APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Emslie Lord Abernethy	2009 HCJAC 36 Appeal No: XJ1449/08 OPINION OF THE COURT delivered by Lord Carloway in STATED CASE by GEMMA WATSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: A Ogg, Solicitor Advocate; Martin Johnston & Socha, Kirkcaldy

Respondent: Young AD; The Crown Agent

27 March 2009

[1] On 7 October 2008 the appellant was convicted of a breach of the peace at Kirkcaldy Sheriff Court. The particulars of the offence were that on 25 June 2006 at Lidls she conducted herself in a disorderly manner, brandished a knife and a piece of wood. The Sheriff found in fact that two young males, namely CD and GM, had been in the car park at Lidls with others when the appellant walked past. There was some form of altercation, but the appellant walked on. About 20 minutes later, the appellant returned carrying a knife and a piece of wood. She approached GM. He told her to go away. She did. The Sheriff held that this conduct was severe enough to cause alarm to ordinary people and threaten serious disturbance in the community. Both males had spoken to the appellant returning to the locus with a knife and a piece of wood.

[2] The appellant makes two complaints. First, she argues that no reasonable Sheriff, who directed himself properly, could have convicted the appellant on the basis of the evidence before him. The basic complaint here related to the evidence of CD, who admitted lying in court concerning seeing the appellant presenting a knife at GM's neck. He admitted that he had lied on the instructions of GM. It was suggested that the Sheriff's acceptance of the evidence of these two witnesses was in that context "perverse". The second complaint was that the Sheriff had remarked at the conclusion of the trial that:

"I pay little regard to the demeanour of witnesses. When I am taking notes, I find it difficult to see a witness. In addition the demeanour of young people can seem casual and disrespectful. I try my level best not to consider the question of demeanour".

In his stated case the Sheriff responds to these criticisms as follows:

"I accept that I did make the remarks attributed to me. I understand that I am entitled to have regard to a witness's demeanour however I do not understand that I am bound to do so. I do consider that there are dangers in relying on the demeanour of some witnesses. In the case of young men they can give the appearance of being casual or disrespectful due to having poor social skills. That does not mean that they are not telling the truth. Equally a witness can give evidence in a confident manner but be shown by other incontrovertible evidence to be untruthful. Perhaps these dangers can be illustrated by the grounds of appeal. The complaint seems to be that the witness gave evidence with his arms crossed. I do not understand that a witness crossing his arms is an indication that he is telling lies. My understanding of such a posture is that it can give the impression of aggression".

The Sheriff continues in relation to the matter as follows:

"I cannot remember precisely why I believed the witnesses, however I have noted that neither witness was keen to give evidence and that the first witness said that he said to the police that he did not want to take any action against the appellant and that the second witness said that he did not want to give evidence. There was no apparent motive for the witnesses not telling the truth. Both witnesses seem to have given statements shortly after the incident which in their essential features were consistent with the evidence that they gave at trial."

[3] The appellant did not give evidence. The Sheriff was therefore dealing with a case in which he had uncontradicted evidence from two persons speaking to the essential facts of the libel; these facts being that the appellant was in Lidls car park in the early hours of the morning, carrying a knife and a piece of wood and approaching other youths in that vicinity. In relation to the first criticism, the Sheriff is entitled to accept parts of a witness's evidence and to reject other parts. The fact that a witness admits perjury on one aspect of his testimony does not necessarily mean that his evidence should be entirely rejected for that reason. It was a matter for the Sheriff to decide what parts of the two males' evidence he accepted. The critical point is that he accepted both in their testimony that the appellant was in the car park with the knife and the piece of wood. In relation to the second criticism of the Sheriff, it is true that some of the remarks of the Sheriff at the conclusion of the trial were unfortunate. He accepts that he had said that he pays little regard to the demeanour of witnesses and tries to do his level best not to consider the question of demeanour. If these remarks are indicative of the general approach of the Sheriff in every case, there would clearly be a problem. Demeanour is something which a court should be aware of and, in appropriate cases, it must take account of it. But the Sheriff does not appear to be doing justice to himself in making these general remarks about his approach to assessing testimony. In particular it is noticeable that, in this case, the Sheriff clearly did have regard to the demeanour of the witnesses where he identifies that both seemed to be reluctant to give evidence. His remarks have to be taken in the context of the particular case and of the particular criticisms made about him. Seen in those contexts, it is clear that what the Sheriff meant was that he considers that due caution has to be applied when taking into account the appearance, or indeed the behaviour, of adolescent witnesses in court in certain cases and that it may be inappropriate to pay too much attention to these appearances or that behaviour when assessing the reliability and credibility of testimony. Seen in that way, no miscarriage of justice has occurred in this case. The Sheriff did not regard demeanour as important for the reasons, which he gives. The questions will therefore be answered in the affirmative and the appeal will be refused.

KW