APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Cosgrove Lord Philip	[2010] HCJAC 88 Appeal No: XC532/08 OPINION OF THE COURT delivered by LORD OSBORNE in NOTE OF APPEAL AGAINST CONVICTION by GAVIN HARDY CLARK Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: C Shead; Adams Whyte, Edinburgh

Respondent: A Mackay, A.D.; Crown Agent

27 August 2010

The background circumstances

[1] On 1 August 2008, at a sitting of the High Court in Edinburgh, the appellant was found guilty after trial of the following charges after the making of certain deletions by the jury:

"(1) On 3 August 2007 at 45 Hillside Crescent South, Gorebridge, Midlothian, you did assault Stuart Glenn ....struggle with him and stab him on the body with a knife or similar instrument to his severe injury, permanent disfigurement, permanent impairment and to the danger of his life and did attempt to murder him;

(2) On 3 August 2007 at 45 Hillside Crescent South and Hunterfield Road, both Gorebridge, Midlothian, and elsewhere in Midlothian you did have in your possession a controlled drug namely diamorphine, a Class A drug specified in Part I of Schedule 2 to the aftermentioned Act, in contravention of section 5(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, section 5(2);

(3) On 3 August 2007 within a police vehicle on the A7 road, near Dalkeith, Midlothian, you did assault Colin Peaston, Constable, Lothian and Borders Police, Dalkeith, Midlothian then in the execution of his duty and did bite him on the body to his injury: CONTRARY to the Police (Scotland) Act 1967, section 41(1)(a);

(4) On 3 August 2007 on a journey within a marked police vehicle between the Police Station, Dalkeith, Midlothian and the Royal Infirmary of Edinburgh, Little France Crescent, Edinburgh you did conduct yourself in a disorderly manner and did repeatedly shout, swear, utter threats of violence towards officers in said vehicle and did commit a breach of the peace; and

(5) On 3 August 2007 at the Royal Infirmary of Edinburgh, Little France Crescent, Edinburgh you did conduct yourself in a disorderly manner and did repeatedly shout, swear and behave in an aggressive manner placing staff and patients there in a state of fear and alarm and did commit a breach of the peace".

On the same date the trial judge imposed the following sentences: charge (1) 7 years imprisonment to run from 1 August 2008; charge (2) admonished and dismissed; charge (3) 12 months imprisonment consecutive to the sentence imposed on charge (1); charge (4) 6 months imprisonment consecutive to the sentence imposed on charge (1); charge (5) 6 months imprisonment consecutive to the sentence imposed on charge (1).

[2] The circumstances of these offences, as they are described by the trial judge in her report to this court, were as follows. The complainer in charge (1) and the appellant were both drug users and, to some extent, drug dealers. The complainer had called at the house of the appellant on the day in question, when there followed an altercation between these persons over a sum of £10. This might have been in relation to a previous supply of drugs by the complainer to the appellant. The Crown relied on the evidence of the complainer that, in the course of this altercation, the appellant took a knife and stabbed him. In support of the complainer's credibility, the Crown relied on a de recenti statement made by him to a Miss Blacklock. The Crown also relied on the evidence of Lorna Martin, the appellant's partner, who gave evidence of a struggle and fight between the appellant and the complainer at the house on the day in question in relation to an argument over money. In her evidence, she said that when the complainer left the house he said "I've been stabbed, I've been stabbed". This information had not been contained in a statement that she had given to the police. She accepted that she had told the truth to the police officers. It was suggested to her that the alleged remarks from the complainer announcing that he had been stabbed had been added effectively to explain how it came about that the appellant, in the remarks made by him in hospital subsequently, knew that the complainer had been stabbed. These remarks made in the hospital were the source of the corroboration on which the Crown relied. Police officers had been called in respect of the incident and Constables Stewart and Peaston had been on their way to the locus when they saw the appellant in Hunterfield Road. He was then arguing with a female outside a chemist shop. They detained and searched the appellant under section 23 of the Misuse of Drugs Act 1971 when they found a wrap of brown powder. The appellant was then taken to the police office and detained under section 14 of the Criminal Procedure (Scotland) Act 1995. He was taken to the custody suite there. The appellant was a diabetic and when his blood sugar level was checked, it was found to be abnormal. Accordingly arrangements were made to convey him to hospital. In the police vehicle on that journey the appellant became aggressive and agitated to such an extent that he bit Constable Peaston. He made threats and was abusive towards both police officers. It was decided to take him back to Dalkeith Police Station, in order to put him into a caged vehicle before taking him to the hospital. During this period the appellant continued shouting and swearing and this behaviour continued in the hospital, where he was handcuffed to a bed. The appellant was aggressive and offensive to staff in the hospital. It was while he was in the hospital that the comments spoken to in evidence by the two police officers were made. These comments were to the effect that the complainer had pulled a knife on the appellant, who had taken it from him after which, they had had "a roll about". He had then asked "how's Glennie?" [the complainer in charge (1)]. "Is he in a bad way? He deserved it, he had it coming, he owed me a tenner. It was over drugs, vallies and that, he pulled the knife on me first. Did he tell you that? I bet he didn't. He couldn't be that bad if he cycled away down the road". Subsequent remarks uttered by the appellant were "I should have finished him off. He's a beast. Feeding his pregnant girlfriend smack". He then said "I said I'll buy some vallies off you and pulled out a tenner; he just took it off me. What was I meant to do, let him get away with it? The bird was chopping the veg and he took the knife off her, he had me in a headlock but I managed to get the knife off him". In evidence, Lorna Martin said that she had not been chopping vegetables and had been upstairs in the house when the altercation began.

The grounds of appeal

[3] The appellant has now appealed against his conviction on the following grounds:

"There has been a miscarriage of justice in respect that the Crown failed in their duty of disclosure to the defence, and in particular failed to disclose to the defence certified copy notebook extract in relation to Crown witness number 9, Constable Colin Peaston.

The Appellant was indicted for trial at Edinburgh High Court on charges of inter alia, attempting to murder Stuart Glen.

An essential part of the case for the Crown against the appellant were (sic) remarks said to have been made by him to two police officers (witnesses numbers 8, Gordon Stewart and 9, Colin Peaston on the indictment respectively) when he was receiving treatment at Edinburgh Royal Infirmary for low blood sugar levels relating to his diabetes. These alleged remarks were made whilst the Appellant was not under caution albeit whilst he was at that time a suspect for a serious assault by stabbing.

The terms of those remarks and the circumstances in which those remarks were made and were recorded [were] the subject of cross examination and criticism by the defence counsel during the trial. Each of the Crown witnesses numbers 8 and 9 gave differing accounts as to how the remarks were made, who was present when they were made and where the remarks were noted down by the officers.

Crown witness number 8, Gordon Stewart, gave evidence that having heard the remarks, he left the cubicle containing the appellant and his colleague and went outside and wrote down the words as best he could recall them, then re-entered the cubicle to let Constable Peaston go outside to note the remarks. Crown witness number 9, Constable Peaston, denied this. He said that he noted the remarks contemporaneously in the presence of his colleague who did

likewise.

In preparing for trial the agents for the Appellant had disclosed to them, inter alia, typewritten statements for each of Crown witnesses numbers 8 and 9. Each statement was almost identical and contained reference in full to two distinct sets of remarks said to have been uttered by the Appellant whilst within the hospital at the relevant time.

Also disclosed to agents for the Appellant was Crown production 10 'certified copy extract notebook'. This related to Crown witness number 8, Gordon Stewart and mirrored the typewritten statement provided by him vis-à-vis the remarks said to have been made by the Appellant. Crown witness number 8 gave parole evidence with reference to his notebook, the notes 'having been made at the time'.

Not disclosed to the defence was a certified copy extract notebook in relation to Crown witness number 9, Colin Peaston. Given the terms of his disclosed police statement which to all intent (sic) was identical to that of his colleague, the defence had no reason to believe or suspect his notebook entry would be any different from that of his colleague.

In his evidence in chief Crown witness number 9 referred to his notebook. The content of it had never been disclosed to the defence and the notebook itself was not a lodged production. During his evidence Crown witness numbers 9, Colin Peaston, indicated that the second 'chapter' of remarks attributed by him to the Appellant had not been noted by him in his notebook at all. He gave evidence that the missing chapter did feature in his subsequent statement given hours later to other officers as 'there were other things I hadn't noted, but happened to remember them later'.

Given the Appellant's position this gave rise to serious issues about both the reliability and credibility of this witness, and indeed his colleague, surrounding both the making and recording of the disputed remarks.

The Crown had a duty to disclose a certified copy extract relating to the notebooks of both Crown witnesses numbers 8 and 9 notwithstanding their content. By not doing so the agents and Counsel for the Appellant were deprived of the opportunity to properly prepare his defence and challenge the disputed remarks.

Had the contents of the second notebook been disclosed by the Crown, agents for the Appellant as well attacking the credibility and reliability of Crown witnesses numbers 8 and 9, could have lodged, pre-trial, a minute challenging the fairness of what took place within Edinburgh Royal Infirmary and seeking to have the disputed remarks excluded from the jury's consideration.

It is respectfully submitted that the non-disclosure by the Crown of the contents of Police Constable Colin Peaston's notebook in the circumstances of the case against Gavin Hardy Clark amounted to a miscarriage of justice; that the verdict of the trial court should be set aside and that the conviction following thereon should be quashed in relation to charge 1 on the indictment".

[4] The trial judge has commented upon the foregoing grounds of appeal in this way. She states that she had no knowledge of what information was disclosed to the defence. It was correct to say that the second officer had not noted all the remarks in his notebook. The first officer had been cross-examined about the terms of the alleged statement, when and how they were recorded and whether the officers had checked each other's notebooks. He had said that no questions had been asked of the accused and that, as soon as he had stopped speaking the words concerned, "we wrote them down. I believe we went outside the curtain and wrote it down". This officer had not recalled looking at his colleague's notebook. He had tried to note word for word, but there was always the potential for error and the notebook might not have been 100% accurate. The second officer had said that he had made entries in his notebook as he was sitting at the bedside. It had been put to him in cross-examination that he had gone away somewhere else to do this, but he had denied that. He had been unable to recollect if his colleague had noted the comments made at the same time. As to the discrepancy between his notebook, which did not contain all the remarks, and his statement which did, he had said "I recalled when giving my statement that there were other matters I hadn't noted at the time". Asked if he had had the opportunity to cross-reference matters with Constable Stewart, he had said "It would have been discussed when I made the statement". Asked if he had seen what Stewart had written, he said "I probably did - that would have been a factor". However he did not agree that he had added in bits after seeing what Stewart had written in his statement, saying "No, I'd recollect additional things when making my statement". It would thus be seen that the officers were indeed questioned in a way which sought to suggest unreliability of their accounts. Apart from addressing issues relating to the credibility of the complainer, the speech made on behalf of the appellant had strongly suggested that the hospital comment attributed to the appellant should not be accepted by the jury and that the evidence of the officers relating to those matters was unreliable. The trial judge observes that she had referred to this aspect of the case in her charge to the jury, at page 25 of the transcript, where she reminded the jury of the defence submission that the police evidence about the comments made in hospital was unreliable. She observes that she had also told the jury that they required to ascertain, first of all, whether those comments had been made at all, as appeared from page 27 of the transcript.

Submissions for the appellant

[5] Counsel for the appellant made clear that only the conviction on charge (1) in the indictment was in issue. There was no controversy regarding the facts as they were narrated in the report of the trial judge. What was controversial in the case was the evidence concerning the remarks attributed to the appellant when he was in hospital after the incident. The importance of that evidence to the case was clear. At page 24 of the transcript of the charge the trial judge had made clear the basis of the Crown case; it was evident from that that the remarks attributed to the appellant in the hospital were an essential part of the Crown case. The trial judge at pages 25 to 26 had made clear that the remarks were the subject of controversy. At page 27 the trial judge had put before the jury the questions which they had to address in connection with those matters.

[6] The factual issue in the case was whether the stabbing had or had not been accidental. If it had not been accidental, then plainly there was an issue as to whether the necessary mens rea for attempted murder had been established. The complainer had given evidence that he had been stabbed by the appellant. Miss Lorna Martin had given evidence concerning the general background to the matter and the altercation between the complainer and the appellant. In the light of the evidence led by the Crown, there had been a case to answer, but the statements attributed to the appellant were crucial to the establishment by the Crown of an assault by the appellant upon the complainer having the character of attempted murder. Accordingly the primary motion made on behalf of the appellant was that the conviction on charge (1) should be quashed.

[7] Perusal of the transcripts of the speeches made to the jury showed that the trial Advocate depute had relied upon the remarks attributed to the appellant in hospital. Reference was made to pages 11, 22 and 23 of the transcript of that speech. In the speech on behalf of the appellant, in the transcript at page 8, it was made clear that there was a dispute concerning the reliability of the evidence concerned.

[8] Counsel for the appellant went on to examine the transcript of the evidence of Police Constable Gordon Stewart between pages 54 and 102 of the transcript. Turning to the evidence of Police Constable Colin Peaston, reliance was placed upon what occurred during his cross-examination from page 152 onwards in the transcript. Cross-examination concerning the events in the hospital was recorded between pages 161 and 170. Having examined the evidence of this witness in detail and, in particular, his cross-examination, counsel for the appellant observed that, so far as the events in hospital were concerned, the statements given by the two police officers were indistinguishable. He went on to submit that, had the notebook of Constable Peaston been available before it was, it might have been possible to object to the admission of the police evidence upon the basis that it would be unfair to admit it. In addition to that, had the defence been given access to the notebook of this constable prior to the time at which it became available, it might have been possible to instruct a relevant expert who could have analysed the contents thereof.

[9] Counsel for the appellant submitted that, in consequence of what had happened regarding the availability of the notebook of Police Constable Peaston, the trial had been rendered unfair. In support of that submission, counsel relied upon McInnes v HMA 2010 S.C.C.R.286. He referred particularly to the observations of Lord Hope of Craighead in paragraphs 19 to 24 and of Lord Rodger of Earlsferry at paragraph 30. It was evident from that case that the question that had to be asked was whether, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict, had the duty of disclosure been performed fully and timeously. When questioned by the court concerning that aspect of his submissions, counsel said that, while it was acknowledged that Constable Peaston's notebook had been produced during the course of the trial, nevertheless, the point could be made that the whole tactics adopted by the defence might have been different if that notebook had been disclosed timeously at an earlier stage. Counsel also relied upon McClymont v HMA 2006 S.C.C.R.348, particularly paragraphs 10 and 12. In all the circumstances, the appeal should be allowed and the appellant's conviction on charge (1) quashed. Alternatively, the conviction should be replaced with a conviction for assault only.

Submissions of the Crown

[10] The Advocate depute observed that, if the appeal possessed any substance, it lay in relation to the matter of the timing of the disclosure of the police notebook, since, of course, there had been disclosure of it during the course of the trial. Prior to the trial all police statements had been disclosed to the defence as well as other material. The police statements which had been disclosed prior to the trial showed that certain statements had been made by the appellant in hospital following the incident and also the circumstances in which those statements were made. The disclosed material would also have demonstrated that the statements were not made by the appellant in response to any questioning, but had simply been made to the police officers who were present at the time, essentially for the purpose of looking after the appellant. It was evident that the appellant's remarks were quite spontaneous.

[11] In the course of his evidence, Constable Peaston had sought to look at his notebook, hardly a surprising development. That was the first that the trial Advocate depute had known about the notebook. One feature of the situation was that, at that stage, an opportunity had arisen for the defence to cross-examine that officer regarding his statement. Defence counsel at the trial had been asked if he wished an adjournment to consider the notebook more fully, but he had declined that. What the notebook showed was that something said to have been uttered by the appellant had not been written down. Full use of the opportunity for cross-examination had been taken to go over the circumstances. In certain respects the appellant's utterances then were capable of assisting his position. Accordingly it was comprehensible that no adjournment of the trial had been sought. Those representing the appellant at the trial had gone on to challenge the credibility and reliability of the police witnesses to a considerable extent. If more had been desired, the adjournment of the trial could have been sought, or even the desertion of the trial. Counsel for the appellant at the trial had taken the view that it was proper for him to proceed.

[12] As regards the fairness of the proceedings, the vast majority of the material available concerning the appellant's admissions in hospital had been available before the trial. There had been no question of any unfair police questioning. If there had been any problem about the condition of the appellant at the time, an attempt might have been made to have the evidence excluded, upon the basis that he was delirious or otherwise ill. All relevant matters relating to the reliability and credibility of the police officers had been explored in cross-examination before the jury. Looking at the whole circumstances, the test in McInnes v HMA could not begin to be satisfied in the circumstances of this case. No convincing suggestions had been made as to what difference it would have made had Constable Peaston's notebook been disclosed at an earlier stage. In all the circumstances there was no miscarriage of justice. The appeal should be refused.

The decision

[13] Although the ground of appeal tabled by the appellant refers to a failure on the part of the Crown to disclose a certified copy notebook extract in relation to Crown witness no.9, Police Constable Colin Peaston, it is evident from the remaining parts of the ground of appeal that the notebook of that witness was in fact referred to during the course of the evidence in chief of the witness, as appears from what is recorded at pages 138 and following of the transcript of his evidence. The court was asked by the trial Advocate depute if the witness could refer to his notebook and consent to that course was given. At that stage no objection of any kind was stated by the solicitor advocate appearing for the appellant. Thereafter, in due course, from page 152 of the transcript onwards, the constable was cross-examined extensively. Among the topics of cross-examination were the statements attributed to the appellant when he was in hospital. Numerous references were made to the notebook and to the statement compiled by the witness, as well as the evidence that had been given by Police Constable Gordon Stewart. Once again, during the course of cross-examination no attempt was made to suggest to the court that what had happened was in any way unfair. Had it been the case that the solicitor for the appellant considered that he had been placed in a disadvantageous position by the previous non-disclosure of the notebook, that matter could have been raised, but was not. In particular, had the appellant's solicitor desired to have an adjournment for the purpose of considering the implications of Police Constable Peaston's notebook and its contents, that could have been sought, but was not. Nevertheless, it was submitted on behalf of the appellant before us that had there been prior disclosure of the notebook it might have been possible to object to the police evidence in regard to the statements attributed to the appellant in hospital. We have insuperable difficulty in seeing how the police evidence regarding these statements could have been successfully objected to upon the basis suggested. It was quite evident from the examination and cross-examination of both of the relevant police witnesses that there were certain inconsistencies between what they said in their evidence regarding the making of notes and, indeed, what occurred at the time of the events in hospital. However, it is a not infrequent occurrence during the course of criminal trials that different witnesses give different accounts of the same events. In our opinion, that circumstance could hardly be erected into an objection to the hearing of their evidence. As happened in this case, where different versions of the same events are proffered in the course of evidence the opportunity is created to those acting for an accused person to use those circumstances for the purpose of suggesting that the evidence concerned, or, in any event, some of it should be treated as incredible or unreliable. That was the course that was followed in this trial, as is evident from the submissions that were made to the jury and from what the trial judge said to the jury in the course of her charge regarding the evidence concerned. In these circumstances, we reject the suggestion that, had the contents of Constable Peaston's notebook been made available to those acting for the accused at an earlier stage, they would have had the opportunity of objecting to the admission of the evidence concerned.

[14] Counsel for the appellant went on to suggest that, if the contents of Constable Peaston's notebook had been disclosed at an earlier stage prior to the trial, it might have been possible to instruct a relevant expert to have what had been recorded analysed. Counsel for the appellant confined himself to making that point in very general terms. He did not indicate what the purpose of such an analysis would have been or, had it been carried out, what the results of it might have been. In the absence of such material, what he said regarding this matter amounts to no more than conjecture.

[15] It was represented to us that the appropriate approach to matters of failure to disclose is set forth in McInnes v HMA. Looking at what was said by Lord Hope of Craighead in paragraphs 20 and 24 of his Opinion in that case, the test which has to be applied is whether, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had there not been a failure in their duty to disclose. Following that approach we are quite unable to affirm that, if the contents of Constable Peaston's notebook had been disclosed at an earlier stage prior to the trial that would have made any difference whatever to the conduct of the trial or the likely verdict of the jury on charge (1).

[16] In all these circumstances we have not been persuaded that what occurred in this case amounted to a miscarriage of justice. The appeal is refused.