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Pupkis v. Procurator Fiscal [2002] ScotHC 50 (25 April 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Marnoch Lord Osborne Lord Macfadyen	2605/00     OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD MARNOCH in STATED CASE by MARGARET RUTH PUPKIS Appellant against PROCURATOR FISCAL, PEEBLES Respondent _____________

26 April 2002

1. In this case the appellant was convicted by the sheriff of assaulting her husband by stabbing him on the arm with a knife. The complainer's evidence was, of course, central to the prosecution case and in the course of that evidence the complainer, Mr Pupkis, maintained that he had come by his injuries accidentally and that his wife would in any event have been acting in self-defence. This contradicted a statement attributed to him by a police officer which was said to have been made soon after the incident and which included the assertion that "she ... lifted a knife and stuck it into my right arm". When faced up with this contradiction, the complainer said that he could not recall saying these words to the police officer. In his note annexed to the stated case the sheriff says this:

"Mr Pupkis accepted under pressure that he made the statement to the police apart from the passage mentioned above. The police witness was adamant that he had said this also and the context of the statement appeared to bear this out. I accordingly preferred that part of the complainer's evidence (sic) to the other account which he gave in an apparent attempt to exculpate the appellant".

In saying that it is, we think, clear that the sheriff was accepting as substantive evidence the part of the statement which the complainer had claimed not to recall saying to the police; and this, indeed, is how matters appear in both the findings in fact and in the questions framed for the opinion of this Court.

2. The short ground of appeal relative to this matter is that the learned sheriff was in error in proceeding as he did and, in the result, that ground must, in our view, be sustained. This was not a case in which the witness claimed not to recall what had happened and adopted as true a prior statement made by him. Although, therefore, the sheriff was well entitled to disbelieve the complainer's evidence in the witness box, that could not have the effect of making available as substantive evidence in the case the hearsay evidence of the police officer. In this regard, we are not persuaded by the submission of the Advocate Depute that the present case is governed by the ratio of Muldoon v Heron 1970 J.C.30 and there is, indeed, a passage in the Opinion of the Lord Justice Clerk, at p.36, which seems to us to be directly to the opposite effect.
3. In the result, we will answer Questions 1 and 3 of the Stated Case in the affirmative and negative respectively to the effect that the conviction of the appellant will be quashed. In these circumstances it is unnecessary to answer the other Questions in the Case.

 

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