George Stewart V. Procurator Fiscal, Dundee
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lord Mackay of Drumadoon,Lord Carloway |
| Neutral Citation | [2012] HCJAC 167 |
| Court | High Court of Justiciary |
| Published date | 20 December 2012 |
| Year | 2012 |
| Date | 21 December 2012 |
| Docket Number | XJ808/12 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Mackay of Drumadoon Lord Philip | [2012] HCJAC 167 Appeal No: XJ808/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEAL by GEORGE STEWART Appellant; against PROCURATOR FISCAL, DUNDEE Respondent: _______ |
Appellant: Duff; Capital Defence (for Boyles, Forfar)
Respondent: Brodie, QC, AD; the Crown Agent
21 December 2012
1 Procedure
[1] On 11 January 2012, at the Sheriff Court in Dundee, the appellant was found guilty of a charge of assault on a summary complaint, which as libelled read that:
"on 20 July 2010, at the East Port Bail Hostel ... Dundee [he] ... and (ST) did, while on duty as police constables, assault (AP), an employee there, and did handcuff her arms to a window, wrap sellotape around her head and cause her breathing to be restricted, all to her injury".
The sheriff convicted the appellant under deletion of the words "did handcuff her arms to a window", although he now considers that he should have convicted the appellant as libelled (see infra). The appellant was ordered to pay compensation of £1,000 to the complainer. The co-accused, ST, was acquitted.
[2] The incident concerned the activities of the appellant and his female colleague, ST, when, in the course of their duties, they visited a bail hostel where the complainer, AP, aged 47, was a social care assistant.
[3] Two matters require to be taken note of in limine. The first is that the appellant had previously been an accused in a prosecution under the Data Protection legislation. During that case, the sheriff, who convicted the appellant in the present proceedings, had presided at an intermediate diet at which an issue arose concerning the admissibility of statements made by the appellant to senior police officers. The contention for the appellant then had been that the senior officers had, in some way, misled the appellant and that their actions had thereby been oppressive. The details of the prosecution and the evidence heard by the sheriff were not further explored before this court. However, on 10 January 2011, following upon the intermediate diet, the appellant had been disbelieved by the sheriff, who had favoured the testimony of the senior officers. The appellant was subsequently acquitted after trial by a different sheriff.
[4] The sheriff reports that on 27 July 2011, during an intermediate diet in the present case, he raised the subject of his prior involvement with the appellant with his agent and asked the agent if there was any difficulty over him presiding at the trial, given the previous proceedings. The agent said "No". The sheriff did not, himself, consider that there was any material difficulty in that regard, since he was able, in terms of his judicial oath, to dismiss from his mind any previous findings on the appellant's credibility and reliability. It is worthy of comment that the minutes of 27 July 2011 contain no note of this exchange. The sheriff appears to have accepted, at the stage of adjusting the stated case, that what occurred thereafter was that, upon learning that the sheriff was to preside at the trial, the agent had telephoned the sheriff clerk depute and asked the depute to request the sheriff not to preside at the trial in the circumstances. The depute had returned the call and advised the agent that it was the sheriff's intention to preside but that, if the agent wished to do so, the matter could be raised with the sheriff in court. Notwithstanding the instruction of counsel, no application inviting the sheriff to decline jurisdiction was made at the trial diet.
[5] The second matter to mention is that, the sheriff reports that, when the trial commenced on 24 November 2011, he instructed the sheriff clerk depute to record the proceedings digitally, albeit that this was a summary trial where no such recording was required by statute or otherwise. The sheriff did not advise the parties of the reason for instructing the recording, but he explains in the stated case that it was for his own purposes, should a dispute about the evidence have arisen. It appears that the testimony was recorded on that date, on 25 November and on 20 December 2011. However, on 9 January 2012, when testimony was being given by the appellant, the proceedings were not recorded. The sheriff attributes fault for this to a substitute sheriff clerk depute (said to be "new to Dundee"), who had been unaware of the sheriff's previous instruction. Meantime, prior to the resumption of the trial on 20 December, the appellant had requested transcription of the recording (at the appellant's expense). This was refused on 15 December 2011. The only reason given for seeking transcription was the importance of the case. Ultimately the sheriff did not require to consult the recording and relied on the adequacy of his own notes.
2 The evidence
[6] The sheriff observes correctly that, because one of the grounds of appeal is that he erred in repelling a "no case to answer" submission, he required to "set out the evidence adduced by the prosecution" (Wingate v McGlennan 1991 SCCR 133, LJC (Ross) at 136 para (3)). The sheriff appears to have taken this dictum literally. He has taken it upon himself to rehearse almost verbatim what appears to be almost the entire testimony in the trial, including irrelevant minutiae such as the complainer's shift patterns, the intricacies of the hostel's entry-phone system, the configuration of furniture in the hostel office and a series of propositions put to witnesses, which they denied. Much of this lengthy narrative is repeated when the sheriff comes to rehearse the submissions made to him. It is recognised, in this context, that the appellant listing 406 proposed adjustments could not have assisted the sheriff in his task and may have contributed to the length of the stated case (57 pages) and related procedural documentation (a further 162 pages).
[7] The sheriff's approach to the preparation of the stated case, in its dense sequential recording of testimony, is unhelpful and has added to the burden of this court in trying to identify the essential and relevant evidence, bearing upon the issue of sufficiency. It is accordingly necessary for this court to carry out what ought to have been a straightforward exercise of paraphrasing the testimony.
[8] The complainer said that she had known the appellant for some three years through her work at the hostel. Although she had only ever met the appellant there, she had communicated with him through social networking sites up until mid-2009. The communication had been of a friendly nature, involving a mild degree of sexual innuendo. Shortly before the incident in question, on 16 July 2010 the appellant and another officer had called at the hostel to interview one of the residents, who had been complaining about a sexual assault. On this occasion, there had been some exchange of banter between the appellant and the complainer, during which the appellant had "pinged" elastic bands at her. The complainer was not, she testified, sexually attracted to the appellant.
[9] On the day before the date libelled, the same resident, who had reported the sexual assault, had approached the complainer and asked her to contact the police in connection with an outstanding arrest warrant, to which she wished to surrender. Contact was made with the police and, some time after midnight, the appellant and a female colleague, ST, called at the hostel. The complainer left the hostel office to tell the resident. When she returned, she had praised the appellant for the way in which he had dealt with the resident previously. For reasons which the complainer was unable to fathom, the appellant had responded aggressively by accusing the complainer of checking up on him. He had grown annoyed and angry. The complainer had been taken aback, but had attempted to laugh off the situation by saying something along the lines of: "Please don't flatter yourself"; and "Oh dear, are you going to take me into custody as well now?"
[10] At this the appellant took out his handcuffs and put one cuff on the complainer's right wrist, saying: "Right, where will I attach this to?" She had said "Nowhere", but he had locked her to the ring of a sash window. He had asked her if it was sore and she had replied "No", although it had been. The appellant had then approached ST and asked for her handcuffs, which he was given. He returned to the complainer, who was beginning to panic, took her other arm and handcuffed it to the other ring of the window. She was then in a "crucifix" position. Both hands were above her head. She felt humiliated and vulnerable. The appellant had then gone to her desk and taken out a roll of sellotape. The complainer was now in an "utter panic". The appellant had approached her, taken her by the head, and had begun wrapping the sellotape round and round it, fixing her spectacles to her skin. She had screamed for her co-employee, namely MC, who came to her aid. After a short period, the appellant released the handcuffs.
[11] The complainer left the office and went to tell the resident to hurry up and go with the police. She returned and the resident appeared soon after and left with the police. At that stage the complainer had burst into tears and vomited. She had been off work for several weeks after the incident and had received counselling for trauma. She had had trouble breathing during the course of the incident and the sellotape had been wrapped around her head so tightly that her glasses had been sore against her face. She had deep indentations to her skin caused by the handcuffs. The complainer was clear that it was nonsense to suggest that she had "fully participated" and "consented" to what had taken place.
[12] MC, aged 44, gave evidence. She confirmed that the appellant and ST had come to arrest the resident. The complainer had gone to get the resident and, on...
To continue reading
Request your trial
- Stewart v Procurator Fiscal, Dundee
-
Her Majesty's Advocate Against Angus Robertson Sinclair
...[2001] UKHL 67; [2002] 2 AC 357; [2002] 2 WLR 37; [2002] 1 All ER 465; [2002] HRLR 16; [2002] HLR 16; [2002] BLGR 51 Stewart v Nisbet [2012] HCJAC 167; 2013 SCCR 264; 2013 SCL 209 The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Carloway), Lady Paton ......
-
Application For Extension Of Time In Which To Lodge A Bill Of Suspension By Alan Reid V. Procurator Fiscal, Kilmarnock
... ... , LJC (Carloway) at paras [18] and [19] citing O'Neill v HM Advocate 2013 SCCR 401 and Stewart v Nisbet 2013 SCCR 264, LJC (Carloway) at para [31]). Although the judicial oath does not provide a ... ...