APPEAL COURT, HIGH COURT OF JUSTICIARY

Act: Shead; Lavery Smith, Glasgow

Alt: K. Stewart; Crown Agent

25 May 2006

[1] On 23, 24 and 27 October 2003, the appellant went to trial on a charge of assault and robbery, having previously pled guilty to the other charge on the indictment, a contravention of section 27(7) of the Criminal Procedure (Scotland) Act 1995. On 27 October 2003 he was found guilty of that charge, under deletion of the words "and permanent disfigurement". The terms of the charge on which the appellant was convicted were as follows:

"On 20 February 2002, at Farmeloan Road, Rutherglen, Glasgow you did assault Thomas Parker ... and did present a screwdriver or similar instrument at him, threaten to stab him, push him against a wall, strike him on the body with said screwdriver or similar instrument to his injury, seize hold of his taxi keys, demand his money box in exchange for said keys, demand money from him and did rob him of a box and £35 or thereby of money."

Following conviction, on 22 December 2003 the appellant was sentenced to 12 months imprisonment on that charge.

[2] At the trial, two witnesses were led by the Crown. These were the complainer, Thomas Parker, and Police Sergeant James Matthews. Two witnesses were led on behalf of the appellant, the appellant himself and his girlfriend, Jan Mitchell. A special defence of alibi had been lodged on behalf of the appellant, which was to the effect that, at the time of the alleged assault and robbery, he was within flat 3/2, 23 Farmeloan Road, Rutherglen, Glasgow. The appellant lived at that address, along with his girlfriend and her mother, whose flat it was. Miss Mitchell was a prostitute who plied her trade in Glasgow city centre.

[3] The complainer was a married man, with a family. At the time of the offence he was a taxi driver. He testified that, in the early hours of 20 February 2002, he had picked up Miss Mitchell in Glasgow city centre and taken her to her home in Farmeloan Road. He accepted that he had known that she was a prostitute and that he had previously taken her home. According to the complainer, Miss Mitchell had told him that she had no money and had asked him to come up to her house in order to be paid. He had done so, taking with him his money box from the taxi. In the house, Miss Mitchell had taken him to a bedroom and had then come in and paid him. He had then left the flat and descended the stairs, taking his money box with him. As he was approaching the close door, a man armed with a small screwdriver had come into the close, threatened to stab him and pushed him against the wall. In the course of a struggle, he had been struck on the body with the screwdriver, sustaining an injury. He had also dropped his taxi keys, which his attacker had picked up. His attacker had demanded that he hand over his money box in return for the keys and, fearing the loss of his taxi more than the loss of his money, he had done so. His attacker had then left the close and run off. The complainer had driven to Rutherglen Police Office, which was very close by, and had told the officer there what had happened. This officer had left the police office with him and the two of them had headed back to 23 Farmeloan Road in a police car. As they were approaching this address, the complainer's attacker had come around the corner of the building, carrying the complainer's money box, and had gone up to and entered the close at No. 23. The complainer and the police officer had made their way to the close door. As they opened the door, the police officer had passed the complainer and had gone up the stairs after the complainer's attacker. Behind the door, the complainer's money box and money had been found lying scattered on the floor. The complainer had followed the officer upstairs. The front door of Miss Mitchell's flat had been open, and through the door he had been able to see the person who had attacked and robbed him sitting on a settee. In relation to identification, the complainer positively identified the appellant in court as his attacker. He positively identified Crown Label 1 as the jacket worn by his attacker. He identified Crown Label 2 as his money box.

[4] In cross-examination it was put to the complainer that, far from going to Miss Mitchell's flat to obtain payment of her taxi fare, he had gone to have sex with her. He was asked why Miss Mitchell could not have paid him from her night's earnings, and, in any event, why he had required to spend some time in a bedroom. It was also put to the complainer that he and Miss Mitchell had had previous sexual encounters. These matters the complainer denied. In relation to the assault and robbery, it was put to him that he was mistaken in identifying the appellant as the person who had carried out any assault and robbery of which he had been the victim. Questions affecting the reliability of his identification were put to him.

[5] Police Sergeant James Matthews testified that he had been on duty at Rutherglen Police Office when the complainer had appeared in the office. He had complained of having been assaulted and robbed. Sergeant Matthews and the complainer had set out for 23 Farmeloan Road. As they approached it, a man wearing Crown Label 1 and carrying Crown Label 2 had reached the close door. Sergeant Matthews identified the man as the appellant. Inside the close door the money box and money had been found lying on the floor. Sergeant Matthews had heard the sound of someone running upstairs. He had gone up the stairs after them. The only flat with a light on had been the one which turned out to be Miss Mitchell's. Inside the flat, he had found the appellant. He had also found Crown Label 1 partially under a bed. In cross-examination, it was suggested that Sergeant Matthews was mistaken in his identification of the appellant, which suggestion the Sergeant rejected.

[6] The appellant testified that he had been in Miss Mitchell's flat throughout. He had been in the flat when she had brought home the complainer. He had understood the complainer to be a client of hers. He had seen the complainer at the open livingroom door, when Miss Mitchell had stopped to speak to him as she and the complainer were making their way to the bedroom. He had not left the flat either before or after the complainer had gone. He accepted that Crown Label 1 was his but said that Miss Mitchell had worn it that evening to go into town.

[7] Miss Mitchell testified that she and the complainer had had a number of previous sexual encounters and that, on the date in question, they had gone to the bedroom to have sex. She also testified that the complainer had been with her, at the open livingroom door, when she had stopped to speak to the appellant. She also gave evidence to the effect that the appellant had still been in the house when the complainer left, and had remained in the house until the police came. She testified that she had been wearing Crown Label 1 that night.

[8] During the course of that trial, on the morning of Monday 27 October 2003, Mr. Lavery on behalf of the appellant had moved the sheriff to desert the diet pro loco et tempore. He advised the sheriff that the procurator fiscal depute had shown him a statement which the complainer had given to detective officers at 4.30 a.m. on 20 February 2002. That statement was in the following terms:

"I have previously given a statement to the police which I want to change. I originally told the uniform officers that I had dropped off an unknown passenger in Farmeloan Road, Rutherglen. I actually know the passenger as Jan. I know she is a prostitute and I have picked her up a couple of times in Glasgow and brought her home. Earlier on tonight I arranged to go up to her house to spend some time with her in her room. It was about twenty to four. I left her house about ten minutes later. As I was about to leave the close, a male with a dark padded anorak suddenly shouted 'Gees yer fucking money or I'll stab you'. The rest of the story is a true account of what happened. I only said what I did because I didn't want anyone to know I was with the girl."

At the stage when this statement was shown to Mr. Lavery, the complainer had already completed his evidence. It appears that the procurator fiscal depute told Mr. Lavery that she had been given the papers for the trial shortly before it commenced and had not initially been aware of the existence of the statement. For that reason it had not been disclosed to those acting for the appellant. It was against that background that the sheriff was moved to desert the diet pro loco et tempore. Having heard argument on the matter the sheriff declined to do so. Subsequently the sheriff granted a motion made on behalf of the appellant under section 268(1) of the 1995 Act and allowed the complainer's statement, narrated above, to be read to the jury, together with the terms of a Joint Minute in which the making of the statement was the subject of agreement.

[9] The appellant appeals against his conviction on grounds which are set out in the Note of Appeal and also in certain additional grounds of appeal. A large part of the original grounds of appeal consist in a description of the procedure in the trial which we have described. The essence of the appellant's complaint is embodied in the following paragraph:

"It is submitted that the sheriff erred in law in refusing to desert the indictment pro loco et tempore. The defence were accordingly deprived of the opportunity of demonstrating in no uncertain terms to the jury in a clear and unambiguous fashion during cross-examination of the complainer that he had not only lied to the police but that he had also lied to the jury in his evidence. This clearly could have had a major impact on his credibility and as such the appellant has suffered grave prejudice which was not adequately dealt with by allowing the statement to be read to the jury in a Joint Minute. It must also be taken into account that the appellant was convicted by a majority verdict."

In the additional grounds of appeal it is said:

"Separatim it was the Crown's duty to disclose the statement to the defence in advance of the trial or at least before he had given evidence. Had that been done it would have permitted the defence to challenge the complainer in cross-examination as to the contents of the statement. In any event the Crown ought to have invited the court to exercise its power under section 263(5) of the 1995 Act to allow the complainer to be recalled. In inviting the jury to convict, having failed to disclose the statement at the proper time, the procurator fiscal was acting in a way which was incompatible with the appellant's right to a fair trial guaranteed by Article 6(1) of the Convention. Reference is made to section 57(2) of the Scotland Act 1998. Separatim it was the court's duty to ensure that the appellant received a fair trial at common law and under reference to Article 6(1) of the Convention. To ensure that the trial was fair in the present case the court should have directed that the witness be recalled rather than follow the course referred to in the ground of appeal."

[10] When this appeal came before us, the Advocate depute on behalf of the Crown stated that the Crown did not intend to support the conviction. It was recognised that, at the trial, but only at an advanced stage, the procurator fiscal depute had become aware of the statement given by the complainer, which contradicted the evidence which he had given in court. The Crown took the view that on the basis of Holland v H.M. Advocate 2005 S.L.T. 563 and Sinclair v H.M. Advocate 2005 S.C.C.R. 446 the failure to disclose the statement to the defence had resulted in the defence being deprived of a proper opportunity to prepare its case. The credibility and reliability of the complainer were crucial in the trial. The statement which had not been disclosed at an appropriate stage was of the first importance in relation to the issue of the complainer's credibility. Given the unfortunate circumstances which arose in the trial, the Crown considered that the proper course would have been for the diet to have been deserted pro loco et tempore. A possible, but less satisfactory course would have been for the complainer to have been recalled to the witness box in terms of section 263(5) of the 1995 Act, although there would have inevitably been uncertainty as to the effect of such a recall. It was not clear that the putting of the statement to the complainer, after being recalled to the witness box, would have had the same effect upon his demeanour as a witness as it would have done had it been put to him in his evidence in the first instance. The element of surprise might well have been lost.

[11] In all these circumstances, we have reached the conclusion that the conviction of the appellant on charge 1 in the indictment must be quashed. We consider that there was a most unfortunate failure on the part of the Crown to disclose to the defence the existence of the statement in question, with the result that the defence were not enabled to prepare and properly conduct their defence. In our view, the result was that the appellant did not receive a fair trial. In that situation, the conviction cannot stand. We think it appropriate to observe that it is most regrettable that, apparently, the procurator fiscal depute did not have sufficient opportunity, prior to the commencement of this trial, to acquaint herself thoroughly with the contents of the papers which related to it, with the result that she was not initially aware of the existence of the statement in question. In consequence, it was not disclosed until very late in the trial. Plainly, every effort ought to be made to ensure that prosecutors are afforded adequate time in which to prepare cases prior to trial.