Matthew Strannigan Smith George V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Osborne,Lord Carloway |
| Neutral Citation | [2011] HCJAC 33 |
| Docket Number | XC396/06 |
| Court | High Court of Justiciary |
| Published date | 19 April 2011 |
| Year | 2011 |
| Date | 19 April 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Osborne Lord Carloway Lord Reed | [2011] HCJAC 33 Appeal No: XC396/06 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST CONVICTION by MATTHEW STRANNIGAN SMITH GEORGE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Di Rollo Q.C.. Gianni; Ormistons Law Practice, Glenrothes
Respondent: Prentice Q.C., Solicitor Advocate, A.D.; Crown Agent
19 April 2011
The Background Circumstances
[1] The appellant, along with John Penman Muldoon, faced an indictment containing 85 charges, on 18 of which he was convicted, after trial. Subsequently, a sentence of 10 years imprisonment was imposed upon the appellant. After deletions by the Advocate depute and deletions by the jury, the terms of the charges upon which the appellant was convicted were as follows:
"(1) on various occasions between 12 October 1978 and 5 February 1981, both dates inclusive, at Kerelaw School, Kerelaw Road, Stevenston and at the area of Portencross, Ayrshire or elsewhere to the prosecutor unknown you...did assault W L S, born 10 October 1964...then a pupil at said school and push him down a set of stairs there, repeatedly punch him on the head and body, strike him on the head with a paintbrush and with your open hand, seize him by the jaw and twist same, all to his injury;
(3) on various occasions between 16 November 1978 and 30 May 1980, both dates inclusive, at Kerelaw School...you...did assault G M, born 1 September 1964...then a pupil at said school and repeatedly punch him on the head and body and repeatedly kick him on the body, strike him on the head and body with your open hand, seize him by the hair and clothing, strike him and throw him against walls and doors, all to his injury;
(4) on various occasions between 16 November 1978 and 30 May 1980, both dates inclusive, at Kerelaw School...you...did assault G M, born 1 September 1964...then a pupil at said school, seize his hand and compel him to handle your private member and masturbate him, seize his hair, attempt to insert your private member into his mouth and compel him to suck same, repeatedly strike him on the head with your open hand, masturbate in his presence and attempt to penetrate his hinder parts all to his injury;
(5) on various occasions between 16 November 1978 and 30 May 1980, both dates inclusive, at Kerelaw School...you...did conduct yourself in a disorderly manner, make indecent remarks, expose your private member in the presence of G M, born 1 September 1964...then a pupil at said school and to other pupils at said school whose identities are to the Prosecutor meantime unknown, place said G M in a state of fear and alarm for his safety and you did commit a breach of the peace;
(6) on one occasion between 10 April 1979 and 1 September 1981, both dates inclusive, at Kerelaw School...you...did assault R S N, born 3 May 1965...then a pupil at said school and seize him and push and pull at him, and throw him against a wall and window, all to his injury;
(7) on one occasion between 17 October 1979 and 31 December 1980, both dates inclusive, within a motor vehicle at Glasgow Airport, Paisley you...did assault S R or J, born 18 November 1964...then a pupil at said school and repeatedly punch him on the head and body, seize him by the clothing, all to his injury;
(8) on an occasion between 17 October 1979 and 31 December 1980, both dates inclusive, the precise date being to the Prosecutor unknown, at Kerelaw School...you...did assault S R or J, born 18 November 1964...then a pupil at said school and insert your private member into his mouth;
(9) on various occasions between 29 March 1979 and 31 December 1979, both dates inclusive, at Kerelaw School...you...did assault D P E, born 17 February 1966, ...then a pupil at said school and repeatedly punch him on the head and body, strike him on the head with your open hand, seize him by the neck and compress same, all to his injury;
(10) on various occasions between 29 March 1979 and 31 December 1979, both dates inclusive, at Kerelaw School...you...did use lewd, indecent and libidinous practices and behaviour towards D P E, born 17 February 1966, ...then a pupil at said school and make indecent remarks to him;
(11) on an occasion between 25 January 1978 and approximately 14 September 1979, both dates inclusive, at Kerelaw School...you...did assault A M M, born 24 February 1965, ...then a pupil at said school and repeatedly strike him on the head and body with your elbow, to his injury;
(12) on an occasion between 25 January 1978 and approximately 14 September 1979, both dates inclusive, the precise date to the prosecutor unknown, at Kerelaw School...you...did assault A M M, born 24 February 1965...then a pupil at said school and repeatedly insert your private member into his mouth to the emission of semen and repeatedly strike him on the head with your open hand, to his injury;
(13) on various occasions between 25 January 1978 and approximately 14 September 1979, both dates inclusive, at Kerelaw School, ...you...did conduct yourself in a disorderly manner, make indecent remarks, expose your private member in the presence of A M M, born 24 February 1965...then a pupil at said school and in the presence of other pupils whose identities are to the Prosecutor meantime unknown and you did commit a breach of the peace;
(14) on various occasions between 5 April 1979 and 18 June 1981, both dates inclusive, at Kerelaw School...you...did assault J A T, born 18 June 1965 ...then a pupil at said school and repeatedly punch and kick him on the head and body and strike him on the head with your open hand, all to his injury;
(20) on an occasion between 18 September 1986 and 15 April 1989, both dates inclusive, at Kerelaw School...you...did, while acting along with others, assault S MacD, born 15 April 1971... , then a pupil at said school and throw an apple at him whereby said apple struck him on the head and attempt to gouge his eyes with your fingers, all to his injury;
(21) on an occasion between 18 September 1986 and approximately 15 April 1989, both dates inclusive, the precise date being to the Prosecutor unknown, at the house occupied by you at 130 Greenock Road, Largs or elsewhere to the Prosecutor unknown you...did assault S MacD, born 15 April 1971... then a pupil at Kerelaw School, ...place a blindfold over his eyes, and repeatedly insert your private member into his mouth;
(24) on various occasions between 4 November 1986 and 31 August 1988, both dates inclusive, at Kerelaw School...you...did assault M P, born 1 August 1972...then a pupil at said school and repeatedly punch him on the head and body and kick him on the body, seize him by the throat and compress same, strike him on the head and body with a ruler, seize him by the hair, force his arms up his back and strike him with sports balls, all to his injury;
(25) on various occasions between 4 November 1986 and 31 August 1988, both dates inclusive, at Kerelaw School...and in a motor car on various country roads in the Stevenston area you...did assault M P, born 1 August 1972, then a pupil at said school and handle his private member, insert your private member into his mouth and compel him to suck same and handle your private member;
and
(45) on various occasions between 9 February 1993 and 1 August 1995, both dates inclusive, at Kerelaw School...you...did assault CGG, born 29 June 1978...then a pupil at said school and seize her by the clothing, and strike her on the head with your open hand, all to her injury."
[2] The appellant has now appealed against his conviction on a number of grounds. Certain of the grounds originally tendered have been withdrawn and, in relation to others, leave to appeal has been refused. The grounds of appeal that are before the court, in respect of which leave to appeal has been granted, are in the following terms:
Ground 1A:
"The purported disclosure to the defence of the documents contained within the Kerelaw Document Room at Ayr Police Office was wholly inadequate and resulted in a miscarriage of justice in respect that the restrictions imposed by the Crown and Police under which the defence were permitted to view documents: (i) prevented trial counsel, agent and appellant attending together and searching for and viewing documents; (ii) ensured that the Police and the Prosecution knew what documents had been requested and viewed and were considered important enough by the Defence to copy; (iii) entailed that all documents copied by the Defence would be sent to the prosecution and included as Crown productions; (iv) meant that conversations between counsel, agents and appellant whilst in the Kerelaw Document Room were monitored by a police officer; (v) was such that documents were only made available in respect of persons where Defence could quote a date of birth."
Ground 2:
"The failure of the Crown to disclose to the Defence copies of all statements, including statements made to Social Work investigators by the complainers in respect of their complaints about the conduct of staff, including the appellant, at Kerelaw School prior to the trial of the appellant, in the hands of the police or produced by the investigation into alleged abuse of children at Kerelaw School that was carried out in 2004 by Glasgow City Council working with the police ('the 2004 Kerelaw Inquiry') resulted in a miscarriage of justice. In particular it is known that S MacD (Crown witness 14) gave a statement to the Social Work Investigative Team on 10 October 2004 ('the 2004 MacD statement') which was not disclosed. It is believed that this statement was taken as part of the 2004 Kerelaw Inquiry. The 2004 MacD statement was inconsistent with the evidence given by Mr MacD at the trial on Thursday 23 February 2005 and with the terms of Mr MacD's disclosed police statement dated 11 January 2005 in that no mention was made in the 2004 MacD statement of a sexual...
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