Scottish High Court of Justiciary Decisons

ARRON SOUTER AKA SMART v. PROCURATOR FISCAL, PERTH [1999] ScotHC 142 (4th June, 1999)

The appellant in this appeal by stated case against conviction is Arron Souter also known as Smart who was convicted in Perth District Court of one charge of breach of the peace and two charges of assault. The offences were alleged to have taken place on 7 December 1997 in the premises occupied by The Cellar Bar, Merryburn Hotel, Station Road, Dunkeld. Charge 1 was a charge of breach of the peace by shouting and swearing but we were informed that the conviction on that charge was not being challenged. The two assault charges of which the appellant was convicted narrated (a) that he had assaulted William Ormerwood and repeatedly pushed him to the ground to his injury (charge 2 as amended) and (b) that he had assaulted Mrs. Margot Ormerwood and pushed her to the ground to her injury (charge 3). Mr. and Mrs. Ormerwood were the owners of the hotel.

In the stated case the justice has set out fully the evidence given by the three witnesses who were led by the Crown, namely, William Ormerwood, his wife Margot Ormerwood and Deirdre Cooper. In relation to charge 2 there was evidence that the appellant had previously been barred from the premises. At about 1.30 a.m. Mr. and Mrs. Ormerwood and Deirdre Cooper were sitting in the bar when the appellant came in. Mr. Ormerwood asked him to leave and the appellant mumbled "Make me leave". The complainer grabbed his arm and the appellant started to struggle and broke free. The complainer again told the appellant to get out whereupon the appellant grabbed hold of the complainer by the chest and the top part of his body and threw him, the complainer landing on the floor. He got up but was again assaulted. The complainer said that he had been on the floor twice and that he had a bleeding nose and a bruised back. Mrs. Ormerwood spoke to the complainer asking the appellant to leave and then taking him around the shoulders to escort him out. There was a skirmish consisting of pushing and shoving and the appellant pushed the complainer with both hands on his shoulders and the complainer fell to the floor and sustained a bleeding nose. Deirdre Cooper spoke to the complainer having asked the appellant to leave. The appellant went for the complainer and made the first contact with him and there was a scuffle. She recalled the complainer saying to the appellant "You want me to hit you - I won't". The appellant had lodged a special defence of self-defence in relation to charge 2 but in the event he did not give evidence.

With regard to charge 3 Mrs. Ormerwood gave evidence that after the incident involving her husband, she had been sitting on a low stool when the appellant came up to her and took the stool from under her and she fell onto the stone floor. Mr. Ormerwood gave evidence that he saw his wife on the floor and that she had previously been sitting down. Deirdre Cooper said that Mrs. Ormerwood had been sitting on a chair or stool and had ended up on the floor but she did not know how Mrs. Ormerwood came to be on the floor.

At the conclusion of the Crown evidence the appellant's solicitor submitted that, so far as charge 3 was concerned, there was no case to answer but that submission was rejected by the justice. No evidence was led by the defence and the justice convicted the appellant of both charges of assault, charge 2 having been amended by the procurator fiscal by the deletion of the words "and did seize him by the arms". The justice took the view that the Crown witnesses were credible and reliable and although she noted that there had been certain discrepancies in their evidence, which she set out in the stated case, she considered that they had been due to genuine forgetfulness. So far as charge 3 was concerned the justice observed that only Mrs. Ormerwood could speak to seeing what the appellant had done, but that the circumstances of the earlier incident and the appellant's aggression were sufficient to allow her to conclude that the appellant had pulled away Mrs. Ormerwood's stool, the two incidents being so inter-related that they were part of a course of conduct on the part of the appellant.

Counsel for the appellant submitted that there had not been sufficient evidence to entitle the justice to convict the appellant on either of the two assault charges. With regard to charge 2, the evidence had lacked the necessary conjunction of testimony to satisfy the essential test of sufficiency (McDonald v. Scott 1993 S.C.C.R. 78). There were material discrepancies in the evidence of the Crown witnesses, particularly in relation to how the complainer came to be injured, although she conceded that it was difficult to suggest that the complainer and his wife had been speaking to two separate incidents. Counsel also submitted that there was, on the evidence, a reasonable doubt as to whether the appellant had been acting in self-defence in that he had reacted when the complainer had tried to put him out of the bar. Having considered the submissions made to us, in light of the justice's account of the evidence which had been given, we were of the opinion that, while there were certain discrepancies in the evidence, there was a proper basis for conviction on charge 2 and we did not call upon the advocate depute to reply.

In relation to charge 3 counsel for the appellant submitted that there was no corroboration of Mrs. Ormerwood's evidence that the appellant had pulled away the stool on which she had been sitting, causing her to fall to the floor. The other two witnesses had seen her on the floor but did not know how she came to be there. Neither of them had seen the appellant pull the stool away. The Moorov doctrine was not applicable as the two assaults had been of a different character. There was no evidence of an underlying unity of purpose or a course of criminal conduct pursued by the appellant.

In reply, the advocate depute submitted that the Moorov doctrine was applicable in this case and provided the necessary corroboration of Mrs. Ormerwood's evidence in relation to charge 3. Both assaults took place in the same premises and at about the same time. In the case of each assault the complainer had been propelled to the floor. It was not necessary that the precise nature of each assault should be the same (Harvey v. H.M. Advocate 1975 S.C.C.R. (Supp.) 96, Quinn v. Lowe 1991 S.C.C.R. 881 and Reynolds v. H.M. Advocate 1995 S.C.C.R. 504). On the evidence there was a sufficiently close connection in character, circumstances and time to establish a course of criminal conduct. The evaluation of the circumstances had been a matter for the justice who had concluded that the two incidents had been so inter-related that they were part of a course of conduct systematically pursued by the appellant, and that was a conclusion which the justice had been entitled to reach.

In our opinion the submissions made by the advocate depute were well-founded. Both of the alleged assaults took place in the bar within a very short time of one another and accordingly it is clear that they were closely associated so far as place and time were concerned. There were only four people in the bar at the time, namely, the two complainers, Deirdre Cooper and the appellant. There was evidence that the appellant, who had previously been banned from the premises, was shouting abuse and it was the two owners of the hotel who were assaulted after the appellant had been told by Mr. Ormerwood to leave the bar but had been unwilling to go. While the nature of the violence used in each incident was not exactly the same, each of the complainers landed on the floor. In the particular circumstances of this case we are satisfied that the justice was entitled to hold that the assaults were so inter-related by character, circumstances and time as to justify an inference that they constituted a single course of criminal conduct on the part of the appellant. It follows, in our opinion, that the Moorov doctrine was properly applied by the justice and that there was sufficient corroboration of Mrs. Ormerwood's evidence in relation to charge 3 to entitle the justice to convict the appellant on that charge.

In these circumstances we will answer all three questions in the stated case in the affirmative and refuse the appeal.