John Gerard Kearney V. Procurator Fiscal Greenock
| Jurisdiction | Scotland |
| Judge | Lord Abernethy,Lord Nimmo Smith,Sheriff Principal C.G.B. Nicholson |
| Neutral Citation | [2007] HCJAC 4 |
| Court | High Court of Justiciary |
| Date | 13 December 2006 |
| Published date | 04 January 2007 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Abernethy Lord Nimmo Smith C.G.B. Nicholson, CBE, QC, | [2007] HCJAC 4 Appeal No: XJ 1429/05 OPINION OF THE COURT delivered by C.G.B. NICHOLSON, CBE, QC in APPEAL BY STATED CASE in causa JOHN GERARD KEARNEY Appellant; against PROCURATOR FISCAL, GREENOCK Respondent: _______ |
Respondent: Stewart, QC, A.D.; Crown Agent
13 December 2006
[1] This is an appeal by way of stated case against a conviction after trial on a charge of breach of the peace. That charge set out that:
" ..... on a date between 01 April 2005 and 8 April 2005, exact date unknown, at Kilblain Street, Greenock you JOHN GERARD KEARNEY did conduct yourself in a disorderly manner approach Kirsty Spence and Paula Mitchell, both c/o Strathclyde Police, seize said Kirsty Spence by the hand, refuse to release her hand, utter sexually explicit comments, invite said Kirsty Spence and Paula Mitchell to attend at a house with you, place them in a state of fear and alarm and commit a breach of the peace."
[2] The foregoing charge called for trial before the sheriff at Greenock on 14 June 2005, at which stage the appellant was represented by a solicitor. Having heard the evidence, the sheriff found the appellant guilty as libelled. Thereafter the case was continued for the preparation of various reports and, on 2 August 2005, the sheriff imposed a fine of £750 and placed the appellant on the Sex Offenders' Register for a period of five years. The sheriff's decision was thereafter appealed by way of stated case.
[3] For reasons to which we turn shortly the appeal was not in fact heard by this Court until 13 December 2006. On that date, having heard counsel for the appellant and the advocate depute in reply, we allowed the appeal on one ground, and intimated that our reasons would be given in writing at a later stage. Those reasons are set out later in this Opinion; but, first, it is appropriate to narrate the history of this case during the period between the date of the sheriff's determination and the date of the hearing of the appeal, not least on account of the fact that the appellant's grounds of appeal changed to a significant extent during that period.
The background to the hearing of the appeal
[4] Following on the appellant's conviction an application for a stated case was lodged on 9 August 2005. Although that application has the appearance of having been prepared by a solicitor, it was in fact signed and presented by the appellant in person; and, as the sheriff has told us in his Note to the Stated Case, the appellant appeared in person at the hearing on adjustments which took place on 22 September 2005. In the application for a stated case the matters which the appellant sought to bring under review were:
"a) There was an insufficiency of evidence to convict;
b) The nature and extent of the Crown evidence lacked the necessary
credibility and reliability to convict; and
c) On the findings of fact, a breach of the peace was not committed.
Further on the findings of fact a Breach of the Peace with an aggravation relating to a sexual element was not committed."
[5] The Stated Case, as adjusted, was duly lodged; and 16 December 2005 was assigned as a diet for the hearing of the appeal. On that date, however, having heard counsel for the appellant and the advocate depute in reply, the Court discharged the diet of appeal and granted leave for amended grounds of appeal to be lodged. "Adjusted" grounds of appeal were duly lodged on 17 January 2006 in the following terms:
"1. The learned sheriff erred in holding that the Crown had established that the offence had occurred between the 1st and 8th of April. The Crown libelled the date in question 'on a date between the 1 April 2005 and 8 April 2005, exact date unknown'. The Complainers said that the incident had taken place 'during the Easter school holidays' but 'were unable to state to the Court the date when the incident took place' (Finding in Fact 4).
2. The learned sheriff erred in finding that esto the evidence of the complainers was both credible and reliable, the circumstances amounted to a breach of the peace in terms of SMITH V DONNELLY 2001 SCCR 800."
[6] At a procedural hearing on 9 February 2006 the Court allowed the foregoing grounds of appeal to be received, and continued the hearing to a further procedural hearing on 9 March 2006 to allow disclosure by the Crown and consideration by those representing the appellant as to the possible lodging of additional grounds of appeal. Thereafter, further procedural hearings took place on 9 March, 13 April, and 26 May, after which an additional ground of appeal was lodged on behalf of the appellant. It was in the following terms:
"3. The Crown failed to disclose the relevant witness statements. They were obliged to do so having regard to their obligations under the common law and Article 6(1) of the Convention. The failure referred to deprived the Defence of the opportunity to properly prepare and present the appellant's defence. In inviting the Sheriff to convict, in the absence of disclosure, the Lord Advocate, through the Procurator Fiscal, was acting oppressively et separatim incompatibly with the appellant's right to a fair trial guaranteed by Article 6(1). Such an act was ultra vires. Reference is made to section 57(2) of the Scotland Act 1998. Accordingly there has been a miscarriage of justice."
[7] Following on the lodging of the foregoing additional ground of appeal the case called for a further procedural hearing on 16 June 2006. At that hearing the Court allowed the further ground of appeal to be received; and, in light of the fact that, by then, there were three new grounds of appeal in place of those originally set out in the application for a stated case, the sheriff was requested to provide the Court with a supplementary report. The Court also directed that a further procedural hearing should be assigned for a date subsequent to receipt of that supplementary report.
[8] The sheriff's supplementary report was received at the end of June and, on 12 September 2006, a further procedural hearing took place at which the appeal was continued for a full hearing on a date to be afterwards fixed. As noted above, that hearing took place on 13 December 2006. As a consequence of the various adjustments and additions which had occurred during the preceding year there were by that stage three new or adjusted grounds of appeal before the Court. Stating them shortly, they related to: (1) the issues surrounding the date of the alleged offence; (2) the question whether the activity complained of amounted to a breach of the peace; and (3) the issue concerning disclosure.
Facts found proved by the sheriff
[9] So far as relevant for present purposes the sheriff's findings in fact are as follows:
"1. The complainers, Kirsty Spence and Paula Mitchell, suffer from learning difficulties and attend a special school.
2. The appellant is known to the complainers. He has, on occasion, been the driver of the school bus transporting the complainers to school.
3. The complainers were unable to state to the Court the date when the incident took place. The complainers stated that the incident took place during the Easter school holidays. On the date in question, the complainers, along with another friend, had travelled to Braehead Shopping Centre, Renfrew. On their return to Greenock, it was the intention of Kirsty Spence to spend the night with the other complainer, Paula Mitchell. Kirsty and Paula returned to Kirsty's home for some clothes.
4. They then came in to Greenock town centre to get the bus to Paula's house. It was late and dark and they were sitting on a wall at the bus terminus at Kilblain Street, waiting for their bus. The appellant came over to the two girls and took hold of Kirsty's hand. Kirsty asked him to let go. The appellant was holding Kirsty's hand tightly and refused to release her hand.
5. The appellant then turned to Paula and said, "She's a nice girl, but she could not handle me in bed". He was referring to Kirsty. This was a sexually explicit comment.
6. The appellant said this on more than one occasion. The appellant let go of Kirsty's hand after repeating the comment he had made to Paula three times. The appellant then asked both complainers if they wanted to go up to his brother's house and if they wanted his phone number. The complainers said no.
7. The complainers thought the appellant was serious. The complainers were scared about the things said to them by the appellant. The appellant walked away towards Greenock town centre. The appellant's conduct was genuinely alarming and disturbing to a reasonable person."
[10] The sheriff goes on to narrate that, initially, the...
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