For the appellant: D Taylor, Solicitor Advocate; Gilfedder & McInnes

For the respondent: Bell QC, AD; Crown Agent

18 February 2010

The conviction

[1] On 15 January 2009 at Ayr Sheriff Court the appellant was convicted of the following charge:

"(3) on 10 September 2008 at 68 Church Court, Ayr you LEE WILLIAM REID NIBLOCK did assault John Thomson ... and did strike him on the head with a dumb bell bar, causing him to fall to the ground and thereafter did repeatedly strike him on the head with the said dumb bell bar all to his severe injury, permanent disfigurement and permanent impairment."

The Crown case

[2] The locus of the charge was the home of the Crown witness Colin Smith, who was the complainer on charges 1 and 2. On the occasion libelled, Smith and Thomson, the complainer on charge 3, were together there. The appellant and a co-accused, James Brown, who was not involved in this charge, came to the door. Brown accused Smith of stealing a moped. There was then a scuffle in which the complainer was attacked with a dumb bell bar and sustained the injuries libelled.

[3] The critical issue was the identification of the assailant. The complainer and Smith were the only eye-witnesses. The complainer identified the appellant as the assailant; but Smith did not.

[4] In his Report the sheriff says that Smith was extremely nervous. He equivocated on the identification of the assailant. The procurator fiscal depute referred Smith to his police statement with a view to his confirming that on the day after the incident he gave a statement to DC Grayem McCreath in which he identified the appellant as the assailant. Smith (to whom the sheriff refers per incuriam as Thomson) said that he might have told the police officer that the appellant had struck the complainer with a dumb bell bar. He confirmed in cross-examination that he had told DC McCreath what had happened, but said that he was not saying that it was the appellant who committed the assault. In re-examination he confirmed that he had told DC McCreath the truth.

[5] DC McCreath's evidence was that Smith gave a statement to him on the day after the incident in which he identified the appellant as the assailant.

[6] When the Crown closed its case, the solicitor for the appellant submitted that there was no case to answer since Smith's evidence did not corroborate the complainer's identification of the appellant as the assailant. The sheriff repelled the submission.

[7] In his speech to the jury the procurator fiscal depute dealt in detail with the evidence of Smith and the evidence relating to his police statement. He presented the case to the jury on the basis that the evidence of the complainer was corroborated by the evidence of Smith in which, he contended, Smith had validly adopted his police statement.

The significance of Smith's police statement

[8] The purpose of the procurator fiscal depute in leading evidence about Smith's police statement was to invoke section 260 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) which provides inter alia as follows:

260.- (1) Subject to the following provisions of this section, where a witness gives evidence in criminal proceedings, any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of those proceedings.

(2) A prior statement shall not be admissible under this section unless -

(a) the statement is contained in a document;

(b) the witness, in the course of giving evidence, indicates that the statement was made by him and that he adopts it as his evidence; and

(c) at the time the statement was made, the person who made it would have been a competent witness in the proceedings.

(3) For the purpose of this section, any reference to a prior statement is a reference to a prior statement which, but for the provisions of this section, would not be admissible as evidence of any matter stated in it .. "

The sheriff's charge

[9] The sheriff gave the jury the standard directions on corroboration. He pointed out that one of the essential matters that had to be proved by corroborated evidence was that the crime charged was committed by the accused. He did not discuss the evidence of Smith or of DC McCreath. Since he considered that the trial had been relatively short and that the evidence was fresh in the minds of the jury, he did not discuss the evidence at all. He gave the jury no specific direction on the evidential significance of Smith's police statement.

[10] In his Report, the sheriff refers us to the following part of his charge:

"Indeed, whether (sic) there are conflicts within the evidence of a single witness, and that has clearly been the case here, you can accept part of it and reject part of it. If you reject part of a piece of the evidence because you believe a witness is lying or unreliable, you simply put that part of the evidence out of your minds completely. It does not mean that the opposite of what the witness said is true, you simply ignore the piece of evidence which you have rejected" (Transcript, p 3).

He says of that direction

"[It] is I believe self-explanatory. At that passage I acknowledged the conflicts in the evidence of Mr Smith. Although I did not specifically name him I have no doubt that the Jury knew who I was talking about (the matter had been canvassed in both speeches). In any event I directed the Jury that they could accept part and reject part of his evidence telling them how to deal with any such part which they rejected. I saw no need to direct the Jury further on this matter."

The grounds of appeal

[11] This appeal raises two issues: (1) whether the sheriff erred in repelling the submission of no case to answer; and (2) whether in any event he misdirected the jury by failing adequately to direct them on the evidential value of Smith's police statement.

The submission of no case to answer

[12] My impression is that Smith's evidence did not amount to an outright adoption of his police statement and therefore that the preconditions of section 260 of the 1995 Act (supra) were not met. On that view, the statement could not be relied on by the Crown as providing the corroboration that was essential to the Crown case. However, we need not pursue that point if I am right in the view that I take on the second ground of appeal.

The alleged misdirection

[13] I shall assume in the Crown's favour that Smith's evidence amounted to a valid adoption of his identification of the appellant in his police statement. On that assumption, I consider that the sheriff's failure to direct the jury explicitly on the significance of the statement constituted a misdirection.

[14] If Smith's police statement was relied on as evidence for the Crown, it was essential, in my view, that the sheriff should refer to the evidence of both Smith and DC McCreath on the question of the identification of the appellant, to explain what was meant by an adoption by Smith of his police statement and to explain the effect of section 260 (supra), on which the Crown relied.

[15] The sheriff's reasons for not referring to Smith's evidence, or to section 260, are, I think, unconvincing. The identification of the appellant by Smith was critical in this case. To provide corroboration of the complainer's identification the Crown had to rely on a statutory exception to the normal evidential rule by which evidence of an identification of the appellant in Smith's police statement would have been inadmissible. That plainly required a specific direction as to the purpose of the Crown's reliance on the statement and as to its evidential significance. A suitable direction on the point is given in the Charging the Jury manual (Ch 24). Since the sheriff's failure to give such a direction went to an essential element in the Crown case, it resulted, in my opinion, in a miscarriage of justice.

[16] What I have said in relation to section 260 seems to me to be of more general application to all cases in which it is legitimate to refer to a witness's prior statement.

In consequence of the principle established in Muldoon v Herron (1970 JC 30) and developed and extended in Jamieson v HM Adv (No 2) (1995 SLT 666) there are certain circumstances in which a witness who has identified an accused person, or who has given an account of an incident, at an earlier stage, may adopt such an identification or such an account where he is unable to give it in court. In such a case evidence of the making of the identification or the account in question is admissible as evidence of the facts referred to.

[17] Certain other provisions in the 1995 Act provide for situations in which a prior statement of a witness may be referred to and, in that event, what the evidential significance of it will be (cf. ss 259, 263 and 271M). In my opinion, in any such case the presiding judge or sheriff should direct the jury specifically on these matters.

Disposal

[18] I propose to your Lordship and to your Ladyship that we should allow the appeal.

For the appellant: D Taylor, Solicitor Advocate; Gilfedder & McInnes

For the respondent: Bell QC, AD; Crown Agent

18 February 2010

[19] I agree with your Lordship in the chair. There is nothing I wish to add.

For the appellant: D Taylor, Solicitor Advocate; Gilfedder & McInnes

For the respondent: Bell QC, AD; Crown Agent

18 February 2010

[20] I agree with your Lordship in the chair and have nothing to add.