Scottish High Court of Justiciary Decisons

KENNETH JOHN MACKENZIE v. HER MAJESTY'S ADVOCATE [1999] ScotHC 196 (27th July, 1999)

The appellant is Kenneth John Mackenzie, who was convicted after a jury trial at the Sheriff Court at Paisley, of a charge of assault to injury and a charge of assault to severe injury by striking the complainer on the head with a bottle or similar instrument to his severe injury. He appealed against conviction and was granted leave in respect of one ground only. That ground relates to the directions which the trial judge gave in relation to one particular element in the evidence, namely the fact that the appellant admitted that his fingerprint had been found on a fragment of glass from an Irn Bru bottle. That fragment was discovered on the grass beside the pathway where the complainer was attacked with a bottle. The appeal therefore refers to the evidence concerning charge 3 only, the charge of assault to severe injury. During the course of the trial, a video tape was played which showed events occurring in the forecourt of the Abbotsinch Filling Station, the locus in charge 2. The video recording showed the appellant drinking from an unbroken bottle of Irn Bru. It also showed the complainer at the filling station and showed him walking away. The recording then showed that the appellant walked out of the area covered by the video recording and in the same direction as the complainer. The complainer was not able to identify his attacker but he gave evidence that the attack on him with the bottle had occurred shortly after he had walked away from the filling station.

The appellant did not give evidence at the trial, and in the course of his charge, in the passage which forms the subject of this appeal, the Sheriff said this:

The submission by Miss Scott on behalf of the appellant was that this was a misdirection since it suggested that there was no innocent explanation for the presence of the appellant's right palm print on the fragment of the Irn Bru bottle. Contrary to what the Sheriff was suggesting, the video recording itself showed that the appellant had been drinking from the bottle and this in itself provided a wholly innocent explanation for the presence of the print on the bottle.

The Sheriff in his report to us says that his reference to "an innocent explanation" was to the fact that the appellant never gave evidence to explain how the broken bottle, with his palm print on it, ended up on the grass beside the pathway where the complainer was attacked. It appears to us that, so viewed, the direction would be entirely appropriate because, as we have explained, there was evidence that the attack occurred on the complainer shortly after he walked away from the filling station. The evidence that a fragment of glass from the smashed bottle with the appellant's print on it had been found in the vicinity was a circumstance which was potentially incriminating of the appellant. More particularly, if accepted by the jury, the evidence that the appellant had been drinking from the bottle and had then gone off in the same direction as the complainer, who was attacked shortly thereafter, could allow them to draw the inference that the appellant had attacked the complainer.

We accept that the particular passage in the Sheriff's charge could have been more happily framed in order to bring out precisely the point which he tells us that he intended to make. It was the finding of the smashed bottle with his print on it near where the complainer had been attacked which was the matter which required explanation, rather than the mere presence of the palm print on the bottle itself. However, we are satisfied that, having regard to the charge as a whole, there would have been no likelihood of the jury being misled by what was said by the Sheriff.

It was also suggested that the direction implied that, somehow or other, there was an onus of proof on the appellant and, that the jury might have felt that the fact that he had not given evidence was a factor which they could take into account when deciding whether to find the charge established. In that connection, however, we must consider the terms of the Sheriff's charge as a whole. In particular, he had already said "the fact that the appellant has not chosen to give evidence does not allow you to infer anything from that fact". In those circumstances it appears to us that he could not have been understood as suggesting in any sense that the absence of evidence from the appellant would allow the jury more readily to draw an inference of guilt. He was saying no more than that in the body of evidence there was no evidence from the appellant or from anybody else which provided an explanation of the circumstances.

For these reasons we are satisfied that there has been no miscarriage of justice. The appeal is accordingly refused.