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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Murray v. Procurator Fiscal, Kilmarnock [2002] ScotHC 341 (10 January 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/341.html Cite as: [2002] ScotHC 341

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1. In this bill of suspension the complainer is William Burns Murray who, on 11 January 2000 at Kilmarnock Sheriff Court, was convicted of assault and admonished. The charge against him had originally narrated that on 30 April 1999 in John Knox Street, Galston, he assaulted Dawn Taylor, aged thirteen years, and seized and dragged her by the hair. The complainer pled not guilty and went to trial. He was convicted of assaulting Dawn Taylor by seizing her by the hair and pushing her. Three girls had been in the street outside the complainer's house and one of the girls had thrown a stone at the complainer's front window, damaging it. The three girls had then run away but the complainer had pursued them and had allegedly assaulted one of the girls, Dawn Taylor. Two of the girls, Dawn Taylor and her cousin Michelle Taylor, gave evidence for the Crown and the third girl, Lindsay McSherry, gave evidence for the defence.
2. In the bill the complainer makes three criticisms of the conduct of the sheriff in the course of the trial, and alleges that in the circumstances justice was not seen to be done and that the pretended conviction and sentence should be quashed. The first criticism is set out in paragraph 2 of the bill. It is stated that when one of the defence witnesses, Police Sergeant Lacey, was giving evidence the complainer's solicitor, Mr Crate, asked him why Dawn Taylor and her two friends had been re-interviewed on several occasions by the police. This question was objected to by the procurator fiscal depute who asked the complainer's solicitor why he required to ask such a question. The solicitor replied that the witness would give information about a number of substantially inconsistent statements which the three witnesses had previously made. It is alleged that at this point the sheriff angrily made an outburst in the following terms:

"Mr Crate, how much longer is this going to take? I have a civil court tomorrow with forty cases to deal with and I have to read them all today before I can go home. I don't want to be here at six or seven o'clock at night. All this nonsense with temporary sheriffs. Things are going to have to change around this place."

The complainer's solicitor, who was perturbed at having heard such an outburst from the sheriff, did not continue with this line of examination. In paragraph 5 of the bill it is stated that the sheriff treated a defence witness, Dino Castelli, with rudeness and contempt and that he made it plain from the outset that he regarded the evidence of that witness, which related to street lighting, as utterly irrelevant. In paragraph 6 it is alleged that during the evidence of the complainer the sheriff continually looked up at the wall in the court which had a clock on it, making it obvious to those present that he was anxious to conclude the case as quickly as possible. It is stated that a reasonable observer would have concluded that the sheriff was prejudiced against the complainer, and that he had made up his mind on the case before all the evidence had been led.

3. We are informed by the sheriff in his report that, so far as the first criticism is concerned, Sergeant Lacey stated that he had interviewed only one of the three girls, namely Lindsay McSherry, who was a defence witness, and that a police constable had interviewed the other two girls. He has no note of any objection being taken to the line of evidence and was satisfied that no such objection had been proceeded with. The sheriff tells us that, as the trial took place in January 2000, he cannot now recall what remarks he may have made casually in the course of the proceedings. He also points out that he found as a fact that Dawn and Michelle Taylor had initially told lies about the stone-throwing incident, and their different accounts were before the court. He tells us that he was quite sympathetic towards the complainer as he had been the victim of vandalism and that was why he had merely admonished him. So far as the criticism of the sheriff's attitude towards the defence witness, Dino Castelli, is concerned, the sheriff gives a detailed explanation as to why he considered that the evidence of that witness was irrelevant. In relation to the third criticism, the sheriff informs us that when he was sitting in court he was facing the wall at the back of the court which had a clock on it which was almost at eye level. He states that he had not been anxious to rise. The Crown has not lodged answers to the bill.
4. Counsel for the complainer submitted that the case had been finely balanced on the evidence, and the credibility and reliability of the evidence given by Dawn Taylor and Michelle Taylor was clearly in issue. Another issue was whether the complainer, who was a first offender and had been a police officer for thirty-two years, was credible and had had the necessary mens rea. The complainer's solicitor was endeavouring to lead evidence that the girls had lied at the outset, been re-interviewed by the police on several occasions and given a number of different versions of the incident, including an allegation that it was two boys who had been throwing stones at the house and different accounts of what the complainer was said to have done. Counsel stated that evidence would have been led of the different accounts of the incident given by the girls, who had admitted in evidence that they had initially lied to the police. Counsel stated that he was founding principally on the first criticism which had been made of the sheriff's conduct, and that he could not hope to succeed on the basis of the second and third criticisms alone, although they demonstrated the attitude of the sheriff at other stages of the proceedings. With regard to the first criticism, while the sheriff states that he had no note of an objection being made by the procurator fiscal depute, it was understood that the depute had confirmed that she did take an objection and it was noted by the complainer's solicitor. The remarks which were allegedly made by the sheriff were noted by the complainer at the time and confirmed by Mr Crate, and the sheriff does not deny that he said what he is alleged to have said. The sheriff's observations were such that the complainer's solicitor understandably gave up a competent and relevant line of questioning as the sheriff was making it clear that that line would not be allowed or, if allowed, would not find favour. The observations made by the sheriff were such as to raise in the mind of a reasonable observer a suspicion that the complainer's case might not be properly considered by the sheriff so that he would not receive a fair trial (Hogg v Normand 1992 S.C.C.R. 21; Harrower v Scott 1997 S.C.C.R. 83). The evidence which the complainer's solicitor had been endeavouring to elicit had been very relevant to the credibility of the evidence given by the complainer who said that he had only taken hold of Dawn Taylor's collar. A reasonable observer would have had a suspicion that the sheriff had already made up his mind on the issues which he had to determine in a manner adverse to the complainer. In the circumstances justice had not been seen to be done and there had been a miscarriage of justice.
5. In reply, the advocate depute informed us that the procurator fiscal depute who had conducted the prosecution has stated that she had a vague recollection of taking objection to a line of questioning when Sergeant Lacey was giving evidence. Sergeant Lacey had only interviewed Lindsay McSherry and not the other two girls. However, the procurator fiscal depute had also stated that she believed that the sheriff's attitude had caused Mr Crate not to call a number of other police officers whose names were on the defence list of witnesses. She could not now recall any particular comments which had been made by the sheriff. It was accepted that it would be open to the court in this case to hold that the sheriff had made the remarks attributed to him, or had used similar words. However, it was submitted that while the sheriff's observations indicated impatience on his part, they had not constituted unfair conduct. In the circumstances of the present case the complainer had failed to establish that justice had not been seen to be done, and there had not been a miscarriage of justice.
6. The first question for our determination is whether we can proceed on the basis that the sheriff made the observations which have been attributed to him in paragraph 2 of the bill. We were informed that the complainer, who was a police officer for thirty-two years, had noted what the sheriff said at the time, that his note was confirmed by Mr Crate and that the procurator fiscal depute believes that the attitude of the sheriff did cause Mr Crate not to call a number of police officers who were on the defence list of witnesses. The sheriff tells us that he cannot now recall what was said casually in the course of the proceedings but he has not denied that the statements which have been attributed to him were made. In the foregoing circumstances we have reached the conclusion that we can hold it established that the sheriff did make the remarks attributed to him, or words to a very similar effect. That being so, we require to consider whether this was a case in which, as the complainer alleges, justice was not seen to be done and there was a miscarriage of justice. In that connection it was common ground that a matter of this kind has to be approached objectively and that the court has to form a judgment as to whether or not the circumstances complained of are such as to create in the mind of a reasonable observer a suspicion that justice is not impartial. Actual unfairness does not require to be shown and a "suspicion" in the mind of a reasonable observer is enough to render the conviction unsafe (Lorimar v Normand 1997 S.C.C.R. 582 at page 584D). In the present case the observations made by the sheriff must, of course, be considered in the context of his conduct of the trial as a whole. The credibility and reliability of the evidence given by the girls on the one hand, and the evidence of the complainer on the other hand, were in issue and the complainer's solicitor was apparently attempting to lead evidence of a number of contradictory statements which had been made by the girls. It is alleged that, because of the observations made by the sheriff and the way in which they were made, Mr Crate did not pursue that line of evidence and, as we have said, we were informed by the Crown that the procurator fiscal depute believed that it was the attitude of the sheriff which caused Mr Crate not to call other police officers who were on the defence list of witnesses. It was said by the Crown that the remarks made by the sheriff simply displayed impatience but it seems to us that they went beyond mere impatience. In our opinion, the intemperate nature of the language used by the sheriff at that stage of the proceedings was such as to create in the mind of a reasonable observer at the trial at least a suspicion that the sheriff had made up his mind on the issues which he had to determine before all the evidence had been led, and that he was thus being unfair to the complainer. While it is essentially a question of degree depending on the particular circumstances of the case, we have reached the conclusion that in this case justice was not seen to be done and that there was a miscarriage of justice. We will pass the bill and quash the conviction and sentence.