Scottish High Court of Justiciary Decisons

At advising, on 10th March 1989, the opinion of the court was delivered by the Lord Justice-Clerk (Ross).

OPINION OF THE COURT.—The appellant is Jane Alexander Boyd Fraser or Roberts who went to trial in the sheriff court at Dunfermline along with two co-accused on a summary complaint libelling a number of charges. The present appeal relates to the appellant's having been convicted of charge (2) on the complaint which was in the following terms: [their Lordships quoted the terms of the charge as set out supra and continued]. Against her conviction on that charge the appellant has appealed by way of stated case.

In presenting the appeal counsel for the appellant drew attention to the findings-in-fact. The matters made the subject of charges in this summary complaint arose out of events which took place in connection with a "funeral tea" which was held in Dunfermline following a funeral. Despite the somewhat innocuous description of this occasion, it appears that a quantity of alcohol was consumed by those attending the so-called funeral tea with unfortunate consequences. Among those attending were the appellant and her cohabitee Robert Paton Halliday. At one stage Mr Halliday became very inebriated and the appellant's son, David Roberts, attempted to take Mr Halliday home to his bed. He did not wish to go home and when he was outside the house where he lived he began to fight with Mr Roberts. The complainer, Eric Hughes Crawford, who had also attended the funeral tea decided to try to separate the two men before one or other of them was seriously injured.

The remaining findings-in-fact are in the following terms: [their Lordships quoted findings-in-fact (7) to (13) as set out supraand continued].

Counsel submitted that these findings disclose actings of a criminal nature but not the crime of assault; he submitted that the appellant might have been guilty of recklessly injuring Mr Crawford but that she could not be guilty of the crime of assault. His contention was that the findings showed that there was no mens rea on her part directed against Mr Crawford, the victim of the incident. He submitted that the injury caused to Mr Crawford was really accidental and that the appellant accordingly fell to be acquitted.

The sheriff in his note explains that in finding the appellant guilty of the charge he relied upon a passage in Hume on Crimes i., 22 which is cited in Gordon's Criminal Law (2nd edn.) at p. 330. Counsel, however, maintained that the sheriff had drawn the wrong conclusion from the passage in Hume. At the end of the day, counsel's submission was that the doctrine of transferred intent does not apply in Scotland in relation to a crime such as assault which can only be committed if there is evidence of evil intent.

The advocate-depute, on the other hand, founded upon the passage in Hume, and submitted that the court should hold that the doctrine of transferred intent applied to assault. He stressed that having regard to the terms of charge (2) on the complaint no question of assault on Halliday arose. Likewise there was no question of whether the appellant was guilty of culpable or reckless conduct. The question was whether she was guilty of assaulting Crawford.

The starting point is the passage in Hume to which the sheriff referred in his note. In this passage it is stated:

"In the first place, a criminal charge may be good, though there is no evidence of a purpose to injure the very person who has been the sufferer on the occasion."

Counsel for the appellant pointed out that in the passage following that sentence, Baron Hume refers in the main to cases of homicide, and that cases of homicide are in a special position. It is true that Baron Hume does give a number of examples of cases of homicide, but the passage which we have just quoted appears in a chapter dealing with the nature of crimes in general. Moreover in the particular passage he is dealing with the character of dole which he explains is that corrupt or evil intention which is essential to the guilt of any crime. That being so we are quite satisfied that the sentence which we have quoted is not confined to cases of homicide, but is of general application. On p. 22 Baron Hume gives the following example:

"If John make a thrust at James, meaning to kill, and George, throwing himself between, receive the thrust, and die, who doubts that John shall answer for it, as if his mortal purpose had taken place on James?"

It is true that that is an example of homicide, but this may well be because Baron Hume goes on in the passage to quote the particular case of Carnegie of Finhaven (1728) Hume, i, 22 which was a case of homicide. In our opinion, however, the example which he gives would be equally valid if the references to homicide were omitted and if the sentence read:

"If John make a thrust at James, and George, throwing himself between, receive the thrust, who doubts that John shall answer for it?"

In Macdonald's Criminal Law (5th edn.) at p. 115 it is stated:

"Nor is it assault if some act of mischief, not directed against the person of anyone, causes injury to another of whose presence the perpetrator of the mischief was not aware."

In our opinion, what is important in that statement is to observe that the act in question was not directed against the person of anyone; the situation is not necessarily the same where, as here, the act in question was directed against one person although it took effect upon the person of another.

In Gordon's Criminal Law (2nd edn.). para. 9–12, the learned editor quotes from the passage in Hume at i, 22. He then proceeds to express certain criticisms of the passage. The matter is taken up again by Sheriff Gordon at para. 29–30, where he deals with mens rea in assault generally. He states:

"It is undecided whether if A throws a bottle at B and hits C instead, he is guilty of assaulting C or only of recklessly injuring him. This depends on whether the doctrine of transferred intent applies in Scotland in relation to a crime which can be committed only intentionally, and it is submitted that on principle it should not apply in such a case, and A should be guilty only of recklessly injuring C, a crime which is independent of his unfulfilled intention to assault B."

Understandably counsel for the appellant founded strongly upon this passage. He submitted that there was no room for the doctrine of transferred intent except in cases of homicide where he said the doctrine could be justified on the grounds of public policy. Counsel also referred to H.M. Advocate v. Phipps (1905) 4 Adam 616. At the end of the day he invited us to answer the one question in the case in the negative.

The advocate-depute, on the other hand relied upon the passage in Hume to which we have referred. The advocate-depute also referred to David Keay (1837) 1 Swin. 543 and to Macdonald, p. 2, where it is stated:

"The principle is, that where the result which has happened was likely to occur, the perpetrator is answerable, and accordingly the circumstance of each case must determine the applicability of the rule."

He submitted that whether the matter was approached from the point of view of transferred intent, or whether it was approached from the point of view that the result which happened was likely to occur, the sheriff had been entitled to find the appellant guilty in this case, and he invited us accordingly to answer the question in the case in the affirmative.

In our opinion the passage in Baron Hume at i, 22 which we have quoted is of general application and is not confined to cases of homicide. In particular his statement would apply to a case of assault. No doubt, as observed in Macdonald, if the act of the assailant is not directed against the person of anyone, he will not be guilty of assault because he will lack the necessary mens rea. If, however, his act is directed against the person of A, but he causes injury to another, B, in our opinion, he is guilty of assault. The difference between the two cases is that in the latter case the accused has the necessary dole or mens rea. In our opinion the statement by Sheriff Gordon at p. 825 to the effect that the doctrine of transferred intent does not apply in Scotland in relation to a crime which can only be committed intentionally is unsound. In our opinion the findings-in-fact in this case contain all the necessary elements of a charge of assault. The appellant carried out an attack upon the person of another; she picked up a pole and delivered a blow with it. Moreover she had the necessary evil intention; it was her intention to assault Mr Halliday. Her attack was carried out and took effect; the pole wielded by the appellant struck the complainer. In these circumstances, we are quite satisfied that the sheriff was justified in bringing in a finding of guilty of assault.

The advocate-depute drew our attention to the recent case of Connor v. Jessop 1988 S.C.C.R. 624. In that case the appellant was charged with assaulting Marjorie Stevens and throwing a glass tumbler at her which struck her on the foot to her injury. He was convicted, and the findings show that the appellant had become involved in a fight with two other men. At one stage he picked up a glass tumbler and threw it at one or both of his opponents. The glass missed the opponents but struck Marjorie Stevens on the foot.

It will thus be seen that the case was very similar to the present case and was one where A threw an object at B and hit C instead. In delivering the opinion of the court the Lord Justice-General pointed out that at the trial the defence line had been that the evidence demonstrated only reckless conduct and that what was proved to have been done by the appellant leading to the injury of Marjorie Stevens was not sufficient to constitute the crime of assault in law. It appears that reference was made to Hume on Crimes i, 22, Macdonald on Criminal Law (5th edn.), p. 2, and to Gordon's Criminal Law (2nd edn.) para. 29–30. The Lord Justice-General observed that the solicitor for the appellant had been at pains to distance himself from the law as stated by Hume and Macdonald and had relied on the critical observations of Sheriff Gordon in his work. The stipendiary magistrate had repelled the solicitor's submission. The Lord Justice-General recorded that counsel for the appellant had not attempted "to renew the submission based on the acceptance of Sheriff Gordon's approach to the problem which had been resolved by Hume and Macdonald and had been followed in the criminal courts of Scotland ever since". We regard that decision as fully consistent with the decision at which we have arrived in the present case. If the court had thought that there was any force in the criticisms made by Sheriff Gordon of what is stated in Hume and Macdonald we would have expected to find some reference to that in the opinion of the Lord Justice-General.

In our opinion the criticism which Sheriff Gordon makes of the passage in Hume is unsound, and, as we have already explained, we are satisfied that the statement of Hume is of general application and in particular that it applies to assault.

In Connor's case, the court took the view, founding on the passage in Macdonald at p. 2, that what had happened was something which was likely to occur. In the present case the appellant picked up a pole and delivered a blow with it at a man who was engaged in struggling with two other men. In these circumstances we are satisfied that what happened, namely that one of the other men was struck, was an event which was likely to occur, and that accordingly the appellant is answerable for what happened.

We are satisfied that on either approach the sheriff was entitled to convict.

For the foregoing reasons we answer the one question in this case in the affirmative and it follows that the appeal is refused.