Ria Kenyon against Procurator Fiscal, Hamilton [2016] HCJAC 116

Petition to Nobile Officium:- On 4 and 7 March 2016 the petitioner was called by the Crown as a witness in a jury trial relating to a charge of assault to severe injury and permanent disfigurement. During the course of the petitioner’s examination in chief she stated that she had been very drunk and did not know how the complainer became injured. In her evidence the petitioner did not accept saying to the police, who noted a statement from her three weeks after the alleged assault, that:- “I turned round and I saw Lee punch Kieran once in the face and Kieran just fell to the ground” despite signing the statement on each page. In her evidence the petitioner maintained that she told the police officers who noted her statement exactly what she had said in court and they had not written down what she had said. The petitioner went on to say in her evidence that if the police officers came into court and stated that they had noted the petitioner’s statement down accurately they would be lying. The examination of the witness continued on 7 March 2016 and she maintained the position that she gave on the first day of her evidence and that she did not know how the two boys were injured. The trial sheriff asked the jury to retire and the petitioner was warned about prevarication and that she might be found in contempt of court. Her examination in chief continued and to some extent the petitioner spoke up to her statement to the extent of saying whilst she could not remember what she told the police she would not lie to the police and her memory was better closer to the events than it was at the time she was giving evidence. During the course of cross-examination the petitioner was again warned about prevarication due to the manner in which she was responding to questions and she was held in custody during an adjournment pending consideration of a finding of contempt of court. When the cross-examination recommenced the petitioner stated that she had tried to tell the police the truth, however, her memory was not good and her statement was possibly tainted by information she had received from her friends and the police and she repeated that she did not see the accused punch anyone. The sheriff in her report to the court stated that she considered that the petitioner was in contempt of court and that despite re-examination by the procurator fiscal depute the petitioner had not purged her contempt. Here it was accepted on behalf of the petitioner that the sheriff had been entitled to take the view that the petitioner had prevaricated, however, it was submitted that the petitioner had purged her contempt of court during the course of her re-examination. Here the court refused the petition. The court considered that the petitioner had not purged her contempt of court by the evidence which was given during the course of re-examination. The court noted that the position the petitioner gave in examination in chief was different to the position that was given by her during cross-examination and her position was different again in re-examination. The court did not consider that what took place could be described as an adoption of her police statement and that the sheriff was best placed, having heard the petitioner’s evidence from start to finish, to assess whether she was in contempt of court and whether or not she subsequently purged that contempt.