APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Drummond Young Lord Philip	[2012] HCJAC 144 XM19/11 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in PETITION TO THE NOBILE OFFICIUM by CATHERINE HANEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Targowski, QC; Paterson Bell (for Virgil Crawford, Stirling)

Respondent: Prentice, QC, AD; the Crown Agent

24 October 2012

[1] On 27 April 2011, at the High Court in Glasgow, the appellant was found in contempt of court by failing to attend when duly cited as a witness and on account of the manner in which she eventually gave her evidence.

[2] The circumstances were that the appellant had been personally cited to give evidence at the trial of Donna Murphy (see [2012] HCJAC 74). On 18 April, the seventh day of the trial, she had failed to appear and a warrant was issued for her arrest. She was duly arrested and commenced her evidence on the following day. She later maintained that she had become temporarily separated from her partner, who had held her travel warrant, as a result of being chased by a third party. The trial judge explains in his report that, at an early stage of her evidence-in-chief, she attempted to volunteer certain information, but was prevented by the judge from doing so. Notwithstanding that warning, which was to refrain from volunteering information as distinct from answering questions, she elected to state that the accused had been "targeting" young women in prison. The rest of her examination-in-chief appears to have been completed reasonably satisfactorily, but significant difficulties arose when she came to be cross-examined by Ms Murphy's counsel. It is not unreasonable to suggest that the nature of the cross-examination was designed from its outset to treat the witness as lacking in credit by, in particular, adducing from her that she was both a criminal herself and from a well-known criminal family. The opening gambit was the following question:

"Q So Miss Haney, when did a member of the famous Haney clan decide to become a grass?"

The appellant was warned several times by the trial judge not to be argumentative and to answer the questions put, but it is relatively clear from the transcription, which has been obtained, that there were a number of occasions on which she interrupted counsel and behaved in a hostile and offensive manner towards him. A particular exchange took place in relation to whether the appellant had overheard a remark allegedly made by the accused in Cornton Vale prison. This was as follows:

"Q So the picture the jury should have is, as luck would have it, you and these other ladies are looking down and here sitting on a blue chair, solitary splendour, nobody around her ... have I got that right? That's the picture you want to convey is it?

A That is the picture. But what, would you like me tae make it fancy for you. Bring things in that wurney there?

Q I'd like you to do what you said you would do and that is tell the truth.

A An that's what I'm doin, telling the truth. I was actually part of this. I was there. I was actually part of this. I was actually there and seen what the situation, what the surroundings, everything was. You wurney.

Q That's why I'm asking ....

A You'd be away singing the Sash somewhere else".

The latter comment was calculated to insult counsel and was a reference to an incident which had involved counsel some time previously and had attracted media attention. A further exchange took place in relation to a statement said to have been made by the appellant to the police. Initially, when asked about whether she had said a particular thing to the police, she had, at first, denied it. Having had the statement put to her, she said she could not remember it. She said that she would not have signed a statement if it had not been true yet, thereafter, stated that she had not read the statement. However, it is fair to say that the appellant did answer all the questions and did not positively refuse to do so. Furthermore, cross-examination by the co-accused took place without further incident.

[3] Having found the appellant to be in contempt, the trial judge continued the cause in order to obtain a Social Enquiry Report ultimately until 23 June 2011. After sundry further procedure, and several diets at which the appellant again did not appear, a further arrest warrant was issued and executed. On 10 August 2011, the appellant was sentenced to one year's imprisonment for the contempt. By that time, the appellant had been maintaining that she was pregnant. However, repeated attempts by the trial judge to obtain independent verification of this had failed. There had at least been conflicting accounts from the appellant regarding her due date and the trial judge invited the Crown to investigate that matter as a potential attempt to defeat the ends of justice. No proceedings followed.

[4] The appellant lodged a Petition to the Nobile Officium of the court challenging the finding of contempt. In particular, it was stated in the Petition that the appellant's failure to appear did not in itself amount to wilful behaviour, but arose because of the difficulty with the travel warrant. When she had given evidence, the appellant had given testimony incriminatory of the accused. Emphasis was placed on the opening question which, it was averred, the appellant had found upsetting and which had set the tone for the heated exchanges which followed. It was said that the appellant's conduct had not amounted to a direct challenge to the authority of the court or to the integrity of its proceedings. This was amplified in submissions, under reference to the definition of contempt of court in HM Advocate v Airs 1975 JC 64 (LJG (Emslie) at 69). The trial judge had erred in holding that the appellant's attitude and behaviour, in giving her evidence, met the test of challenging, or affronting, the authority of the court. The appellant had not been guilty of prevarication; that is to say providing equivocal answers and inconsistencies or affecting ignorance and want of memory (see Hume, Crimes, i, 380).

[5] It was also submitted that the conjoining of the appellant's failure to attend court, with her behaviour in court, amounted to an error. The failure to attend court was an entirely separate matter, where the test was one of whether the conduct amounted to wilful defiance (Pirie v Hawthorne 1962 JC 69, LJG (Clyde) at 74 and McNeillage, Petitioner 1999 SCCR 471). The trial judge had been in error in that he had stated that, had the failure to attend stood alone, he might have been persuaded that there had been no contempt at all. If that were so, he should have put that failure aside when considering whether the remaining conduct met the relevant test. It had appeared also that the trial judge, in his report, had taken account of subsequent events in order to justify his finding of contempt.

[6] In response, the advocate depute stressed the need to take into account not simply the terms of the written transcription, but also the demeanour of the witness as observed by the trial judge. The judge had started with the appellant's failure to abide by the citation and, after repeated warnings during the course of the appellant's evidence, had determined that the additional conduct meant that the threshold required for contempt had been crossed. He had explained his reasons for that finding and these were not concerned with what had occurred in relation to the appellant's behaviour after the finding had been made in April.

[7] The court agrees that the starting point for a consideration of whether a contempt of court occurred in this case is the failure of the appellant to appear, when duly cited, to give evidence at the High Court in what was a murder trial. Although there was some form of explanation ultimately tendered, it was significant that there had been no attempt to communicate any difficulty to the High Court at the time. In determining whether a contempt had occurred, the trial judge was entitled to take the view that that non-attendance did amount to wilful defiance, particularly in light of what he observed subsequently in the witness box. In determining whether the appellant's behaviour, including her conduct in the witness box, amounted to a contempt, the trial judge was entitled to look at the accumulation of circumstances. Although the failure to attend of itself might not have been enough, when viewed on its own, in the trial judge's mind, the succession of matters occurring, during the appellant's testimony, provided sufficient material for the trial judge's ultimate conclusion. The court reaches that view with some hesitation, but it keeps firmly in mind that the trial judge had the advantage of seeing and hearing the appellant as she gave her evidence in court. In particular he was best placed to gauge the manner in which the appellant responded to questioning from counsel. The court does not consider that the judge took account of subsequent events in holding the appellant to be in contempt given that the finding, and brief reasons for it, were minuted at the time. The court notes, with some concern, the opening question in cross-examination, which was clearly designed to provoke a reaction in the witness, and did so. That provocation might have been a significant factor in determining the appropriate sentence to impose upon the appellant and may have been a major feature to be highlighted in mitigation. Indeed, perhaps the trial judge thought that too. However, there is no challenge taken to the sentence imposed by the trial judge. The decision not to appeal that aspect cannot be criticised, however, in light of the appellant's record. In all the circumstances therefore, the court must refuse the prayer of this Petition.

DL