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APPEAL
COURT, HIGH COURT OF JUSTICIARY
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Lord Mackay of
Drumadoon
Lord Hodge
Lord Wheatley
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[2013]
HCJAC 72
Appeal
Nos: XC448/12 and XC454/12
OPINION OF
THE COURT
delivered by
LORD HODGE
in
NOTES OF
APPEAL AGAINST CONVICTION
by
PAUL GEORGE
McKAY and STEPHEN JOHN McKINNEY
Appellants;
against
HER
MAJESTY'S ADVOCATE
Respondent:
_______
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Appellant: Keenan, solicitor
advocate; Wilson McLeod
Souter, solicitor advocate; C
& N Defence
Respondent: Wade; Crown Agent
19
June 2013
[1] On 3
August 2012 the appellants were convicted by a majority verdict of the jury at
the Sheriff Court at Edinburgh on this amended charge:
"(1) on 11 March 2012 at G3,
Hutchison House, Moat Drive, Edinburgh you PAUL GEORGE McKAY and STEPHEN JOHN
McKINNEY did assault Henry Archibald, c/o Lothian and Borders Police, Edinburgh
and did repeatedly strike him on the head and body with a meat cleaver and a
screwdriver all to his severe injury, permanent disfigurement and to the danger
of his life
you PAUL GEORGE McKAY did commit this
offence while on bail, having been granted bail on 23 November 2011 at
Edinburgh Sheriff Court."
[2] Both
appellants appealed against their conviction on the ground of miscarriage of
justice. Mr McKay's first ground of appeal was that Sheriff McIntyre
misdirected the jury because he did not recognise that a statement by a Crown
witness, Rachel Tracey Louise McHugh, was a mixed statement and direct them
accordingly. We granted Mr McKinney leave to advance a similar ground of
appeal. Mr McKay also appealed on the basis that the learned sheriff's
direction to the jury concerning the evidence of Ms McHugh lacked balance,
because it failed to mention, or give sufficient emphasis to, aspects of her
evidence that were helpful to the defence. Mr Keenan, for Mr McKay,
referred to McCutcheon v HM Advocate 2002 SCCR 101 and Shepherd
v HM Advocate 1996 SCCR 679.
[3] Mr Soutar,
for Mr McKinney, adopted Mr Keenan's submissions and linked his ground of
appeal, that the sheriff had failed to mention Ms McHugh's evidence that
Mr McKinney was apparently unarmed when she saw him leave Mr McKay's flat,
to the submission, which Mr Keenan had made, that there had been a lack of
balance in the sheriff's presentation to the jury of Ms McHugh's evidence.
[4] The
advocate depute conceded, correctly in our view, that Ms McHugh's
statement had contained some exculpatory material in the context of a special
defence of self-defence, as well as incriminating material, and that the
sheriff ought to have directed the jury on the basis that it was a mixed
statement. She submitted however that that had caused no miscarriage of
justice as the only defence, that of self-defence, could not have succeeded.
[5] The
incident on 11 March 2012 began when the complainer, Mr Archibald,
and Mr Derek Hogg, who were armed with knives or similar weapons, banged
on the door of Mr McKay's flat, shouting "YNT ya bas". Later
Ms McHugh heard the appellants come out of Mr McKay's flat. She
looked through the peephole in her front door and could see Mr McKinney's face
as he descended the stairs. She did not see Mr McKay and did not see the
appellants carrying weapons. But she did not give evidence that they were
unarmed. She had only a partial view of Mr McKinney as he descended.
[6] There was
evidence from which the jury could infer that the appellants were looking for
the complainer and Mr Hogg (a) as they associated the latter with "YNT" as
he came from Niddrie and (b) as the incident in which the complainer was
seriously injured took place on the landing outside Mr Hogg's flat, which
was one floor below the flats which Ms McHugh and the appellant,
Mr McKay, occupied.
[7] In the
incident the appellants used a meat cleaver and a screwdriver to inflict
serious injuries on the complainer. There was evidence that Mr Hogg
retreated into his flat and shut the door, leaving the complainer on the
landing with the appellants.
[8] Ms McHugh
in her evidence accepted the accuracy of the statements she had made to the
police after the incident when the police detained the appellants in her flat.
Her statement included several incriminating comments which she heard one or
other of the appellants make when they came to her flat after the incident.
Those comments included a discussion of the seriousness of the complainer's
head injury and a fear of being charged with attempted murder. In a part of
her police statement, which Ms McHugh accepted was accurate in her evidence,
she stated that one of the appellants said to the other that when they went to
Mr Hogg's door "Derek and Henry jumped out with machetes".
[9] The
sheriff's failure to refer to this statement and his treatment of
Ms McHugh's evidence of what the appellants said to each other as purely
incriminatory was a misdirection.
[10] In our
opinion, however, there was no miscarriage of justice. In our view there was
no prospect of the defence of self-defence assisting the appellants by creating
reasonable doubt in the minds of the jury. We recognise that the evidence that
the complainer and Mr Hogg emerged from Mr Hogg's flat carrying
machetes would suggest the first element of self-defence, namely that the
appellants were attacked and were in imminent danger. But there was no
evidence in the case to support the other two elements of self-defence. Those
elements are (1) that the violence used was as a last resort and that all safe
means of escape had been taken, and (2) that the person pleading self-defence
used only reasonable force in his defence. On the contrary, the obvious
inference from the evidence was that the appellants went armed to
Mr Hogg's flat to confront him and Mr Archibald. The injuries which
they inflicted on the complainer were not consistent with the use of reasonable
force. The sheriff charged the jury correctly on the elements of
self-defence. In our opinion that defence, as the advocate depute submitted,
was bound to fail.
[11] Other than
the misdirection on the mixed statement, we detect no lack of balance in the
sheriff's presentation of Ms McHugh's evidence. The sheriff pointed out
to the jury that Ms McHugh had seen the complainer and Mr Hogg armed with
weapons outside Mr McKay's door before the incident. He also referred to
evidence that Mr McKay had what appeared to be defensive injuries to his
hands after the incident. He had no reason to refer to Ms McHugh's evidence
that she had gained only a partial view of Mr McKinney as he descended the
stairs. That did not support an inference that the appellants were unarmed.
[12] We
therefore refuse the appeals.
