Her Majesty’s Advocate. v. Francis Jude Donaldson [2017] HCJAC 29

Bill of advocation:- On 18 August 2015 the sheriff at Glasgow deserted simplicitor an indictment containing 16 charges. The charges faced by the respondent related to various allegations involving two women between 2001 and 2013. It was the respondent’s position that the allegations were fabricated in an effort to benefit negotiations in pending divorce proceedings involving his wife, one of the two complainers. In particular, the respondent’s position was that his wife and her sister sent text messages to each other the content of which supported that position. The procedural background was that the respondent first appeared on petition in relation to 9 of the charges on 30 December 2013 when he was admitted to bail. He was indicted to a first diet on 20 November 2014 with a trial due to take place in the sitting of 8 December 2014. At the first diet the trial was postponed until 30 March 2015 on defence motion to allow the respondent further time to prepare. A consequential Crown motion to extend the 12 month time bar was granted. Part of the defence preparations included seeking to recover the telephone records of the respondent’s wife and a mobile phone belonging to him, both of which the police had seized previously. The respondent’s solicitor repeatedly requested access to the mobiles from the procurator fiscal’s office both verbally and through the sending of 15 letters. It appears, however, that the phones remained in the possession of the police and they had not been passed to the Crown. On 11 March 2015 at a continued first diet the trial was adjourned to 26 May 2015 on defence motion to allow further time to prepare again resulting in an extension of the time-bar. By 6 May 2015 the records had not been produced and the respondent moved for the trial to be deserted pro loco et tempore and on 21 May the sheriff granted that application and extended the time bar to 31 August 2015. At a further meeting between the respondent’s representatives and the Crown it was confirmed to the defence that the material previously requested would be disclosed when the case was re-indicted. A fresh indictment was served on the respondent which included the additional charges. A first diet was assigned for 18 August 2015 with a trial to commence during the sitting of 31 August 2015. In excess of 600 pages of material were received by the Crown on a pen drive. It was considered by the Crown to be inappropriate for the information to be disclosed in that form and it was decided that the material would be printed off and handed to the respondent’s representatives. This was not done prior to the first diet. At the first diet on 18 August 2015 the respondent moved the sheriff to desert the indictment simpliciter, in light of the earlier Crown undertaking to disclose the records which they had failed to obtemper. The Crown sought a continued diet to allow them time to disclose the records prior to the trial or to provide a fuller explanation for the failure, however, the sheriff deserted the indictment simpliciter. The sheriff reports that it was the Crown who had the responsibility to disclose the material requested and had repeatedly failed to comply with previous undertakings given. It was further noted that the previous indictment had been deserted pro loco et tempore for the same reasons and it had been contended on behalf of the respondent that the continued absence of the material impacted upon the fairness of any future trial. The sheriff also noted that there had been 3 previous extensions to the 12 month time bar. The Crown presented a bill of advocation challenging the decision of the sheriff. Here the court passed the bill and recalled the order to desert the indictment simpliciter. The court stated that the sheriff had not been referred to the cases of HMA v Fleming 2005 JC 291 and Paterson v HMA 2008 JC 230 in which the appropriate test for such a desertion is discussed. The test to be applied by the court when considering whether to desert a case simpliciter is whether an unfair trial has become inevitable. The court considered here that the obvious remedy was not to desert the indictment simpliciter but, rather, to order the Crown to produce the material previously requested and, as such, the subsequent trial could not be characterised as inevitably unfair. The material was handed over at the hearing on the bill and the 12 month time bar was extended to accommodate the new trial diet fixed.