Prevaricating witness found in contempt of court fails in appeal after claiming she ‘purged’ her contempt

Ria Kenyon had given a statement to police in which she said she saw the accused punch the complainer, but in her evidence she was “determined not to give evidence which might incriminate the accused” and was found in contempt by a sheriff.

However, she claimed she had “purged” her contempt in re-examination, but appeal judges upheld the sheriff’s decision.

Lord Menzies, Lord Bracadale and Lord Turnbull heard that the petitioner was called as a Crown witness in a solemn trial before a sheriff and jury at Hamilton Sheriff Court in March 2016 in relation to an indictment alleging assault to severe injury and permanent disfigurement.

She was a “crucial witness” for the Crown, as the statement she gave to the police less than three weeks after the alleged assault, which she had signed on each page, included the sentence: “I turned round and I saw Lee punch Kieran once in the face and Kieran just fell to the ground”.

But in her evidence in chief she told the court that she was “very drunk” on the occasion in question and that she “did not see” how the pair were injured.

She maintained that she had told the police officers who noted her statement exactly what she had said in court but they had not written down what she had said, and that they would be lying if they gave evidence that she had told them what was in the statement.

After an adjournment over the weekend, the petitioner’s evidence in chief resumed and when her statement was put to her again she gave evidence that she could not remember seeing the accused punch the complainer.

At this point the sheriff asked the jury to retire and warned the petitioner about prevarication and the possibility that she might be found in contempt of court.

The jury then returned and in further questioning by the prosecutor, the petitioner agreed that she did not remember parts of what happened but said she would “go with her statement”.

She agreed that she did not dispute that officers took the statement from her, that events were fresh in her mind at the time, that her memory of events was better at the time than now, that she told police officers the truth and that she would not lie.

In cross-examination the petitioner was asked if she saw the accused punch anyone and she replied “no” and when asked why her statement was different from her evidence, the petitioner said “I just can’t remember that far back”.

She agreed she might have been attempting to tell the truth in her statement but it might not be the truth because of her alcohol intake, and she also agreed that she chatted about the incident with her friends and some of the information in her statement may have come from them.

Asked again if she saw the accused punch anyone, she replied “no”.

At this point the sheriff again adjourned and warned the petitioner regarding prevarication and ordered her detention during the adjournment pending consideration of finding her in contempt of court.

When her cross-examination resumed, the petitioner was asked if her statement was accurate and she replied “no”.

In re-examination the petitioner was asked whether her evidence meant the accused did not punch the complainer or she did not remember if he did and she replied “I don’t remember”.

The sentence “I turned round and I saw Lee punch Kieran once on the face and Kieran just fell to the ground” was read to her from her police statement and she agreed she must have said it to the police.

She also agreed that she was not under the influence of alcohol when she gave the statement to the police.

The sheriff said it was apparent “very quickly” that having asked the fiscal for sight of her statement before she was called “she did not intend to speak to it”.

Though in re-examination the prosecutor with skilful questioning restored the position that the petitioner did not remember some things in the statement happening and had told the police truth, the sheriff concluded that she had not purged her contempt.

It was accepted that the sheriff was entitled to take the view that the petitioner had prevaricated, but it was submitted that the petitioner had “purged her contempt of court in her re-examination”.

However, the appeal judges were “not persuaded”. Delivering the opinion of the court, Lord Menzies said: “The position which she adopted in re-examination was different from that in cross-examination and also different from that taken in the early part of her evidence in chief. It amounted merely to a repetition of her evidence that she did not remember seeing the accused punch the complainer on the face but that she must have said this to the police and she was not under the influence of alcohol when she did so.

“The sheriff has explained why she took the view that the petitioner had not purged her contempt. The sheriff was best placed to make an assessment of the petitioner’s evidence, whether or not she was contempt of court, and whether or not she had purged her contempt.

“The sheriff reached her conclusion only after hearing submissions from a solicitor on behalf of the petitioner. We cannot fault her reasoning nor can we detect any error of law in her decision.”