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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Johnston
Lord Eassie
Lord MacLean
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[2006] HCJAC 92
Appeal No: XC17/05
OPINION OF THE COURT
delivered by LORD MacLEAN
in
NOTE OF APPEAL AGAINST
CONVICTION
by
JAMES ROY HAMILTON CLARK
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Appellant: Shead; John Pryde, SSC, Edinburgh
Respondent: Mackay, A.D.; Crown Agent
12 December 2006
[1] The appellant,
James Roy Hamilton Clark, whose date of birth is 29.10.87, was convicted at Edinburgh Sheriff Court on 18
November 2004
by a majority verdict of the jury on the charge that on 5
February 2004
at Swan Crescent, Gorebridge, he assaulted Daryl Neil Holgate by
striking him on the body with a knife to his injury. On his behalf there had been intimated a
special defence that he was acting in self-defence, he having been assaulted by
the complainer. On 10
January 2005
he was sentenced to 3 years probation and 200 hours of unpaid work in the
community.
[2] Leave to
appeal was finally granted on 25 November 2005 on a number of grounds of
appeal. Ground 1 asserts that the
sheriff misdirected the jury in several respects, amounting to 14 in
number. In summary it is stated that the
directions were erroneous and apt to confuse.
As a result, there was a miscarriage of justice. Of these alleged misdirections we intend to
concentrate on those relating essentially to assault, self-defence, and whether
two statements made by the appellant were "mixed" in nature. The second and third grounds of appeal were
not argued.
[3] As for the
facts, it is unfortunate that the sheriff has not set out the evidence in his
Report. We have, however, been able to
glean at least some of the evidence from a few parts of his charge and we were
provided with a transcript of the evidence of a witness, Sean Gillies, since
that related to ground of appeal 1-12.
It was suggested to us that since his evidence was not cross-examined by
the Crown, it represented an accepted state of the facts by both sides. In cases of self-defence such as this, where
the appellant gave evidence, it is important to appreciate and assess that
evidence. We have found ourselves at a
disadvantage in not having a resume of that evidence either in the sheriff's
Report or in the form of a transcript.
[4] As best we
can, however, we state the facts as follows.
When the appellant and the complainer encountered each other on the
night of 5 February 2004 in Gorebridge, the appellant was
carrying a knife. This was because, on
the previous night, he had been "jumped" by a group of youths, including the
complainer, who, according to Gillies' received information, "battered him". So he carried it for self-protection. Gillies, who was an eye-witness of what
happened between the two on 5 February 2004, said in evidence that it was the
complainer who confronted and engaged the appellant, although before the trial
the complainer had tried to persuade Gillies that it was the other way
round. He described how the complainer
had a hold of the appellant's jacket and how the two were struggling together
as a group of youths ran towards them.
The appellant was struggling to get away, trying to pull the complainer
off him. Then he struggled away and the
complainer "went down". In Gillies' view
the crowd was running towards him in order to get at the appellant and to
batter him. He, Gillies, was in the crowd
which numbered seven or eight persons, although he was not out to batter the
appellant. When he was asked what the
appellant would have thought as he saw the crowd running towards him, Gillies
replied that he would think that they were going to batter him. The appellant in these circumstances produced
the knife and struck the complainer a blow with the knife in the chest. Fortunately the injury he inflicted was not
serious. It was treated with stitching
and he was kept in hospital overnight for observation.
[5] In his
charge, which we have considered carefully as also we have considered his
further directions, the sheriff describes this effectively as a single issue
case (page 2), by which he meant self-defence because, as he says, it was
never suggested that an assault had not taken place (pages 15 and 18). Assault is, however, a legal concept with its
own legal definition including its own mens
rea. If self-defence were
established, or the jury had reasonable doubt about it, the mens rea for assault would not be
proved. Nowhere in the sheriff's charge
does he direct the jury what constitutes an assault in law and how self-defence
interacts in law with that. What, of
course, he meant to say was that it was not disputed that the appellant struck
the complainer with the knife he had in his possession. This, however, is neither an idle nor an
academic criticism as will be seen from what we say later. We should add that before us the advocate
depute accepted that there should have been a legal direction about what
constituted an assault in law.
[6] The sheriff
then turns to deal with self-defence and sets out the three essential
conditions which have to be satisfied.
He began by saying that an accused person did not have to prove that he
acted in self-defence. It was for the
Crown to prove beyond reasonable doubt that he did not act in self-defence
(page 17). Yet he went on, confusingly
in our view, to say that the jury could acquit of self-defence "only if each of
three conditions are satisfied by the accused" (page 20). He compounds that confusion by saying in his
further directions on pages 33 and 34 that the jury could only find
self-defence to be established, as it were, by the accused in the case if each
of the three conditions was established.
On page 34 he refers to the accused failing to satisfy the jury that
there was an issue of self-defence. In
his Report the sheriff tells us that in the preparation of his charge he made
reference to the directions given by Lord Keith in H.M. Advocate v Doherty
1954 JC 1. He would then have read
what Lord Keith gave by way of directions as to onus in the last paragraph of
page 6 of the Report. Lord Keith says
that the onus of establishing guilt of the crime charged rests throughout on
the Crown. If the jury are satisfied in
the whole circumstances of the case that the accused acted in self-defence, in
accordance with the indications and directions given by the judge, the jury
must acquit the accused. If the jury are
left in reasonable doubt whether the accused acted in self-defence, again they
must acquit him. This last direction was
simply not given by the sheriff, as it should have been.
[7] The sheriff
spends considerable time in his charge dealing with the question of
proportionality of force used by an accused person who claims to be acting in
self-defence. He actually quotes from Doherty on pages 22-23 of his charge as
follows:
"If a man was struck a blow by
another man with the fist, that could not justify retaliation by the use of a
knife, because there is no real proportion at all between a blow with a fist
and retaliation by a knife".
And the sheriff then goes on to elaborate upon that. We would add to that statement that all the
circumstances surrounding the retaliation have to be considered, and, indeed,
Lord Keith does that in the passage on page 4 which immediately precedes this
statement. He said:
"You do not need an exact proportion
of injury and retaliation; it is not a
matter that you weigh in too fine scales, as has been said. Some allowance must be made for the excitement
or the state of fear or the heat of blood at the moment of the man who is
attacked ... ".
The sheriff in his Report says that he did not understand
these words to be a mandatory direction.
Such direction is, in our opinion, essential, and his failure to give
that direction in the circumstances of this case, amounts to a misdirection.
[8] An issue was
also taken about the sheriff's failure to direct the jury about the terms
"credible" and "reliable". In his Report
he said that he took the view that it is unnecessary and insulting to define for
the jury such basic and readily understood concepts. They are, however, legal concepts which few,
if any, judges fail to define for a jury by way of direction. Such direction is especially necessary in a
case such as this where, as we understand it, there was a sharp dispute in the
evidence. We also note that, perhaps
unwittingly, the sheriff, on pages 29 to 30, has excluded the alternative
acquittal verdict of not proven.
[9] We turn now
to ground of appeal 1-10 which asserts that the sheriff failed to direct the
jury on the status and effect of the mixed statements led on the appellant's
behalf. There were two statements led in
evidence by the Crown. One related to
his interview by the police, and the other was a transcription of his 999 call
to the police following upon the incident.
In the first, as might be expected, the appellant admitted having the
knife in his possession and using it on the complainer against the background
of being attacked by the complainer who shouted out to other people who were
running up, that he (the appellant) was there.
He also recounted how a lot of these people had jumped him the night
before. In the second, the transcript of
the 999 call, he made similar admissions and qualifications by way of
explanation of what he had done by stabbing one of the guys who had chased
him. He also told the police where they
could find the knife he had thrown away.
Even from this rather brief summary of both statements it is obvious
they are both incriminatory and also exculpatory. They are therefore "mixed" in nature and of
value to both the Crown and the defence.
The sheriff in his Report says that he did not consider that either of
them was a "mixed" statement or required to be specifically referred to in his
charge.
[10] We find this
response by the sheriff rather surprising in light of Lennox v H.M. Advocate
2002 S.C.C.R. 954 of which the sheriff must have been aware. We note, incidentally, that the commentator
in the report of that case observed that the mixed statement in that case,
which was concerned with drugs, was similar to a statement claiming
self-defence in an assault charge. In
our opinion the jury should have had the benefit of appropriate directions with
regard to the assessment of these statements in evidence. Directions still require to be given even in
cases where the appellant has given evidence (Thomson v H.M. Advocate
1998 S.C.C.R. 683). Nor can it be said
that the jury in this case was in no doubt about how to approach the statements
(compare Sneddon v H.M. Advocate 2006 SCCR 40). The failure to give the appropriate
directions with regard to these statements amounted, in our opinion, to a
further misdirection.
[11] We are further
of opinion that these misdirections and deficiencies, considered together,
amount to a miscarriage of justice, and we will therefore quash the conviction
of assault.
