Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 116

HCA/2016/33/XM

Lord Menzies

Lord Bracadale

Lord Turnbull

OPINION OF THE COURT

delivered by LORD MENZIES

in

PETITION TO NOBILE OFFICIUM

by

RIA KENYON

Petitioner

against

PROCURATOR FISCAL, HAMILTON

Respondent

Petitioner:  Gilfedder (sol adv);  Gilfedder & McInnes

Respondent:  McSporran QC (sol adv), AD;  Crown Agent

2 November 2016

[1]        The petitioner was called as a Crown witness in a solemn trial before a sheriff and jury at Hamilton Sheriff Court on 4 and 7 March 2016 in relation to an indictment alleging assault to severe injury and permanent disfigurement.  She was a crucial witness for the Crown in this trial.  The statement which she gave to the police less than three weeks after the alleged assault included the sentence “I turned round and I saw Lee punch Kieran once in the face and Kieran just fell to the ground”  She signed this statement on each page.

[2]        In her evidence in chief on 4 March 2016, she stated to the court that she was very drunk on the occasion in question and that she did not see how the boys were injured.  She maintained that she had told the police officers who noted her statement exactly what she had said in court and they had not written down what she had said.  The police officers would be lying if they gave evidence that she had told them what was in the statement.

[3]        After an adjournment over the weekend, the petitioner’s evidence in chief resumed on Monday 7 March 2016.  She maintained that her evidence in court on Friday was always her position and she did not see how the two boys were injured.  Her statement was then put to her and after some further questioning, she gave evidence that she could not remember seeing Lee punch Kieran in the face.  At this point the sheriff asked the jury to retire and warned the petitioner about prevarication and the possibility that she might be found in contempt of court.  The jury then returned and in her continued examination in chief the petitioner agreed she did not tell the court about the assault on Scott by Reece described in paragraph (d) of her statement or about the part which describes an ambulance coming for Kieran and him being covered in blood.

[4]        In further questioning by the prosecutor, the petitioner agreed that today she did not remember parts of what happened but said she would “go with her statement”.  She agreed that she did not dispute that officers took the statement from her, that events were fresh in her mind at the time, that her memory of events was better at the time than now, that she told police officers the truth and that she would not lie.  Her examination in chief concluded.  In cross-examination, the petitioner was asked whether at the taxi rank there was any aggravation or aggression by anyone.  She said “no” and similarly when asked if there was any obvious aggressor.  She repeated her evidence on Friday that she had gone into the taxi office and went out when she heard a commotion.  Asked if she saw anyone getting punched she replied “not that I can remember”.  Asked if she saw a second person getting punched she said “no”.  Asked the first thing she remembered seeing, she responded “a boy lying in the middle of the road”.  Asked if she saw the accused punch anyone, she replied “no”.  She agreed her statement was not in words she would use and the police officers had information about the night in question including the names of persons.  She could not remember her statement being read back to her.  Asked why her statement was different from her evidence, the petitioner said “I just can’t remember that far back”.  She agreed she might have been attempting to tell the truth in her statement but it might not be the truth because of her alcohol intake.  She agreed she chatted about the incident with her friends Tyler and Eilidh and some of the information in her statement may have come from them.  Asked again if she saw the accused punch anyone, she replied “no”.  At this point the sheriff again adjourned for the jury to have a comfort break and during this adjournment, she warned the petitioner regarding prevarication and ordered her detention during the adjournment pending consideration of finding her in contempt of court.  When her cross-examination resumed, the petitioner was asked if her statement was accurate.  She replied “no”.  She agreed she tried to tell the truth to police officers, agreed her memory was not so good and her statement possibly tainted by information from her friends and the police.  She again said she did not see the accused punch anyone that night.

[5]        In her report to us, the sheriff tells us at paragraph 13:

“In re-examination the petitioner was asked whether her evidence meant the accused did not punch Kieran Walsh or she did not remember if he did and she replied ‘I don’t remember’.  She agreed that drinking and discussing the incident with her friend would not make her lie to the police.  ‘I turned round and I saw Lee punch Kieran once on the face and Kieran just fell to the ground’ was read to the petitioner from her police statement and she agreed that was what her statement said but she did not remember seeing it.  She agreed she must have said it to the police.  She agreed she was not under the influence of alcohol when she gave the statement to the police on 22 May 2014.  The petitioner’s evidence concluded”.

[6]        The sheriff in her report to us goes on to explain her conclusions on the issue of contempt of court at paragraph 22 as follows:

“In this case I reached a very clear view that the petitioner was determined from the outset of her evidence not to give evidence which might incriminate the accused.  It was apparent very quickly that having asked the procurator fiscal depute for sight of her statement before she was called she did not intend to speak to it.  Her first recourse was to assert that where the statement differed from her evidence the police had not written down what she said and that they would be lying if they gave evidence to the contrary.  Her demeanour during this chapter of her evidence was confident and assertive.  When the statement was produced and put to her it was apparent that it was a very coherent statement given to the police 17 days after the incident when she accepted she was sober, signed by her on each page and which placed her in the position of an eyewitness and clearly incriminated the accused on the charge.  It became more difficult for the petitioner to maintain her original position regarding the police not writing what she said and during a period of ‘fencing’ with the prosecutor during close examination she reverted to the position of not remembering the parts of her statement which differed from her evidence rather than the police inventing it.  She was at this stage warned regarding prevarication.  In so far as the petitioner then agreed she could not remember some events told the police the truth in the statement, matters may have ended there.  However in cross-examination she reneged substantially from this position and was given a further warning regarding prevarication.  Despite that warning when cross-examination resumed her evidence continued in the same vein, undermining the accuracy and truthfulness of her statement and stating that she did not see the accused punch anyone that night.  The petitioner’s demeanour throughout was collected and defiant.  Though in re-examination the prosecutor with skilful questioning restored the position that the petitioner did not remember some things in the statement happening and had told the police truth, I was of the view that she had not purged  her contempt.”

[7]        In submissions to this court today, Mr Gilfedder indicated that he could not support the averments in this petition to the nobile officium and he accepted that the sheriff was entitled to take the view that the petitioner had prevaricated.  However he maintained that the petitioner had purged her contempt of court in her re-examination as set out in paragraph 13 of the sheriff’s report to us.  We are not persuaded that the petitioner purged her contempt of court by the evidence which she gave in re-examination in this trial.  The position which she adopted in re-examination was different from that in cross-examination and also different from that taken in the early part of her evidence in chief.  Although Mr Gilfedder described it as an adoption of her police statement, we do not regard it as such.  It amounted merely to a repetition of her evidence that she did not remember seeing the accused punch the complainer on the face but that she must have said this to the police and she was not under the influence of alcohol when she did so.  The sheriff has explained why she took the view that the petitioner had not purged her contempt.  The sheriff was best placed to make an assessment of the petitioner’s evidence, whether or not she was contempt of court, and whether or not she had purged her contempt.  The sheriff reached her conclusion only after hearing submissions from a solicitor on behalf of the petitioner.  We cannot fault her reasoning nor can we detect any error of law in her decision.

[8]        This petition must therefore be refused.