representing the complainer had no opportunity to address the justice's
concern in submission".
[13] In his report
to this court, the justice states that he found the evidence of Mr and Mrs
Latham to be entirely credible and reliable, and disbelieved the contrary
evidence of the complainer and his wife.
In relation to the evidence of Mrs Hunt, in particular, he states:
"Although
the complainer's evidence as to self defence was corroborated by his wife
Kathryn Hunt, who was called as a Crown witness, I was of the opinion that her
evidence was given in a stilted, rehearsed manner and I did not consider her to
be a reliable witness. I also took into
account when assessing her evidence her relationship to the complainer. I consider that I am entitled to consider the
demeanour of a witness to assess the veracity of their evidence. In this case I chose not to believe Mrs
Hunt's evidence ..... [A]lthough I made reference to the photograph in my draft
report and expressed the opinion that I did not think it was possible that Mrs
Hunt could have seen the incident from the upstairs window I should have made
it clear that I did not accept this evidence, in relation to her viewpoint,
since I did not consider her to be a credible witness. I accept that I should have referred to the
manner in which she delivered her evidence rather than referring to the
photograph. My intention was to indicate
how little emphasis or importance could be placed on the photograph or the
credibility of this witness. I took full
account of Mrs Hunt's evidence but did not find her a credible or reliable witness."
[14] In relation to
this matter also, we reject the contentions in the bill. Considering first the points put forward by
the Commission, we observe that section 92(1) of the 1995 Act is applicable
only to solemn proceedings, and therefore is not germane to the present case. The equivalent provision for summary
proceedings is contained in section 153(1).
More fundamentally, we are unable to understand the suggestion that part
of the trial took place outwith the presence of the accused. The justice's consideration of the evidence,
including the photograph, took place during the trial. The accused was present throughout. Far from being "on all fours" with Brims v MacDonald, the present case is plainly distinguishable: the
irregularity in Brims was, as the
Commission note, that the sheriff had in effect taken evidence when he visited
the locus on his own in order to test the accuracy of evidence which had been
given by a witness. We also observe
that, as Lord Justice-Clerk Gill stated in Adam
v HM Advocate at paragraph 32, the
approach adopted in Brims seems to
conflate two distinct ideas, namely that the court engaged in evidence-gathering
and that in doing so it conducted part of the proceedings outwith the presence
of the accused. The same conflation of ideas appears to be implicit in the
Commission's approach, notwithstanding its citation of Adam.
[15] The Commission
were in our view mistaken also in equiparating (at paragraphs 48 and 53) the
assessment of evidence with the hearing or taking of evidence. The assessment of evidence is a proper and
essential function of a judge. The
justice cannot be criticised for performing that function. Since the assessment of evidence is a mental
process, the justice cannot be criticised for performing that function "in
private", as the Commission describe it (at paragraph 48). It is unnecessary to labour the distinction
between that process and the hearing or taking of evidence in private.
[16] The argument
advanced by counsel for the complainer, that the justice had turned himself
into a witness was based on the decision in Gray
v HM Advocate 1999 SCCR 24. In that case, witnesses had given evidence
describing the accused as the person shown in a video recording of a robbery
which was played during the trial. It
was common ground before the court that it would have been competent for the
jury to view the recording in the course of their deliberations, in order to
assist them in assessing the evidence of the witnesses who had identified the
accused from it, but not so that they could decide for themselves whether they
could identify the accused from it.
Since the case proceeded on a concession, it is of little value as a precedent;
but, for what it is worth, it provides no support for counsel's criticism of
the justice in the present case. Mrs Hunt
had given evidence that she had seen the incident. The photograph was put to her by the
complainer's solicitor, and she was asked to confirm that she had a clear
view. She did so. In that situation, rather like the jury in
the case of Gray, the justice was
entitled to look at the photograph in order to assess the credibility and
reliability of Mrs Hunt's evidence that she had a clear view. As Lord Justice General Hope said, again in
relation to video tapes, in Steele v HM Advocate 1992 JC 1 at page 5:
"[E]xcept
in cases where some particular expertise is required to understand what is
going on, the jury are free to make up their own minds about what the tape
reveals".
The case of Brims v
MacDonald incidentally offers a
closer parallel, in that it was a case which concerned photographs, produced in
order to challenge evidence given by a witness who had described the locus as a
blind bend. The sheriff examined the
photographs and could not see that they contradicted the witness. He then visited the locus to see for himself,
as we have mentioned. The visit to the
locus was held to be an irregularity; but there was no suggestion that the
sheriff had acted improperly in examining the photographs and considering whether
they contradicted the witness. Such a
suggestion would have been absurd.
[17] Counsel's
final argument was that it had been procedurally unfair for the justice not to
disclose his doubts about Mrs Hunt's evidence: since the Crown had not
challenged specifically that aspect of her evidence (although her credibility
and reliability in general had been challenged), the complainer's solicitor had
had no opportunity to address the issue in his closing submissions. We are unable to accept that contention. A judge hearing a case is not obliged to
interrupt the proceedings whenever he has doubts about the credibility or
reliability of a piece of evidence; nor is he obliged to provide the parties
with a list of his concerns about the evidence so that they can be addressed
during submissions.
[18] Finally, we would
observe that, in the light of the justice's report, this issue appears in any
event to have been of no practical significance. Mrs Hunt's evidence was rejected, root and
branch, on the basis that she was not a credible witness.
Conclusion
[19] In the
circumstances, we shall refuse to pass the bill.
