Issue 43 November 2008 - Current Awareness, Criminal Procedure

CRIMINAL PROCEDURE AND EVIDENCE - Paul McInnes v HM Advocate [2008] HCJAC 53

M, the appellant, was convicted of assault. A fight had broken out on the dance floor of a hotel. M, co-accused and the complainer were forcibly ejected by stewards. Upon his ejection the complainer was struck a blow to the head, administered by what was described by one witness as a "roundhouse" kick as a result of which he was brought to the ground, where he was then set upon by a number of individuals. The crucial issues at the trial were the identities of the assailants, including that of the individual who had administered the "roundhouse" kick. M denied any part in the assault. He lodged a special defence of alibi in relation to the incident outside it. He maintained that, having become aware that there was going to be trouble on the dance floor, he had decided to leave and had telephoned a friend to pick him up by car. The fight had broken out (in which he had played no part) and he had, with others, been ejected by a steward but, when outside, he had made his way to his friend's car and left in it. Evidence was given in support of that alibi. The Crown case depended on proof by witness identification that M was one of the assailants. A witness called Pearce testified that, when he had ejected the complainer from the hotel, he had seen M and one of his co-accused standing outside, near the door. He described M as wearing a black leather jacket, white T-shirt and jeans. He testified that he had seen the appellant administer the "roundhouse" kick to the complainer's head, which had brought him to the ground. When on the ground he had been kicked by the co-accused who had been with M. On appeal M argued that the Crown had not disclosed a statement from Pearce given at an identity parade which could have assisted the defence as in that Pearce was less certain on identification. He argued that he had been denied a fair trial in breach of art.6 (1). 

Held: Appeal refused.

(1) Following the decision of the Judicial Committee of the Privy Council in Sinclair v HM Advocate, 2005 S.C. (PC.) 28, the Crown has, according to the obiter observation of Lord Rodger at para. [49], an obligation to disclose to the defence (all) the police statements of all the witnesses who are to be led at the trial. "This helps to ensure that there is equality of arms between the two sides."

(2) It so helps because disclosure of such statements may, depending on how the trial develops, be of value to the defence for the purposes of cross-examination or otherwise, the prosecutor being assumed to have access, or the means of access, to them for the purposes of the presentation of his case. When such disclosure is not made, it will be necessary to assess, in the circumstances of the particular trial, whether this has resulted in the trial as a whole being unfair.

(3) There will be circumstances in which it will be clear that no such unfairness has arisen. These will include circumstances in which the witness speaks consistently with his or her prior police statements and also circumstances in which any inconsistency is clearly immaterial to the crucial issues at the trial. Where any inconsistency may arguably have been material, it will be necessary to adopt and apply a test for judging whether there has been unfairness. The critical issue was whether the principle of equality of arms was breached.

(4) It will be so breached if access to the statement in question would have been of material assistance to the defence, so that denial of access prejudiced that defence. It might also be breached if, having regard to the realities of the trial and viewing the matter realistically; the denial of access might have prejudiced the defence. Whether there has been or may have been such prejudice will be a matter for assessment by the appeal court in the circumstances of each case.

(5) In this case it could not be maintained that art.6 (1) had been breached. Although the Crown should have disclosed the statement the failure to do so had no resulted in unfairness. While the statement tended towards the identification of a person other than M as the initial assailant, the statement itself qualified that identification by adding that the witness was unsure of it.  It also carried an inherent unreliability in the assertion that "No’s 4 and 6 looked very familiar". Pearce had identified M as being a possible fit at an identity parade a few months earlier but his identification had not been unqualified. This had been known to the defence.Viewed that way the fact that his statement at the later parade had not been disclosed could not be regarded as material to cross-examination. The defence were already aware that Pearce had on a previous occasion been less certain that M was the assailant than he had been at trial.