APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Nimmo Smith Lady Paton Lord Mackay of Drumadoon	[2009] HCJAC 72 Appeal No: XC171/07 OPINION OF THE COURT delivered by LORD NIMMO SMITH in NOTE OF APPEAL AGAINST CONVICTION by DEREK WHITE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Act: Forbes; McClure Collins, Edinburgh

Alt: Bell, QC, AD; Crown Agent

18 August 2009

Introduction

[1] On 6 February 2006 the appellant was convicted after trial before a sheriff and jury at Falkirk Sheriff Court of a charge in the following terms:

"[O]n 25 April 2005 at High Street, Bonnybridge, you ... did assault Steven Thomas Martin ... and did punch and kick him repeatedly on the head and body to his severe injury [and] permanent disfigurement".

A co-accused, Gary Lyon, appeared on the same charge. The jury found the charge not proven against him.

[2] After an adjournment to enable a social enquiry report to be prepared, on 2 March 2006 the appellant was sentenced to imprisonment for three years from that date. He now appeals against his conviction only.

[3] The original Note of Appeal contained two grounds ("the original grounds"), the terms of which we discuss below. Leave to appeal against conviction was granted on 4 June 2007, and the appellant was admitted to bail on 25 June 2007. In the course of subsequent procedure, on 5 December 2008 the Court allowed a proposed additional ground, relating to fresh evidence, to be received; and on 30 January 2009, in respect that the Crown conceded that the reasonable explanation test had been met, allowed this ground ("the additional ground") to be argued along with the original grounds.

The circumstances of the offence

[4] In order to discuss both the original grounds and the additional ground, it is necessary to set out in the first place the evidence led at the trial.

[5] Our first task is to give a brief description of the locus. We are surprised to learn that no map or plan was lodged by either the Crown or the defence as a production at the trial. The jury (except perhaps any of them who happened to have sufficient local knowledge) must have been at a considerable disadvantage in understanding the relationship of, and the distance between, various places mentioned in the course of evidence relating to a "moving assault" (as it was described to us). Even at the hearing of the appeal it was principally as a result of our own efforts, assisted to some extent by a plan produced by the Crown and a set of photographs produced by the defence, that we arrived at an understanding of these matters. Eventually, a copy of the relevant part of the Ordnance Survey map on a scale of 1:5000 was produced. There is no difficulty in producing such a document - this one was produced under licence by Central Scotland Police - and in our view it should be standard practice to lodge a similar map or plan in any case where it might assist the court, not least the jury, to understand the evidence.

[6] High Street, Bonnybridge runs approximately east and west. At the east end there is a mini-roundabout at the junction with Main Street and Bridge Street, known locally as Bonnybridge Toll. The evidence at the trial related to places on or near the north side of High Street in the stretch between the east end and the junction with Drove Loan, which joins it from the north, and where there is another mini-roundabout. The distance between the two mini-roundabouts is a little over 500 metres. Proceeding along the north side from the mini roundabout at the east end, there is a pedestrian crossing and near it the premises of an estate agent. To the west of these premises are other commercial premises, and the licensed premises of the Bridge Inn. To the west of these commercial premises is a bridge over the Bonny Burn. There are metal railings alongside the pavement across the bridge. On the other side of the pavement, on the bridge, is a taxi rank. To the west of the bridge Lade Road enters from the north. There are then further commercial premises and to the west of them the Royal Hotel, where there is a licensed public bar. To the west of the Royal Hotel is a small park, then Wellpark Terrace, which joins High Street from the north. Immediately to the west of the junction are more licensed premises named the Cornhill Inn, but known locally as Hardie's Bar. To the west of these premises are various buildings, which need not be further mentioned, the junction with Dunure Street, which joins High Street from the north, and finally the junction with Drove Loan. A short distance up Drove Loan, to the north, there is a junction with Larbert Road, where there is a further mini-roundabout. The distance from the mini-roundabout at the east end of High Street to the Bridge Inn is about 100 metres; from there to the taxi rank is about 100 metres; from there to the Royal Hotel is about 100 metres; from there to the junction with Wellpark Terrace is about 50 metres; from there to the junction with Drove Loan is about 250 metres; and from that junction to the junction of Drove Loan and Larbert Road is about 50 metres.

[7] On Sunday, 24 April 2005 there was an Old Firm match in Glasgow. Kick-off was at 12.30. The appellant, and no doubt many others, watched the match on screens in licensed premises in Bonnybridge. The result of the match was that Rangers beat Celtic 2-1. This was a matter of celebration for Rangers fans, of whom the appellant was one. During the ensuing hours he celebrated by drinking in various licensed premises, and on his own account he became well and truly intoxicated. The last premises he visited were the Bridge Inn. Either because he was intoxicated or because it was closing time he was refused a drink. Also in the Bridge Inn were the complainer and Gary Lyon.

[8] The complainer gave evidence that he wore his hair in a distinctive ponytail, and had done so for several years. He had been drinking that evening with a friend in the Royal Hotel. After they had parted company he was walking home when he decided to have a pint in the Bridge Inn. While he was there he spoke to the appellant and to Gary Lyon. The appellant, having been refused a drink in the Bridge Inn, asked the complainer if he was going for a drink at the Social Club. The complainer declined this invitation. He, the appellant, and Gary Lyon all left the Bridge Inn at the same time. The complainer intended to cross High Street. He turned to speak to the others before parting from them. Gary Lyon then said "No, we're fighting" (or words to that effect), and punched him twice in the face. This knocked his mobile phone out of his hand. At that point the appellant came round his right shoulder and an altercation took place between them. The complainer said something to the effect that he would have a word with him later. The appellant then said "You'll no fucking see me later, you'll fucking see me now". The two of them then just started laying into him with punches and kicks. He said that he thought he ended up in a shop doorway a couple of doors down from the Bridge Inn, which belonged to the estate agents. He ended up on his knees at one point.

[9] The incident then died down and he managed to get back up on his feet. He was trying to protect himself. He was unable to pass the appellant and Gary Lyon in the direction of his home, so he decided to go back up High Street. He attempted to return to the Bridge Inn but it was shut. He then went towards the Royal Hotel. The appellant and Gary Lyon followed him. They were laughing and mocking him. He went round the back of the Royal Hotel to houses in Wellpark Terrace a short distance from High Street. He hid below stairs leading to upper flats there. He was found there by the appellant and Gary Lyon. He decided to step out, and at that point one of them hit him on the head, following which he was struck a number of blows by both of them. He said that it was all just a blur after that and the next thing he remembered was waking up in hospital on the Monday morning. If he was found injured at the taxi rank, it must have been because he had managed to get away and was trying to escape from them.

[10] James Young worked as a part-time barman in the Bridge Inn. He was working there that night. He remembered that the complainer, the appellant and Gary Lyon were present in the bar that night. All three left together. The complainer went towards the left, then ten or fifteen minutes later he returned and went in the other direction, towards the Royal Hotel.

[11] George Neilson was the licensee of the Royal Hotel and had been working there on the night in question. His evidence was that about closing time the appellant and Gary Lyon came to the Royal Hotel but were refused entry since the bar was closed. After clearing up he left the premises. He saw the appellant and Gary Lyon down at the taxi rank with an old couple who had been drinking at the Royal Hotel. There was also a smaller man with his hair in a ponytail. As he drove past they were arguing and Gary Lyon pushed the smaller man so that he went down on the ground. The witness drove past them at that point. He continued to the mini-roundabout at the east end of the High Street, then drove back up again. He drove slowly because he was watching what was happening. He saw the appellant kicking the smaller man about the face, the head and upper body. He saw half a dozen hard kicks. Gary Lyon was standing by at that point. He himself did not intervene because he did not want to be involved. The older couple seemed to be trying to stop what was happening. The smaller man looked as if he was just lying, "out cold", while he was being kicked and stamped upon.

[12] Elizabeth Buchanan had been out that night at the Social Club. She was driving down the High Street, giving a friend a lift home, when she saw three males walking down the road. Originally she thought they were drunk, but two of them were pushing the third one from side to side. They pushed him in front of her car. She stopped for a time because of this. One of the men stepped to the side. The other two were still in front of the car, and they "swerved away". As she tried to move off, one of the men was thrown in front of the car. It was as if the other two wanted her to hit him with her car. The one who appeared to be target of the other two was small with a ponytail. Of the other two, one was taller and one was smaller. She identified the appellant in court as the smaller of the two: "I'd say 95% sure". At first she thought they were larking about, but when they were nearer to the car she realised that they were not. The incident happened when she had passed the Bridge Inn, and was near Bonnybridge Toll.

[13] Police Constable John Grant gave evidence that he responded at about 00.45 hours to a report that a male had been assaulted in the area of the High Street. He went to the area of the taxi rank, where he found the complainer, who had a ponytail, kneeling on the pavement with serious head injuries. A woman who was standing nearby was trying to assist him. Gary Lyon was also standing nearby.

[14] Police Constable Liam Harman gave evidence that on Saturday, 21 May 2005 he and a colleague attended at the appellant's home address where they detained him in terms of section 14 of the Criminal Procedure (Scotland) Act 1995. He was taken to Falkirk Police Office. There he was interviewed under caution. He gave an account of visiting various licensed premises. He said that he went into the Bridge Inn to get a drink but the bar was closed. He left at the same time as Gary Lyon. When he left the Bridge Inn he walked up the way, not down to the zebra crossing. He tried to get a taxi, but there was none, so he started walking home. Gary Lyon walked with him as far as Hardie's Bar or just past it. Gary Lyon heard a bit of a commotion and headed back towards the Toll. He himself heard "a wee bit screaming", which sounded female. He did not remember standing next to a male with long hair at the bar in the Bridge Inn. He did not have an altercation with a male outside the Bridge Inn. He saw no fighting or arguing outside. He was not involved in a fight and did not hear anyone fighting. He did not walk onto the road and cause a car to stop. He walked past the Royal Hotel after leaving the Bridge Inn. He was not involved in any kind of fight or disturbance outside the Bridge Inn or the Royal Hotel. Evidence of this mixed statement was led in the course of the Crown case.

The original grounds of appeal

The first ground

[15] The first of the original grounds of appeal is that the sheriff erred in repelling a submission of no case to answer made on behalf of the appellant in terms of section 97 of the 1995 Act. The submission was to the effect that there was insufficient evidence to corroborate the evidence of the complainer. The Crown led evidence from the complainer who identified the appellant as his assailant and described the location and method of the assault. For corroboration the Crown sought to rely on the evidence of two further witnesses, Mrs Buchanan and Mr Neilson. But the detail given in the evidence of these witnesses was such that there was a lack of conjunction with the testimony of the complainer sufficient to provide the necessary corroboration. In particular the evidence of Mrs Buchanan bore no relation to the evidence given by the complainer, and the evidence by Mr Neilson related to a locus not spoken to by the complainer. This submission is repeated in the ground of appeal.

The sheriff concluded:

"In my view, taking the evidence of the complainer in its entirety together with that of .... Mr Grant on his discovery of the complainer and taking account [of] the relatively short timescale and the close geographical proximity of all of the areas mentioned by the witnesses including the Bridge Inn, the Royal Hotel, Wellpark Terrace, the taxi rank in High Street, Bonnybridge and the High Street itself there was evidence available to the jury to conclude that this was part of one ongoing incident. If that position was accepted, then the evidence of Mr Neilson in relation to the assault which he saw was sufficient evidence both as to the corroboration of the appellant as being responsible for the assault and of the assault itself."

[16] In our opinion the sheriff was fully entitled to reach this view. The complainer himself described being assaulted outside the Bridge Inn and further to the east at the east end of the High Street. He then described being pursued along the High Street and seeking refuge in Wellpark Terrace, where he was found and further assaulted. While his recollection stopped at that point, it is clear that he was further assaulted at the taxi rank; this was witnessed by Mr Neilson, and that is approximately where PC Grant found him in an injured state. There were thus three phases of what it was open to the jury to regard as a sustained assault. The complainer identified the appellant as one of his assailants.

[17] Counsel for the appellant accepted that it was not necessary for the Crown to provide corroboration of each and every part of the assault, if it was indeed properly to be regarded as a sustained one in three phases. The appellant was seen by Mr Young to leave the Bridge Inn at the same time as the appellant and Gary Lyon. His description of the complainer's movements thereafter is consistent with the complainer's account of having been assaulted outside the Bridge Inn and then further to the east of it, before being pursued along the High Street in the other direction. While Mrs Buchanan's account differs from that of the complainer - perhaps because he remembered the more serious part of the first phase of the assault, which she did not witness - she gave evidence of seeing two men, one of whom she identified with 95% confidence as the appellant, targeting another man whose description answered that of the complainer. The place where she saw this happening is consistent with the complainer's account of the first phase. At a later stage, that is to say in the third phase, Mr Neilson saw the appellant kicking and stamping on a man who answered the description of the complainer. It appears to us therefore that there was ample corroboration of the complainer's evidence that the appellant was one of his two assailants. This analysis of the evidence is also enough to dispose of the submission that there was a lack of conjunction with the testimony of the complainer. Nothing more need be said about the evidence of Mrs Buchanan. It does not avail the appellant that Mr Neilson gave evidence about a locus not spoken to by the complainer since, as we have said, the complainer's evidence was that his recollection ceased after the second phase, and the evidence of Mr Neilson and PC Grant taken together was sufficient to establish that the assault continued into a third phase at or near the taxi rank.

[18] In our judgment, this ground of appeal fails.

The second ground

[19] The second original ground of appeal alleges that the sheriff misdirected the jury. It is said that he erred in failing to direct them that before they could rely on the evidence of Mr Neilson to find corroboration for the evidence of the complainer, they would first have to be satisfied that the incident spoken to by Mr Neilson was in fact part of the assault spoken to by the complainer and libelled in the charge.

[20] The sheriff gave the jury unexceptionable directions about the charge which was libelled and about the requirement for corroboration of the complainer's evidence. At pages 14-15 of his charge he said:

"In this case it is the Crown position [that] each of the things which happened to Mr Martin as described by him and Mr Neilson are part of one ongoing charge [sic], all occurring generally in High Street in Bonnybridge. On this basis you are invited by the prosecutor to find corroboration to the charge from the accounts of an attack on Mr Martin given by him and Mr Neilson. The defence generally challenge that position and they invite you [to hesitate] in accepting the evidence of these witnesses and not to accept them as credible or reliable. But they also invite you to conclude that the events described by these witnesses are not one continuing act. But following from that they point to the lack of specific corroboration in respect of each of what they suggest to you are separate incidents."

At page 29 he said:

"The essence of the Crown case is this. That the accused were together involved in a concerted attack on Mr Martin which began close to the Bridge Inn, continued at houses in Wellpark Terrace beyond the Royal Hotel and finished back at the taxi rank. The Crown invite you to convict the accused on the basis of their concerted involvement on the charges that stand before you. The defence in each case is that of alibi, but the defence also suggest in considering the Crown case that the involvement of each accused in any attack on Mr Martin is not established by corroborated evidence."

[21] It is clear from these passages, read in the context of the charge as a whole, that the sheriff was directing the jury that they could not convict either the appellant or Gary Lyon of assault unless they accepted, at the least, the evidence of the complainer and Mr Neilson, and in addition were satisfied, viewing the evidence as a whole, that the complainer had been subjected to one sustained assault (described in the sheriff's charge as "one ongoing charge" and "one continuing act"). In our opinion these directions were entirely adequate to make clear to the jury what evidence they would have to accept, and what they would have to hold proved, before they could convict the appellant.

[22] In our judgment, this ground of appeal also fails.

The additional ground

The affidavit

[23] The additional ground of appeal relates to fresh evidence from a taxi driver, Andrew Duncan, who swore an affidavit dated 18 March 2008. The gist of it is that on the night in question he was driving his taxi down Drove Loan towards the High Street when he saw the appellant, obviously the worse for drink, at the junction between Drove Loan and Larbert Road. Mr Duncan drove on past the Royal Hotel. When he reached the taxi rank he saw the complainer lying with his back to the railings. A boy was stamping on the complainer's head, kicking out sideways and stamping into his face, more than once. The boy was Colin Wallace, whom he recognised. He drove on down the road, and did no more about the incident than to sound his horn. He never really thought any more about the matter until months later when he was driving the appellant in his taxi. The appellant told him that he had been in jail, after being convicted for the assault on the complainer. He went on:

"I told him that I knew it wasn't him because he was nowhere near the incident as I had witnessed the incident and I had seen him some distance away. ... I am absolutely positive that it would have been impossible for Mr White to have been conducting that assault. He was a good distance away from it and I know for certain who it was that was kicking Mr Martin's head that night."

On the strength of this affidavit, the additional ground was allowed to be argued, and we heard fresh evidence in the course of the appeal. The witnesses were Andrew Duncan, Colin Wallace and the appellant.

The evidence

[24] Andrew Duncan gave a more detailed account of that night's events than appeared in his affidavit. He said that he knew the appellant very well as a customer, having driven him many times in his taxi. He actually saw what happened that night. He knew "the boy who was getting the doing", as one of his customers. A good while after the incident he picked up the appellant in his taxi. He said he had not seen him for a while. The appellant said he had been in jail. He asked him why he was in the jail and he said that it was something to do with the fight down at the Toll.

The witness told the appellant that he saw the fight and it wasn't him.

[25] Mr Duncan said that on the night in question he was driving into Bonnybridge. His controller told him to go to the Royal Hotel for a hire. The time was about midnight, when the Royal Hotel closed. His route took him down Drove Loan. At the junction with Larbert Road he saw the appellant, whom he knew as "Whitey", at the southeast corner. He was staggering all over the place. He took it that the appellant was heading towards his home. When he went to the Royal Hotel, there were four or five people outside, but none came forward. His controller told him he was clear to pick up a fare. He drove towards the taxi rank. There was "a boy stamping on a fella's heid". The man was being assaulted at a point midway along the taxi rank. He was up against the railing at the side of the bridge. He was sure that it was the complainer who "got the doing", and Colin Wallace who did it. He recognised the complainer by his ponytail. He knew Colin Wallace as an occasional customer. He was doing the stamping. He stamped on the complainer two or three times. The witness blasted his horn when he saw this. He saw nobody else there. The only people he had seen were the ones at the Royal Hotel. He just drove on. He probably went for a hire, picking up a customer from the kebab shop round the corner in Main Street. About five or ten minutes later he returned and drove along High Street. When he was going back up the High Street he saw two or three folk round the complainer on the bridge. He was still in the same position. He thought they were trying to help him. There were a middle-aged woman and a couple of young ones. They were all round about him, trying to give him a hand. He himself was heading for a hire in Banknock. His controller went off duty at 1.00am. He was passing along the High Street to collect her and take her home. He saw an ambulance there. He did not see any police. He knew Gary Lyon. He did not see him that night.

[26] The witness explained that he did not take any action as a result of what he had seen. He said: "I see fights nearly every day in my job. I didn't want to get involved in anything." Even when he had seen someone injured in a fight badly enough to need an ambulance, he did not do anything, he simply passed by. "A couple of people who work in Falkirk have had their motors smashed for phoning the police". He said that he was willing to help the appellant in this appeal because he thought it "totally unfair that a man got the jail when someone else gave him the booting".

[27] In cross-examination he repeated that he did not see any police officers the third time he passed, he only saw an ambulance. He would have recognised Gary Lyon if he had been there. It was possible that Gary Lyon was there when the police arrived. He might not have seen him because he might have been in the kebab shop or somewhere else when he drove by. But it was not Gary Lyon who was doing the kicking; he was a lot taller and broader than Colin Wallace. The first time Mr Duncan passed he was going to the kebab shop. The second time was about ten or fifteen minutes later. People were there then but he could not identify any of them. It was possible that Gary Lyon was there. Mr Duncan went to pick up his next hire. The third time he passed the ambulance was there. He did not stop. He was going to the office to pick up his controller. He saw an ambulance but no police. There were other people, whom he did not recognise. He did not see Colin Wallace. He told his controller about the incident, but no written record was made of it. He repeated that he did not want to get involved.

[28] When he saw the appellant he was trying to walk. He was "all over the place, absolutely bottled". Mr Duncan did not stop to pick him up because his controller had directed him to pick up a hire at the Royal Hotel. He waited at the Royal Hotel for about two or three minutes. He did not see the incident until he passed the taxi rank. He was not mistaken as to who was doing the kicking. He did not notice anything taking place at the bridge when he was at the Royal Hotel. He was too busy looking for his hire.

[29] Colin Wallace said that he and the appellant were mates. They had known each other for at least ten years. They only met in the pub. On 24 January 2009 he attended Falkirk Police Office, having received a request from the police to do so. The appellant had said some weeks previously that the police would be coming to see him about his case. Mr Wallace was interviewed at the police office. He knew the complainer, who had a ponytail. On the night in question he was in Bonnybridge High Street, heading home after a night out in the Social Club. As he went along the High Street and approached the taxi rank at the bridge, he saw the complainer being helped by two people. His face was covered in blood and it was clear that something had happened to him. The people were holding him up against the railing beside the bridge. When he saw this, he himself was approximately at the start of the bridge. The police arrived about one minute after he came to the bridge. They asked him where he had been and if he had seen anything. It was nonsense to say that he was involved in the assault. He accepted that he was in the High Street when the complainer had been injured.

[30] In cross-examination, the witness said that the appellant had just told him that the police wanted to see him in connection with his case, and that Mr Duncan had said that it was he (Mr Wallace) who had assaulted the complainer. The appellant told him that he had nothing to worry about if he did not do it. Mr Wallace went and gave the statement. The police asked him what he had seen. When he arrived at the scene of the assault a man and a woman were helping the complainer. They were in their mid-forties or older. He saw Gary Lyon there. He recognised him. He was 100% sure that he was there. He was just standing round about. The police spoke to him and to Gary Lyon. Gary Lyon was drunk. Mr Wallace left before an ambulance arrived. Gary Lyon stayed there. There was no truth in Andrew Duncan's evidence that he (Mr Wallace) was the assailant.

[31] The appellant gave evidence. He said that he had been granted interim liberation on 25 June 2007. About four or five months later he had a conversation with Mr Duncan, who asked where he had been, and the appellant said that he had been in jail for an assault. Mr Duncan told him that he had seen him trying to get home and had seen the assault, and that he was not the assailant. His only relationship with Mr Duncan was as taxi driver and passenger. It would be rubbish to suggest that he had got him to help. He knew Colin Wallace from drinking in the same pubs. He always spoke if he saw him. He had told him that the police would be in touch, just to let him know. He told him that if he did not do it, he had nothing to worry about.

[32] The appellant was asked about a passage in the social enquiry report dated 27 February 2007, which was prepared before he was sentenced. It contained the following passage:

"Mr White states he was out with a friend in Bonnybridge drinking. He states he was quite intoxicated when an argument started. Mr White is unsure of what actually triggered the argument. He states that a scuffle started and he does not remember the details but the victim came back and a fight started. Mr White states due to his intoxication he cannot remember actual details.

He did state that it was outwith his normal character and he is very ashamed of his actions."

In another passage, relating to his alcohol consumption, the appellant is recorded as having stated "that on the day of his current offence he had overindulged". In setting out information relevant to the disposal, the social worker wrote: "Mr White stated he would be more than willing to pay a compensation order or fine in this case." The report concluded:

"The writer would respectfully suggest to the Court that a maximum period of Community Service be imposed as a direct alternative to custody due to the severity of this crime and that Mr White pay compensation to his victim as he stated at interview he would like to do and apologises for his actions."

[33] The appellant accepted that he had said all this to the social worker. The information had come from the evidence at the trial. He was piecing together the information on which he was found guilty. His lawyer had told him that he would probably receive a prison sentence. When passing sentence, the Court would look more favourably on him if he did not deny that it was he who had committed the assault. So he told the social worker what he wanted to hear, even though it was not true. He was just trying to avoid jail. The true account of his movements on the night in question was as contained in his police statement, about which evidence had been led at the trial.

[34] It was only in cross-examination by the Advocate depute that the appellant was asked for his own account of what happened on the night in question. He said that he walked from the Bridge Inn to the place where Andrew Duncan saw him. He was not involved in any incident on the bridge. He had been refused a drink in the Bridge Inn because the bar was closed. He did not try to persuade the complainer to take him somewhere else for a drink. He did not meet anyone in the Bridge Inn. He did leave it at the same time as Gary Lyon. There was no scuffle between him and the complainer. He did not assault him. Mrs Buchanan was not telling the truth at the trial when she gave evidence against him. The account given by Mr Neilson in his evidence was not what happened. Mr Neilson was just lying. So was Mrs Buchanan. He walked with Gary Lyon as far as Hardie's Bar. Gary Lyon then heard a commotion. There was a bit of screaming; it sounded a bit female. It came from the direction of the Bridge Inn. Gary Lyon turned back, but the appellant did not, because he wanted to go home. He was very much the worse for drink. He was not involved with the complainer in any way, he did not touch him. He did not go into Wellpark Terrace, he continued along the High Street towards the junction with Drove Loan. He gave an untruthful account to the social worker because he was advised not to deny what had happened. The court would look more favourably on him if he admitted it. The appellant denied suggesting to Mr Duncan that he should give evidence for him in the appeal. He was a bit surprised that, according to Mr Duncan, Mr Wallace was involved: "He doesn't strike you as that kind of person". The appellant told Mr Wallace that if he did not do it he had nothing to worry about. This did not mean that he did not think that Mr Wallace had carried out the assault.

The statutory provisions

[35] By section 106(1) of the Criminal Procedure (Scotland) Act 1995 any person convicted on indictment may, with leave, inter alia appeal against such conviction. Subsection (3) provides that by such an appeal a person may bring under review of this Court any alleged miscarriage of justice, which may include such a miscarriage based on inter alia "(a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings". By subsection (3A) such evidence may found an appeal only where there is a reasonable explanation of why it was not so heard. Subsection (3B) is not relevant for present purposes. Subsection (3C) provides inter alia that where evidence such as is mentioned in subsection (3)(a) is evidence which is from a person who gave evidence at the original proceedings, and which is different from, or additional to, the evidence so given, it may not found an appeal unless there is a reasonable explanation as to why the evidence now sought to be adduced was not given by that person at those proceedings, which explanation is itself supported by independent evidence. Subsection (3D) provides that for the purposes of subsection (3C) "independent evidence" means evidence which (a) was not heard at the original proceedings, (b) is from a source independent of the person referred to in subsection (3C), and (c) is accepted by the court as credible and reliable.

The authorities

[36] The following passages in the authorities to which reference was made in the course of the hearing appear to us to be of relevance for present purposes. In Megrahi v HM Advocate 2002 JC 99, Lord Justice-General Cullen, in delivering the opinion of the court, and under reference to Cameron v HM Advocate 1991 JC 251 and Kidd v HM Advocate 2000 JC 509, said at paragraph 219:

"We summarise the approach adopted in those cases in the following propositions: (1) The court may allow an appeal against conviction on any ground only if it is satisfied that there has been a miscarriage of justice. (2) In an appeal based on the existence and significance of additional evidence not heard at the trial, the court will quash the conviction if it is satisfied that the original jury, if it had heard the new evidence, would have been bound to acquit. (3) Where the court cannot be satisfied that the jury would have been bound to acquit, it may nevertheless be satisfied that a miscarriage of justice has occurred. (4) Since setting aside the verdict of a jury is no light matter, before the court can hold that there has been a miscarriage of justice it will require to be satisfied that the additional evidence is not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice. (5) The decision on the issue of the significance of the additional evidence is for the appeal court, which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial. (6) The appeal court will therefore require to be persuaded that the additional evidence is (a) capable of being regarded as credible and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial."

[37] In Fraser v HM Advocate
[2008] HCJAC 26, 2008 SCCR 407, Lord Justice-Clerk Gill said at paragraphs 131 to 134:

"[131] Sections 106(3) and 106(3A) of the 1995 Act regulate fresh evidence appeals in the context of the single ground of appeal that the 1995 Act allows, namely miscarriage of justice. Before new evidence can be considered by the court, the appellant must furnish a reasonable explanation why it was not heard at the trial. Unless there is a reasonable explanation, the appeal cannot succeed, no matter how significant the proposed new evidence may be (Campbell v HM Advocate 1998 JC 130 at pp. 150, 176-178; Barr v HM Advocate 1999 SCCR 13, at pp. 17-18).

[132] If the appellant provides such an explanation, the onus being on him, the court must consider whether the new evidence would have been capable of being regarded by a reasonable jury as credible and reliable. If the court is so satisfied, it must next consider the cogency of the new evidence. The new evidence must be important evidence of such a kind and quality that it was likely to have been found by a reasonable jury, under proper directions, to have been of material assistance in their consideration of a critical issue that emerged at the trial (Cameron v HM Advocate 1991 JC 251, per Lord Justice-General Emslie at p 262).

[133] At that stage the appeal can succeed only if the court is satisfied that if the jury had heard the new evidence, it would have been bound to acquit; or that the new evidence is of such significance that it is reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice (section 103(3)(a); Cameron v HM Advocate, supra, at pp. 261-262). Since there is a danger that fresh evidence may assume greater strength than it would have had if it had been led at the trial (Gallacher v HM Advocate 1951 JC 38, at p. 47), it is essential that this Court should assess it in the context of the whole evidence led at the trial (Megrahi v HM Advocate 2002 JC 99, at para. 249; c.f. Lyon v HM Advocate 2003 SCCR 692).

[134] These principles are based, in my view, on the assumption that the proposed new evidence, if available to the defence at the trial, would in fact have been led. In this case I am not persuaded that we should make that assumption; but if we are required to make it for the purposes of section 106, it follows, in my view, that we must consider that evidence in its entirety, taking into account those elements that were unfavourable as well as those that were favourable to the appellant."

Discussion

[38] It is conceded by the Crown that the reasonable explanation test has been met in the present case, so we need not consider it further. What we do have to consider is the quality of the fresh evidence, and the credibility and reliability of the witnesses who gave evidence at the hearing of the appeal, as related to the entire evidence in the case.

[39] There is no doubt that the complainer was the victim of a serious assault. At the trial he gave evidence that the appellant was one of his assailants. The jury must have accepted him as a credible and reliable witness. Mr Neilson identified the appellant as the complainer's assailant. Despite a suggestion at the trial that he had a personal grudge against the appellant, the jury must be taken, having regard to the sheriff's directions, to have accepted him as credible and reliable, otherwise they would not have convicted the appellant. Mrs Buchanan identified the appellant with 95% confidence as one of the people she saw at the east end of High Street. It was not suggested that she had any motive not to tell the truth. There was therefore a substantial body of evidence implicating the appellant. There was no evidence implicating Mr Wallace, and indeed his name does not appear to have been mentioned at the trial.

[40] We did not regard Mr Duncan as an impressive witness. His demeanour, especially in cross-examination, did not inspire confidence. While he gave his main account clearly enough in examination-in-chief, he became vague when pressed about its details in cross-examination. We find it difficult to accept that he was unaware at the time of the trial that one of his regular customers was being prosecuted on indictment for an assault which he himself had witnessed, especially in a small community like Bonnybridge where such matters are common knowledge. His evidence gives rise to a number of difficulties. (1) If, on the appellant's account in his police statement, Gary Lyon turned back when he heard a scream from the direction of the Bridge Inn, and if, as may be inferred, that was related to the assault on the complainer, it is difficult to see how the appellant could have been at the point where Mr Duncan claimed to have seen him: Mr Duncan's account was that he saw the assault several minutes after he had seen the appellant, and indeed after he had waited for a time outside the Royal Hotel, during which he saw nothing happening further down High Street. (2) Mr Duncan claimed not to have seen Gary Lyon at the scene of the assault; yet both Mr Neilson and PC Grant at the trial, and Colin Wallace in his evidence before us, said that he was there for some time. (3) PC Grant's evidence was that when he arrived at the locus he found the complainer kneeling on the pavement, that there was a woman standing nearby trying to assist him, and that Gary Lyon was standing nearby. It may be taken from this that on his evidence the ambulance had not yet arrived. This is consistent with the evidence of Mr Wallace before us. Yet Mr Duncan claimed to have seen the ambulance, and no police, the third time he passed. It is therefore difficult to reconcile his evidence either with the evidence led at the trial or with any of the other evidence led before us. We are not prepared to accept him as a credible witness.

[41] By contrast, we found Mr Wallace to be an entirely straightforward witness. Nothing in his demeanour suggested that he was withholding the truth. He gave a clear account of his movements on the night in question, albeit at an interval of several years. He said that he came upon the scene of the assault after it had happened. He denied having any part to play in the assault. As we have said, the evidence led at the trial did not implicate him in any way. His account of the scene after the assault is consistent with the evidence led at the trial. He appeared to us to be credible and reliable.

[42] The appellant's evidence did not impress us. On his own account, he was very drunk on the night in question. He gave no convincing explanation as to why Mr Neilson or Mrs Buchanan should have been lying when they identified him respectively as having been involved in two phases of the incident. He gave no explanation at all in the course of his evidence as to why the complainer should have identified him as one of his assailants. One of the main difficulties facing him now is the apparently candid admission he made to the social worker about his involvement, coupled with expressions of regret and a willingness to pay compensation. While we find it understandable that he might have understood that his lawyer's advice was not to continue to deny an offence which he knew he had committed, we find it much harder to understand why he would wish to make such an unqualified admission if there was no truth in it. On any view, he is a man who is prepared to tell lies in order to secure more favourable treatment in court - either before the sheriff or before us. We do not accept his evidence.

[43] In our judgment, the statutory test, as explained in the authorities, is not met in this case. There has been no miscarriage of justice.

Result

[44] For the foregoing reasons, neither of the original grounds of appeal nor the additional ground of appeal succeeds. This appeal must accordingly be refused.

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