Hill v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 24 February 2005 |
| Docket Number | No 27 |
| Date | 24 February 2005 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Macfadyen, Lord Nimmo Smith, Lord Brodie
Justiciary - Evidence - Whether statutory application to lead hearsay evidence may competently be determined prior to trial - Considerations in determining application - Admissibility - Evidence given in trial within a trial materially different from that given to jury - Whether direction to jury to ignore materially different evidence sufficient to prevent miscarriage of justice - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 259(2)(c)
Section 259(2)(c) of the Criminal Procedure (Scotland) Act 1995 provides that in certain circumstances hearsay evidence of a witness who would have been a competent witness at a trial may be led as evidence of any matter contained therein where all reasonable steps have been taken which in the circumstances could have been taken to find the witness.
The appellant was convicted of charges of theft by housebreaking and reset of a motorcar following trial on indictment in the sheriff court at Perth, on 7 August 2001. Prior to trial, the presiding sheriff had decided to allow the admission of hearsay evidence of a witness whom the Crown said it had taken all reasonable steps to trace for the trial. The defence had suggested several possible steps which might be taken at that stage, including repeating an attempt to trace the witness through her father, his correct address having been found at that stage. The procurator fiscal accepted that the steps suggested could be undertaken and the start of the trial delayed by a day while this was done.
During the course of the trial, a trial within a trial was held to determine the admissibility of evidence obtained during the searches of a motorcar without warrant. The evidence having been held to be admissible, the evidence of the police officers conducting the searches thereafter given was materially different from that given at the trial within a trial. The sheriff accordingly directed the jury to ignore the evidence of the police officers about the searches.
It was argued for the appellant that the decision to admit the hearsay evidence before the trial was premature, prior to further possible steps being taken to trace the witness which were accepted by the Crown as being practicable. Although there was a sufficiency of evidence against the appellant even if the hearsay witness's evidence was disregarded and it was not the principal evidence on charge 1, the verdict returned by the jury suggested that the jury had been significantly guided by that evidence. The correct conclusion in all the circumstances was that the admission of the hearsay evidence without proper fulfilment of the statutory criteria had resulted in a miscarriage of justice. The appellant also argued that the sheriff should have deserted the trialpro loco et tempore in light of the conclusion he reached that the evidence given before the jury was materially different from that given in the trial within a trial.
The Crown argued that the sheriff had a considerable discretion to assess the nature of the case and of the hearsay evidence and to determine the stage at which the application to admit it fell to be made. The statutory criteria did not fall to be applied with particular stringency. In relation to the evidence of the search, the sheriff had a discretion to exercise in determining what to do about the fact that the jury had heard inadmissible evidence and the course taken by him was within the proper scope of his discretion.
Held that: (1) the risk of prejudicing a fair trial through the admission of hearsay evidence was a consideration relevant to the proper assessment of whether the steps taken to find a witness amounted to all reasonable steps and the sheriff had erred in not having that consideration in mind when determining the application under sec 259 (para 21); (2) the point at which the admission of hearsay evidence must be determined is the point at which it is proposed to introduce the evidence and the sheriff had erred in concluding that the point at which the question of whether all reasonable steps had been taken required to be determined was the point at which the application was made to the court (para 22); (3) the direction to the jury to ignore the incriminating search evidence was insufficient where the jury had already been tasked with the evaluation of the incriminating untested hearsay evidence of the absent witness and the sheriff's direction to ignore the search evidence was insufficient to secure fairness to the appellant (para 25); and appealallowed.
Brian Hill was charged with theft by housebreaking and theft. Following trial in the sheriff court at Perth, he was convicted of theft by housebreaking and reset on 7 August 2001.
The pannel thereafter appealed to the High Court of Justiciary against conviction. Having previously called before the court in relation to certain grounds of appeal, the appeal called before the High Court of Justiciary, comprising Lord Macfadyen, Lord Nimmo Smith and Lord Brodie, for a hearing on the remaining grounds, on 2 February 2005.
Cases referred to:
Aslam v HM AdvocateSCUNK 2000 JC 325; 2000 SCCR 243
Campbell v HM Advocate; Hill v HM AdvocateSCUNK 2004 JC 1; 2004 SLT 135; 2003 SCCR 779
Fairley v Fishmongers of LondonSC 1951 JC 14; 1951 SLT 54
Lavery v Murray 1963 SLT (Notes) 3
Lawrie v MuirSC 1950 JC 19; 1950 SLT 37
N v HM AdvocateSCUNK 2003 JC 140; 2003 SLT 761; 2003 SCCR 378
Thompson v CroweSCUNK 2000 JC 173; 1999 SLT 1434; 1999 SCCR 1003
At advising, on 24 February 2005, the opinion of the Court was delivered by Lord Macfadyen-
Opinion of the Court-
[1] The appellant stood trial in Perth Sheriff Court on an indictment libelling against him and a co-accused three charges - two of theft by housebreaking, and one of theft of a motor vehicle and its contents. His co-accused did not appear, and the trial proceeded against the appellant alone. The trial commenced on 30 July 2001, and on 7 August 2001 the appellant was convicted of the first charge of theft by housebreaking, acquitted of the second such charge and in respect of the theft charge was found guilty of reset.
[2] The appellant lodged a note of appeal which set forth eleven grounds on which it was submitted that a miscarriage of justice had occurred. One of these, ground (c), raised an issue as to whether the admission of the hearsay evidence of a witness, Ingrid Angela Greatorex, under sec 259 of the Criminal Procedure (Scotland) Act 1995 ('the 1995 Act') was incompatible with the appellant's Convention rights under Art 6 of the European Convention on Human Rights. Argument was heard on that ground in this and another appeal on 30 September 2003. On 13 November 2003 the court refused the appeal so far as it had been argued and continued it in relation to the outstanding grounds of appeal (Campbell v HM Advocate; Hill v HM Advocate, para 19).
[3] When the case called before us for hearing in respect of the outstanding grounds of appeal counsel for the appellant intimated that he regarded grounds (c) and (e) as superseded by the decision of 13 November 2003; that he did not intend to argue grounds (g), (h) and (k); and that he did not propose to maintain ground (a) as it was formulated, although some of its content bore on the submissions he proposed to make in respect of ground (b). He then proceeded to argue grounds (b) and (d). Having done so, he intimated that he did not propose to make submissions in respect of grounds (f), (i) and (j). In the result, therefore, the only grounds of appeal that fall to be considered at this stage are grounds (b) and (d). All other grounds have either already been dealt with or been departed from.
[4] Shortly stated, the thrust of ground (b) is that the sheriff erred in holding at the stage when he did that the requirements of sec 259 for the admission of the evidence of Miss Greatorex in hearsay form had been satisfied. For the purpose of the argument considered at the hearing on 30 September 2003 it was assumed that the whole requirements of sec 259 were satisfied (see para 3, p 4). Ground (b), however, requires us now to consider whether those requirements were in fact satisfied.
[5] At common law, the general rule in criminal proceedings is that, subject to certain exceptions, hearsay evidence is inadmissible. Section 259 introduced a number of statutory exceptions to that general rule. For the purpose of the present appeal it is sufficient to concentrate on the following provisions of sec 259.
'(1) Subject to the following provisions of this section, evidence of a statement made by a person otherwise than while giving oral evidence in court in criminal proceedings...
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