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No unfairness where sheriff called child witness "very brave": Appeal Court
A sheriff who told a distressed child witness, a complainer to a charge of sexual assault, that she was "very brave" in giving evidence, did not give the appearance of a lack of impartiality such as to lead to an unfair trial, the Sheriff Appeal Court has held.
The court gave its decision in refusing a bill of suspension by Tariq Chaudhry, who challenged his conviction of lewd practices and behaviour towards three female employees, all under the age of 16, in his newsagent's business.
In relation to the first complainer, NF, the accused was said to have made remarks of a sexual nature, shown her sexual images and handle her body intimately. NF had given evidence from behind a screen but became "significantly distressed" during it. At the conclusion of her evidence the sheriff thanked her and then told her that she had been "very brave" in giving her evidence. The sheriff explained in his report that the comment was an instinctive remark given the context, and he had not made up his mind on the credibility and reliability of the witness.
The accused argued that the case was similar to Hogg v Normand (1992), where the sheriff had told the mother of two girls who had given evidence that they were "a credit to her", which was held sufficient to raise a suspicion in the mind of a reasonable man that justice was not impartial.
However Sheriff Principal Mhairi Stephen QC, who sat with Sheriff M G O'Grady QC and Sheriff Principal R A Dunlop QC, said in delivering the opinion of the court that the comment in the present case was "likely in the mind of a fair minded and informed observer to relate to the distress she suffered in giving her evidence. In our opinion, the words do not betray the sheriff's view as to her credibility, reliability or the quality of her evidence". The remark in Hogg had gone further.
She added: "Another factor which can be taken into account and which is referred to by the sheriff in his report is this: the accused and his solicitor were present in court when the remark was made yet no objection was made at the time nor in submissions at the conclusion of the evidence. That is yet another factor which the fair minded and informed observer would have had regard to."
Click here to view the opinion of the court.