Scottish High Court of Justiciary Decisons

HENRY KERR v. HER MAJESTY'S ADVOCATE [1998] ScotHC 7 (11th November, 1998)

The appellant is Henry Kerr who went to trial at the Sheriff Court at Greenock on an indictment which included, as Charge 1, a charge alleging that the appellant did

At the conclusion of the trial the jury returned a verdict finding the appellant guilty of this charge under deletion of the word "repeatedly". It is the form of this verdict, with the deletion of "repeatedly", which has given rise to the appeal. The appellant contends that, having deleted this word and so having convicted the appellant of assault by delivering one punch, the jury could not consistently include in the conviction the aggravation "to his severe injury". The contention was therefore that the court should allow the appeal to the extent of substituting a conviction under deletion of the words "to his severe injury".

It should be noted that, although the libel appears in the terms which we have quoted, according to the evidence events occurred in two stages. The first stage took place in the close leading to the complainer's flat. The appellant admitted inflicting a single punch there, with the result that the complainer had "bounded out" of the close. He also admitted that in striking this blow he had not been acting in self-defence. For this reason the Sheriff directed the jury that they would be bound to find the appellant guilty of at least this single punch in the close. He went on to say that

If, then, the jury had wished to return a verdict finding the appellant guilty only of the single punch in the close, according to the Sheriff's direction, they would have deleted not only the word "repeatedly" but also the words "on the head to his severe injury". They did not do so.

The reason why the Sheriff directed the jury that, if confining any guilty verdict to the first part of the incident, they should delete the other words was that it appeared from the evidence - including evidence from the appellant - that in the second part of the incident, which occurred very shortly afterwards when the appellant and complainer met up outside the nearby post office, he had inflicted more than one blow on the complainer. The appellant's defence to this second part of the charge was that he had been acting in self-defence.

The contention for the appellant was that, by deleting "repeatedly", the jury had shown that they were convicting the appellant simply of having struck the single blow in the close and that they must therefore have accepted his defence of self-defence in relation to the second part of the incident. In these circumstances, since there was nothing in the evidence to show that the blow at the beginning of the incident had caused the severe injury, the jury had not been entitled to return the verdict which they did, including the aggravation "to his severe injury".

In our view that submission falls to be rejected.

In the first place the jury had been directed that, if they were satisfied that the assault by the appellant did not cause any injury at all to the complainer, they should delete the words "to his severe injury". Since they left the words in the libel of which they convicted the appellant, the jury must have concluded that what he did to the complainer resulted in severe injury to him. We are satisfied that there was evidence, both medical and lay, which entitled the jury to reach that conclusion.

In the nature of things we cannot tell precisely why the jury chose to return the verdict with the deletion of "repeatedly". None the less the verdict shows that the jury took the view that the Crown had established that the appellant had knocked the deceased to the ground and had then punched him on the head. Again, we are satisfied that there was evidence which would have entitled the jury to reach that view. We refer in particular to evidence from the appellant himself to the effect that outside the post office he

Later in cross-examination we find a passage where the accused, speaking of the same incident in front of the post office, said

The appellant went on to say that he knocked the complainer to the deck and

That was the only blood which he saw.

If the jury accepted this evidence of the appellant, it would have justified them in returning a verdict that the appellant knocked the complainer to the ground and punched him. They would also have been entitled to conclude that these blows were the cause of the injury to the complainer.

Mrs. Richards accepted that, viewed in isolation, this evidence would have entitled the jury to return the part of the verdict where they found that the appellant knocked the complainer to the ground and punched him. But she reminded us that the Sheriff had directed them that they required to find the appellant guilty at least of the single punch in the close. If they had followed that direction, as we should assume they would have done, then they would have found the appellant guilty of inflicting both the punch in the close and the punch outside the post office. Since the word "repeatedly" meant "more than once", if that had really been the jury's approach, they would not have deleted "repeatedly". We should therefore reject the view that the jury had found him guilty of any assault outside the post office. On the contrary, the proper conclusion was that they had accepted his evidence that he had acted in self-defence at that stage and had therefore convicted him only of the assault in the close.

The argument turns on the deletion of the word "repeatedly". It is true that, when drafting indictments, the Crown use the adverb "repeatedly" to refer to anything which occurs more than once. But the jury were not directed that they should apply that meaning to the word and the Oxford English Dictionary gives the definition "more than once, again and again, frequently". The jury may therefore have taken the word "repeatedly" as meaning "again and again, frequently" and, by deleting it, wished to indicate that they did not consider that the appellant had punched the complainer again and again or frequently. In that connexion it is relevant to notice that the complainer gave rather confused evidence which was to the general effect that the appellant had indeed struck him again and again. As the Advocate Depute pointed out, by deleting "repeatedly" the jury may well have been adopting the only means open to them to show that they were proceeding, not on the version of events given by the complainer, but, instead, on the version given by the appellant who spoke to the single punch in the close and to knocking the complainer down and punching him once outside the post office.

In these circumstances we are satisfied that on the evidence before them it was open to the jury to return a verdict in the form which they adopted. We therefore refuse the appeal against conviction.