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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> McIntyre v. Her Majesty's Advocate [2005] ScotHC HCJAC_50 (20 April 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_50.html
Cite as: [2005] ScotHC HCJAC_50, 2005 SCCR 380, [2005] HCJAC 50, 2005 GWD 25-470, 2005 SLT 757

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McIntyre v. Her Majesty's Advocate [2005] ScotHC HCJAC_50 (20 April 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Macfadyen

Lord Carloway

 

 

 

 

 

 

 

 

 

 

[2005HCJAC50]

Appeal No: XC1014/03

OPINION OF THE COURT

delivered by LORD MACFADYEN

in

NOTE OF APPEAL

by

COLIN McLEAN McINTYRE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

 

 

Appellant: Burns, Q.C.; T. Bannigan & Co., Glasgow

Respondent: Di Rollo, Q.C., A.D.; Crown Agent

20 April 2005

Introduction

 [1]      The appellant was indicted at the instance of the respondent on three charges. After trial, he was convicted of charges (1), (2) and (3)(a) and (e). He was sentenced to two months imprisonment in respect of charge (1), three months imprisonment in respect of charge (2), and twenty-one months imprisonment in respect of charge (3), all three sentences to be served concurrently. He appeals against his conviction in respect of charge (3). He also appeals against the sentences imposed in respect of all three charges.

[2]      The parts of charge (3) in respect of which the appellant was convicted were in the following terms:

"between 15 March 2001 and 3 June 2001, both dates inclusive, at the house occupied by Balwant Singh Chadha ... [in] Cumbernauld and elsewhere meantime to the prosecutor unknown you ... did pursue a racially aggravated course of conduct which amounted to harassment of a person namely said Balwant Singh Chadha ... and did:

(a) on 15 March 2001 by means of a telephone call to said Balwant Singh

Chadha at [his home address], utter racial remarks and threaten [him] with violence;

...

(e) on 3 June 2001 by means of repeated telephone calls to said Balwant

Singh Chadha at [his home address], utter racial remarks, swear and threaten [him] with violence;

and this you did with the intention of harassing said Balwant Singh Chadha and in circumstances where it would appear to a reasonable person that said course of conduct would amount to harassment of said Balwamt Singh Chadha:

CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, Section 50A(1)(a)."

 [3]      In his Note of Appeal the appellant advanced four grounds of appeal. Leave to appeal was refused in respect of ground 3. Ground 4 was directed against the sentences imposed by the sheriff, and has not yet been argued. Ground 1 was directed against the sheriff's decision admitting evidence of an expert witness, who compared the tape recordings of the telephone calls referred to in charge (3) with the tape recording of an interview of the appellant conducted while he was detained under section 14 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), and expressed an opinion which afforded corroboration of the complainer's evidence that the voice of the caller was that of the appellant. Ground 2 was based on additional evidence. As originally presented, it was concerned with the evidence of Lindsay Jane Clelland (referred to in the Note of Appeal as Lindsay Johnston), who was said to be able to give evidence to the effect that the telephone calls were made not by the appellant, but by the person in respect of whom he had lodged a special defence of incrimination, namely Alan Burns. Shortly before the hearing of the appeal, the appellant presented a proposed amendment to that ground of appeal, seeking to introduce further additional evidence, namely that of Alan Burns himself, and of an expert witness, Dr Dominic Watt, who had prepared a report on a comparison of the voices of the appellant, Alan Burns, and the caller in the telephone calls mentioned in charge (3), and had expressed an opinion that the caller was more likely to be Alan Burns than the appellant.

[4]      At the commencement of the hearing of the appeal, Mr Burns Q.C., who appeared for the appellant (and whom, for the avoidance of confusion, we shall call "Mr Burns" whereas we shall refer to Alan Burns as "Alan Burns" or "Burns"), invited us to allow ground of appeal 2 to be amended in the manner proposed. Having heard Mr Burns in support of that motion, and the Advocate depute in opposition to it, we allowed amendment of the ground of appeal. Thereafter we heard argument in support of and in opposition to grounds of appeal 1 and 2 (as amended).

Ground of appeal 1

  1. The background circumstances
    2.  [5]          The telephone calls to the complainer which became the subjects of charge (3)(a) and (e) were recorded, and the police took possession of those recordings.

    [6]          On 9 June 2001 the appellant was detained by the police under section 14 of the 1995 Act. While detained, he was interviewed. An audio recording was made of the interview. The transcript of the recording of the interview discloses that, after the appellant had been asked to confirm his name, age and address, one of the police officers who was conducting the interview, namely Detective Constable Ian Lockhart, cautioned him. According to the transcript the caution (stripped of hesitations) was in the following terms:

    "Colin ah'm going to ask you questions about malicious telephone calls that have been made which have contained threats of violence and also verbal and racist abuse, okay, you're not bound to answer but if you do your answers will be tape recorded and maybe (sic) noted and maybe (sic) used in evidence."

    (The word "maybe" is on each occasion plainly a mis-transcription of the words "may be".) The appellant was asked if he understood the caution, and responded in the affirmative. The interview then proceeded for a total of approximately an hour, spread over a period of three hours. During the interview the appellant answered a considerable number of questions.

    [7]          The police officers who conducted the interview did not have it in mind to subject the recording of the appellant's voice which they were obtaining to analysis and comparison with the recordings of the telephone calls mentioned in charge (3). However, in April 2002 the police were instructed by the Procurator Fiscal to obtain an expert report on the comparison of the recording of the telephone calls with the recording of the appellant's interview. The materials were submitted to Mrs Elizabeth McLelland. In due course she provided a report which supported the inference that the appellant was the person who made the telephone calls.

    [8]          At the appellant's trial, Mr Burns objected to the admissibility of that evidence on the ground that it had been unfairly obtained. The objection was first raised when DC Lockhart was asked to give evidence about the interview. It was repeated when Mrs McLelland was called to give evidence. The objection was repelled. In his report the sheriff states:

    "Without the evidence from Mrs McLelland which was necessary to corroborate Mr Chadha's recognition of Mr McIntyre as the caller, the Crown could not have secured a conviction on charge three."

    (b) The appellant's submissions

     [9]          The submission made by Mr Burns in support of ground of appeal 1 was a simple one, which was not capable of much elaboration. It was to the effect that it was unfair of the Crown to subject the recording of the appellant's interview to expert analysis and comparison with the tape recordings of the telephone calls to the complainer. It was not suggested that the police had acted unfairly. They had not intended that the recording of the interview be used in that way. It was thus beside the point to note, as the sheriff did, that the police were innocent of any attempt to deceive or mislead the appellant. It was the subsequent use of the recording by the Crown which was in the circumstances unfair. In interviewing the appellant as they did, the police were exercising powers conferred on them by section 14(7)(a) of the 1995 Act. The appellant had been advised, in accordance with section 14(9) that he was under no obligation to answer questions put to him. He had not, however, been advised that the recording of what he said, if he chose to say anything, might be subjected to analysis and comparison with recordings of the calls which were the subject of the investigation then being carried out. The caution administered did not warn him of that possibility. The warning that what he said might be used in evidence would be understood as meaning that the content or substance of what he said (i.e. any admission or incriminating remark) might be so used. It did not convey any warning that his recorded voice might be subjected to analysis and comparison. He thus was not warned that the recording might be used in the way the Crown sought to use it as evidence supporting the identification of his voice as that of the maker of the offending calls. He therefore gave no informed consent to such use of the recording, and was deprived of the opportunity, which would have been available to him if he had been so warned, of refusing to speak in the course of the interview. Section 18 of the 1995 Act conferred power on the police to take various forms of samples, such as fingerprints, hair or nail samples, and swabs of bodily fluid. It contained no power, however, to take samples of a person's voice for scientific examination. In the absence of power to take voice samples for such examination or analysis, it was unfair to use the recording of the appellant's interview for such purposes, without informing him of the possibility that it might be so used, and thus without giving him the opportunity to decline to provide evidence against himself.

    (c) The Crown submissions

     [10]          The Advocate depute submitted that the sheriff had been correct to rule that the evidence of Mrs McLelland was admissible. He maintained that, a full caution having been administered at the commencement of the interview, the recording of the interview had been legitimately made. The subsequent use made by the Crown of that legitimately obtained material was itself legitimate, and the evidence of Mrs McLelland based on her consideration of the recording of the interview and her comparison of it with the recordings of the offending telephone calls was admissible. The recording (whether audio or video) of an interview, after a common law caution, could be used as evidence not only of what was said by the suspect, but also of his demeanour. The Advocate depute submitted that, in the context of a case about offensive telephone calls, the ordinary caution that anything said might be recorded and used in evidence served as a sufficient warning that that recording might be used as evidence of the identity of the appellant as the caller. The complainer could have been asked to listen to the recording of the interview, to see if he recognised the appellant's voice as that of the caller. Asking Mrs McLelland to apply her skill to analysis of the appellant's voice on the recording of the interview, and to comparison of it with the recorded voice of the caller, was not essentially different.

    [11]          The Advocate depute accepted that there was no statutory power to obtain a voice sample as such. Section 18 was of no assistance. A warrant to obtain a voice sample might be obtained, but there were obvious practical difficulties. An accused person, asked to provide a voice sample, could readily distort his voice sufficiently to make the sample worthless for purposes of comparison.

    [12]          The Advocate depute submitted that relevant guidance could be obtained from the common law relating to the taking of fingerprint impressions from a suspect. He referred to Adair v McGarry 1933 JC 72, per Lord Justice Clerk Alness. At page 79, his Lordship said:

    "Manifestly, the question before us is of importance, not only to the individual, but also to the public. On the one hand, the individual must be protected against any undue invasion of his rights. On the other hand, it is evident that the affirmation of the right claimed by the Crown may facilitate the investigation and detection of crime, and that the denial of that right may impede, if not frustrate that process."

    His Lordship continued (at page 80):

    "Viewed apart from authority, then, the problem presents itself to my mind thus ― The police must be armed with all adequate and reasonable powers for the investigation and detection of crime. Is finger-printing a reasonable incident of that process, not forbidden by the common law, and not unduly invading the rights of the accused? ...

    As regards undue invasion of the personal rights of the accused, one must have a sense of proportion. Certain it is that in practice, hitherto unchallenged, a person who is suspected of crime may be brought ... to the police station, that he may be paraded for purposes of identification, that he may be stripped, and that he may be searched for any incriminating natural or artificial mark upon his person. ... And yet, it is argued that the comparatively innocuous process of taking a mould of the suspect's thumb is excluded from the rights of the police. I inquire ― Why? To that question I have heard no adequate answer. ... The suggested protection by warrant is quite illusory. If the accused is innocent, no harm is done by finger-printing. ... If, on the other hand, he is guilty, the process renders it more likely that his guilt may be established. That is, I apprehend, desirable."

    His Lordship then considered a number of authorities, and concluded (at page 82):

    "Accordingly, I reach the conclusion that I am unimpeded by authority from giving effect to the view which, apart from it, I should, as already stated, have entertained. To sum up then, I consider that the power claimed by the police is a reasonable and proper power, necessary for the investigation of crime and for the detection of the criminal, and that it involves no undue invasion of the rights of the individual."

    Applying that reasoning in the present case, the Advocate depute submitted, led to the conclusion that the prosecuting authorities had power at common law to subject the recording of the voice of the appellant, which had been legitimately obtained, to expert analysis and comparison.

    (d) Discussion

     [13]          The proposition advanced in support of this ground of appeal is that, notwithstanding the common law caution administered at the commencement of the interview, it was unfair to the accused to subject the recording of his voice, obtained in the course of the interview, to expert analysis and comparison with the recording of the voice of the maker of the offending calls, so as to enable an expert witness to provide evidence as to whether the voices were likely to be the same. In our opinion, fairness is the proper test. As Lord Justice Clerk Alness pointed out in Adair v McGarry, however, in judging what is fair to an accused in the context of the investigation and detection of crime, it is necessary to bring into account the public interest. Although this case was not argued with reference to Article 6 of the European Convention on Human Rights, we are of opinion that Lord Justice Clerk Alness's approach to the question of fairness is not at variance with the approach now required by virtue of Article 6. As Lord Bingham of Cornhill pointed out in Brown v Stott 2001 SC (PC) 43 at 60A:

    "The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within Article 6 are not themselves absolute. ... The Court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention."

    [14]      At the outset of the recorded interview the appellant was advised that he need not answer the questions put to him, and was warned that the interview would be recorded, and that the recording might be used in evidence. Despite the fact that it was made clear to the appellant that the officers conducting the interview were investigating threatening and abusive telephone calls, we do not think that it is realistic to regard the normal caution as conveying a warning that the tape recording of the interview might be subjected to voice analysis and comparison with recordings of the offending telephone calls. The concept of the interviewee's "answers" being "used in evidence" may possibly be open, in the abstract, to a sufficiently wide interpretation to cover such analysis and comparison, but we do not think that it is realistic to suppose that the caution caused that possibility to cross the appellant's mind. It did not cross the minds of the interviewing officers. In our view the only natural meaning of the common law caution is that the substance or content of the interviewee's answers, if wholly or partly incriminating, may be used in evidence against him. We do not think that it conveys more than that. We therefore do not consider that the Crown can demonstrate the fairness of the course they followed simply by maintaining that the appellant was adequately warned of it by the common law caution administered at the beginning of the interview.

    [15]          Nevertheless, the circumstances of the interview, and the fact that it was preceded by a common law caution, remain in our opinion relevant considerations when assessing the fairness of the procedure as a whole. The interview was one which the police were entitled to conduct in terms of section 14(7)(a) of the 1995 Act. The administration of the caution at the beginning of the interview was a proper procedural safeguard of the fairness of the interview as a means of putting allegations to the appellant and giving him an opportunity to respond if he wished to do so. The result was that the recording of the interview was lawfully obtained. It formed a legitimate part of the investigation of whether the appellant was criminally responsible for the telephone calls received by the complainer. Consequently, at the end of the interview, the police were in possession of a legitimately obtained recording, which happened to contain a sample of the appellant's voice. The recording was, in our view, in no different a position from any other evidence legitimately obtained by the police and passed, in due course, to the prosecuting authorities.

    [16]          A person's voice is in some ways like his fingerprints or his blood. It forms part of his physical make-up. It is one of his physical attributes. On the other hand, there is one aspect of it which may be fundamentally different. Unlike blood type or fingerprints, a person's voice is adaptable. It can be deliberately varied. It can be distorted. There is no suggestion, however, that in the present case the sample of the appellant's voice contained in the recording of his police interview is subject to such adaptation, variation or distortion. It was obtained in circumstances in which, because neither the appellant nor the police officers were contemplating the possibility that the recording might yield a voice sample, there is no reason to treat it as other than an objective sample of the appellant's voice. The public interest that that sample be available for analysis and comparison is in our view clear. We do not consider that there is any clear basis for thinking that such use of the sample is unfair to the appellant.

    [17]          This case is not concerned with circumstances in which an interview was undertaken with the ulterior motive, concealed from the appellant, of obtaining a voice sample from him. The interview was carried out in good faith for the purposes contemplated in section 14(7)(a). There thus came to be available to the prosecuting authorities a legitimately obtained sample of the appellant's voice, which could be regarded as objective evidence, analogous to a fingerprint or blood sample which might also at common law be legitimately obtained by the police. We are not persuaded that, properly weighing the interests of the appellant against the public interest, it was unfair of the prosecuting authorities to subject that legitimately obtained material to expert analysis and comparison, and to rely on the resulting expert evidence in support of the case against the appellant.

    [18]          In our opinion therefore the sheriff was right to repel the objections to the recording of the interview and to the evidence of Mrs McLelland. Ground of appeal 1 accordingly fails.

    Ground of appeal 2

    (a) The applicable law

     [19]          The statutory provisions regulating appeals on the ground that additional evidence is available are to be found in section 106 of the 1995 Act. That section provides inter alia as follows:

     

    "(3)

    By an appeal under subsection (1) above a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on ―
       

    (a)

    subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings; ...
     

    "(3A)

    Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard."
    [20]          In the circumstances of the present case, the issues which, in terms of those provisions, require to be addressed and answered in the affirmative before the proposed additional evidence can be heard are (1) whether there is a reasonable explanation for that evidence not having been heard at the trial, and (2) whether that evidence, if given in the contemplated terms, would be relevant and of such significance that the verdict reached in ignorance of it must be held to have been a miscarriage of justice.

    [21]          In relation to the first of these issues Lord Justice Clerk Cullen made the following observations in Campbell v H. M. Advocate 1998 JC 130 at 147A-C:

    "... it would seldom, if ever, be a reasonable explanation for not calling a witness that the risk of calling him was at the time considered too great and counsel advised that he should not be called. Accordingly, in my view, it would be difficult, if not impossible, for evidence to be admitted at the stage of an appeal if a tactical decision was taken not to adduce it at the trial. Likewise, if the explanation were merely that the appellant was not aware of the existence of the witness; or, where he was aware of the existence of the witness, he was not aware that he was able or willing to give evidence of any significance, this would hardly provide 'a reasonable explanation'. But it might be different if the appellant also could show that at the time of the trial he had no good reason for thinking that the witness existed, or, as the case might be, that he would give the evidence in question. Thus much might depend on the steps which the appellant could reasonably be expected to have taken in the light of what was known at the time. The underlying intention of the ... legislation is that the court should take a broad and flexible approach in taking account of the circumstances of the particular case."

    [22]          In Megrahi v H. M. Advocate 2002 JC 99 the court (at paragraph [219]) summarised the proper approach to additional evidence cases in a number of propositions. Of these, the following dealt with the second issue in the present case, namely the issue of the significance of the additional evidence:

    "(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."

  2. The appellant's submissions
    3.  [23]      In support of the proposition that there was a reasonable explanation of why the additional evidence on which he sought to rely had not been heard at the trial, Mr Burns relied on the account which he had already given, in connection with the motion to amend the grounds of appeal, of the steps taken to obtain the evidence of Alan Burns before the trial. It was the appellant's position that the telephone calls mentioned in charge (3)(d) and (e) were made by Alan Burns. In due course a special defence of incrimination was lodged, alleging that he made those calls. Burns had been precognosced by the appellant's original solicitors. Efforts were made to trace him at the end of 2002 and again shortly before the trial in July 2003. These efforts took the form of the appellant himself attempting to find Burns at two addresses which he was understood to use, one in Cumbernauld and one in Baillieston. They were unsuccessful. It has since been learned that there had been a warrant out for Burns's arrest since 2001 and that the police had not succeeded in executing it. His name had been included in a list of defence witness provided to the Crown in 2002 in connection with the appellant's trial. It was understood that the police had sought to trace him in that connection too, without success. His brother, Steven Burns, gave a precognition indicating that he had not seen him for eighteen months. Alan Burns was cited as a defence witness for the appellant's trial. That citation was served by sheriff officers, who left it at the Baillieston address on 7 July (the day before the trial started). It was not answered.

    [24]          Mr Burns further offered an explanation of the approach adopted to the evidence of Alan Burns at the time of the trial. Mr Burns had advised the appellant that, in view of (i) the failure to trace the witness, (ii) the fact that the case had already been postponed on a number of occasions, (iii) the fact that the twelve month time bar had already been extended on a number of occasions, by a total period of over twelve months, and (iv) the fact that other witnesses had been cited and were present, a motion to adjourn the trial because of the absence of Alan Burns was not likely to succeed. The appellant was keen to proceed to trial. A decision was therefore taken to proceed to trial. No motion to adjourn the trial was made. The unavailability of Alan Burns was not formally raised with the sheriff.

    [25]          Following his conviction in July and sentence in September 2003, the appellant met a man called Wark in the course of 2004. Wark knew Alan Burns, and had a telephone number for him, which he gave to the appellant. The appellant contacted Alan Burns by telephone, and asked for his assistance with his appeal against conviction. At first, Burns declined until he had taken legal advice. Later there was a meeting at which he agreed to help the appellant. He then gave an affidavit dated 20 October 2004. In it he said that he received the citation served on 7 July 2003, but chose not to answer it because he had a holiday in Turkey booked. In the affidavit he also states that he was responsible for abusive telephone calls to the complainer's number, and that the appellant was not present on that occasion. He appears to refer to only one occasion, and is inspecific as to its date.

    [26]          Alan Burns also agreed to give a sample of his voice. That sample, the recordings of the offending telephone calls, and the recording of the appellant's police interview, were all submitted to Dr Dominic Watt. In his report dated 21 February 2005 he expressed the opinion that Alan Burns was more likely than not the speaker on the charge (3)(a) recording, that it was highly probable that he was the speaker on one of the charge (3)(e) recordings, that it was probable that the he was the speaker on another charge (3)(e) recording and that the possibility was not excluded that he was the speaker on the third charge (3)(e) recording. He also expressed the opinion that the possibility could not be excluded that the appellant was the speaker on all of these recordings.

    [27]          Mr Burns submitted that in these circumstances we should hold that there was a reasonable explanation of why the evidence of Alan Burns was not heard at the trial. Reasonable steps had been taken to trace him, without success. In the circumstances outlined in paragraph [24] above it was reasonable not to seek a further adjournment of the trial because of Burns's unavailability. It was only when he was traced after the trial that it became evident that he was willing and able to give evidence in support of the appellant.

    [28]          Mr Burns further submitted that there was a reasonable explanation for the fact that Dr Watt's evidence was not led at the trial. The availability of his evidence stood or fell with the availability of Alan Burns's evidence. So long as Alan Burns was untraced, and no voice sample from him was available, Dr Watt's evidence could not be obtained.

    [29]          The significance of Alan Burns's evidence was, Mr Burns submitted, obvious. It went to the heart of the appellant's defence that he was not the person who made the calls referred to in charge (3)(a) and (e). Not only was it evidence that supported the truth of the appellant's special defence; the voice samples provided by Burns provided the foundation for expert evidence which supported the truth of Burns's own evidence and the soundness of the special defence. The materiality of Dr Watt's evidence was likewise clear. It constituted independent support for the special defence.

    [30]          So far as the original part of ground of appeal (2) was concerned, Lindsay Jane Clelland swore an affidavit on 14 October 2004 in which she stated that she was present on an occasion "in or around April of 2001" in the presence of Alan Burns, Steven Burns and George McDowals (sic) when abusive telephone calls were made to the complainer. She said that the appellant was not present on that occasion. Mr Burns indicated that her existence was not known at the time of the trial, and that she subsequently volunteered as a witness, having heard of its outcome. He submitted that her evidence therefore survived the "reasonable explanation" test. Although it was not on the face of her evidence clear which episode she was describing, her evidence could be regarded as being of significance, because the trial had resulted in a majority verdict, and her evidence might have tipped the balance.

  3. The Crown submissions
    4.  [31]          The Advocate depute submitted that no reasonable explanation had been offered of why Alan Burns's evidence was not heard at the trial. He had been cited, and according to his affidavit, had received the citation, but had chosen to go on holiday rather than answer to it. It was far from obvious that, if asked to do so in advance of the trial, he would have been willing to give a voice sample. The explanation tendered by the appellant amounted to saying that there had been a tactical decision not to take all possible steps to secure his attendance as a witness at the trial. The evidence of Dr Watt could only pass the "reasonable explanation" test if the evidence of Burns first passed that test. It therefore stood or fell with Burns's evidence.

    [32]          So far as the evidence of Lindsay Jane Clelland was concerned, the Advocate depute submitted that it failed both the "reasonable explanation" test and the significance test. She was the former girlfriend of Alan Burns. She claimed in her affidavit to have been present, with Alan Burns, Steven Burns and George McDowall, on an indeterminate date when abusive telephone calls were made to the complainer, and the appellant was not present. Both Steven Burns and George McDowall gave evidence at the trial. It was difficult to understand why her presence on the occasion in question had not been discovered in the course of precognoscing those witnesses. No explanation had been tendered for the failure to identify her as a potential witness before the trial. Her evidence, moreover, did not possess the requisite significance. It was unclear whether it related to either of the libelled dates. It dealt with material which was already available to the jury through the evidence of Steven Burns and George McDowall.

  4. Discussion
[33]      We are not persuaded that a reasonable explanation has been tendered for the fact that the evidence of Alan Burns was not heard at the trial. It is clear that the potential importance of his evidence was recognised at an early stage in preparation of the defence case. He was precognosced by the appellant's original solicitors. Some steps were taken to trace him at the end of 2002. Those steps, however, involved no more than the appellant himself attempting to contact him at the two addresses which he was thought to use, in Cumbernauld and Baillieston. While it is possible to speculate that it may have been thought that an informal approach was more likely to succeed, no explanation was tendered for the fact that no more formal steps were taken to trace him at that stage. It is now known that there was at that time a warrant out for his arrest, and that that warrant was not executed. We know nothing, however, about how actively he was sought by the police, either in connection with the warrant, or as a defence witness intimated to the Crown. As the trial diet approached, further steps were taken to contact Alan Burns, but these appear to have been no more than a repetition of the informal steps taken at the end of 2002 by the appellant himself. Burns was formally cited, but only on the eve of the trial. His evidence on affidavit is that he received the citation, but chose not to answer to it. If that is true, it tends to our minds to suggest that more vigorous efforts to trace him might have succeeded. The candid account given by Mr Burns of the discussion of procedural options which took place before the trial discloses that two considerations contributed to the decision to proceed with the trial. One was Mr Burns's professional advice that, in the light of the delay that had already occurred, the prospects of obtaining a further adjournment were poor. The other was the appellant's keenness to proceed to trial. In the result, the failure to secure the attendance of Alan Burns as a witness was not drawn to the attention of the sheriff and no motion to adjourn the trial was made. We do not suggest that Mr Burns's assessment of the likelihood of an adjournment being granted was wrong, but the motion could have been made, and would have put the matter on a formal footing. We agree with the Advocate depute that a judgment was made, balancing the advantages and disadvantages of making a formal attempt to have the trial postponed to enable further steps to be taken to trace Alan Burns. In other words, a tactical decision was taken. In all the circumstances, we do not consider that a reasonable explanation has been tendered of why the evidence of Alan Burns was not heard at the trial.

[34]      It was not suggested that, if there was no reasonable explanation of why Alan Burns's evidence was not heard, there was any basis for introducing at this stage the evidence of Dr Watt. The introduction of his evidence depended on the introduction of Alan Burns's evidence.

[35]      Since the evidence of Alan Burns in our opinion fails the "reasonable explanation" test, it is not necessary for us to deal in detail with its significance. Had matters been otherwise, we are persuaded that the evidence of Alan Burns and Dr Watt would have been of sufficient significance to be regarded as potentially having a material bearing on the jury's determination of a critical issue in the trial, namely whether the appellant had been proved beyond reasonable doubt to be the person who made the offending telephone calls to the complainer.

[36]      The evidence of Lindsay Jane Clelland in our opinion fails both the "reasonable explanation" test, and the significance test. It was blandly stated that she volunteered herself as a witness after the trial, and that her existence as a potential witness was not known until then. Given, however, that she was formerly Alan Burns's girlfriend, and claims to have been present on the occasion when some at least of the calls to the complainer were made, and to have been in the company of Alan Burns, Steven Burns and George McDowall on that occasion, some explanation is required of why the fact of her presence was not discovered in the course of precognoscing Steven Burns and George McDowall, both of whom gave evidence as defence witnesses at the trial. No such explanation was offered. Given, further, that the evidence which Ms Clelland has to offer is simply more evidence along the lines of that given by Steven Burns and McDowall, we are not persuaded that her evidence can be regarded as possessing the requisite degree of significance to justify it being heard as additional evidence.

Decision

 [37]      In the result therefore we reject grounds of appeal 1 and 2 (as amended). The appeal against conviction is therefore refused. The appeal against sentence will be continued to be heard at a later date.

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URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_50.html