A V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Emslie,Lord Bonomy,Lord Marnoch |
| Judgment Date | 21 February 2012 |
| Neutral Citation | [2012] HCJAC 29 |
| Docket Number | XC829/10 |
| Court | High Court of Justiciary |
| Date | 21 February 2012 |
| Published date | 22 February 2012 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Bonomy Lord Emslie Lord Marnoch | [2012] HCJAC 29 Appeal No: XC829/10 OPINION OF LORD BONOMY in APPEAL AGAINST CONVICTION by "A" Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Paterson, Solicitor Advocate; Paterson Bell
Respondent: MacSporran, A.D.; Crown Agent
21 February 2012
Background
[1] Over recent years there has been an increasing tendency for advocates conducting trials to put the terms of statements previously made by witnesses in the course of the police investigation to these witnesses during examination or cross-examination. This practice has coincided with the extension of the purposes for which reference may be made to witness statements. It is a regular feature of this practice that the purpose is not clearly identified at the outset and that the examination proceeds in a fairly haphazard way.
[2] Since the Evidence (Scotland) Act 1852 it has been possible to examine a witness about the terms of a statement apparently inconsistent with his evidence in court with a view to either eliciting the truth or discrediting him. The current statement of that rule is to be found in section 263(4) the Criminal Procedure (Scotland) Act 1995 ("1995 Act") which is in the following terms:
"(4) In a trial, a witness may be examined as to whether he has on any specified occasion made a statement on any matter pertinent to the issue at the trial different from the evidence given by him in the trial; and evidence may be led in the trial to prove that the witness made the different statement on the occasion specified."
[3] In the event the witness may accept that the statement contains the truth, in which case that becomes part of his evidence. If he does not do so, then the statement, if thereafter spoken to in evidence by the officer who took it, is available to the jury as a possible reason for rejecting the evidence of the witness as untrue or unreliable. Under this rule the statement can never, of itself, be evidence of the truth of its contents.
[4] At common law it was recognised that there were certain circumstances in which a prior statement might fill a gap in the evidence and amount to acceptable evidence of the truth of its contents. It is encountered most frequently in identification evidence, as eg in Muldoon v Herron 1970 JC 30, 1970 SLT 228. A clear statement of that rule is to be found in Jamieson v HM Advocate (No. 2) 1994 SCCR 610 at page 618 where the Lord Justice General (Hope), in delivering the Opinion of the Court, said:
"The Muldoon case dealt with the position of a missing link in evidence of identification. The opinions in that case, including the dissenting opinion by Lord Wheatley, were all directed to the question of identification evidence and the case does not provide direct authority for the direction which was given by the trial judge in this case. But in our opinion the principle upon which the evidence of identification was held to be admissible in that case is of wider application and is not confined to identification evidence. Where a person identifies the alleged culprit to police officers, he is in effect telling them what he saw. He is making a statement to the police officers which is a statement of fact and ought, if possible, to be spoken to by the witness in the witness box. But if he is unable to recollect what he said to the police when he comes to give evidence, the gap in his recollection can be filled by what police said he said to them at the time. This evidence, when taken with the witness's own evidence that he made a true statement at the time to the police, is held to be admissible because there are two primary sources of evidence. One is the evidence of the police officers as to who was in fact identified and the other is the witness's own evidence that he identified the culprit to the police. The consistency between these two pieces of evidence provides the link between them and completes the chain. As Lord Cameron said in Muldoon at p.46, neither of these facts proves identity, but both are elements in the structure of evidence from which identification may be held proved.
In the present case there were two primary sources of evidence. One was the evidence of DC Farman as to what Marianne Robertson said to him in her statement. The other was Marianne Robertson's evidence that she made a statement to the police officer and that what she said to him at the time was true. Her evidence that she had made a statement to the police officer did not go to the length of admitting any of the details of what she may have said to him. She said that she could not remember this, so there was a gap in her evidence. But her evidence that she told the police the truth and that, if she said at the time she saw the appellant hitting Camy it must be true, had the effect, as the trial judge said, of incorporating her statement to the police into her own evidence."
There are four elements necessary before the statement can be treated as evidence of the truth of its contents: the witness must be able to remember giving a statement to the police; the witness must be able to say that the statement was true; the witness must be unable to recollect the events spoken to in the statement; and a police officer must give evidence of recording the statement and its contents. Although there was reference in counsels' submissions in that case to "adoption" that was not part of the ratio.
[5] Then in Section 260 of the 1995 Act a further rule was introduced in the following terms:
"260 Admissibility of prior statements of witnesses.
(1) Subject to the following provisions of this section, where a witness gives evidence in criminal proceedings, any prior statement made by the witness shall be admissible as evidence of any matter stated in it of which direct oral evidence by him would be admissible if given in the course of those proceedings.
(2) A prior statement shall not be admissible under this section unless -
(a) the statement is contained in a document;
(b) the witness, in the course of giving evidence, indicates that the statement was made by him and that he adopts it as his evidence; and
(c) at the time the statement was made, the person who made it would have been a competent witness in the proceedings.
(3) For the purposes of this section, any reference to a prior statement is a reference to a prior statement which, but for the provisions of this section, would not be admissible as evidence of any matter stated in it.
(4) Subsections (2) and (3) above do not apply to a prior statement-
(a) contained in a precognition on oath; or
(b) made in other proceedings, whether criminal or civil and whether taking place in the United Kingdom or elsewhere,
and, for the purposes of this section, any such statement shall not be admissible unless it is sufficiently authenticated.
(5) A prior statement made by a witness shall not, in any proceedings on indictment, be inadmissible by reason only that it is not included in any list of productions lodged by the parties."
Sub-section (3) makes it clear that this provision addresses a different situation from that exemplified by Jamieson (No. 2). There is no requirement that the witness must be unable to recollect the events spoken to in the statement. In addition there is a requirement that the statement must be in a document and sufficiently authenticated.
[6] Reverting to what I said at the outset, because the reason for resorting to the statement is often unclear when it is first referred to, the examination of witnesses appears at times to be conducted on the basis either that statement-generated evidence can be reviewed at the close of the evidence and a decision then made on the use or uses to which it may be put, or that it can be left to the trial judge to give appropriate directions to the jury on how to treat it. We were referred to an example (Hughes v HM Advocate [2010] HCJAC 84) where an interview was played in full, the jury having transcripts before them. In that situation it may be arguable that different statements from different parts of the interview may be used in a variety of ways. The present case illustrates not only how confusing the evidential picture can become, but also how difficult the task of charging the jury can thus be made.
Circumstances of this Case
[7] The appellant was convicted of assault to severe injury and permanent disfigurement by striking the complainer, on the head with a broken bottle or similar instrument. The complainer unequivocally identified the appellant as the assailant. Although he was referred to his police statement in the course of his evidence, the use made of that particular statement was not an issue in the appeal.
[8] The attack took place against the background of a drugs deal. The complainer was to meet the appellant and his friends "B", "C" and "D" by arrangement, to supply them with drugs. The appellant did not give evidence; the complainer and the other three did. The sheriff stated in his report:
"... so this was a case in which credibility and reliability of the evidence of these four witnesses in relation to the assault which was said to have taken place immediately after the drugs transaction was an important aspect of this case."
The appellant incriminated "B" and the tenor of the cross-examination of the witnesses was to the effect that the assault had been committed by "B" and not by the appellant. It was accepted that the complainer had been assaulted. The issue was whether the Crown had proved that the appellant was the assailant. The evidence of "D" does not appear to have been of any consequence. Corroboration of the complainer's identification of the appellant could be found only in the evidence of "C" and/or "B". Both were referred to their statements in examination-in-chief and cross-examination.
[9] Apart from the usual directions about assessing...
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