APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord MacLean Lord Cowie |
Appeal No: C49/99
OPINION OF THE COURT
delivered by LORD MacLEAN
in
APPEAL AGAINST CONVICTION
by
WILLIAM MORTON MURRAY Appellant;
against
HER MAJESTY'S ADVOCATE Respondent:
_______ |
Appellant: Scott; Macbeth Currie & Co.
Respondent: Doherty, Q.C., A.D.; Crown Agent
10 August 1999
The appellant, William Morton Murray, was convicted by a jury sitting in Kilmarnock Sheriff Court of a charge of assault to severe injury with a bottle and also of a charge of breach of the peace. The jury's verdict on the first charge was by a majority; on the second charge it was unanimous. The sheriff imposed a cumulo sentence of two years imprisonment. The appellant was granted leave to appeal against conviction only. The locus of the assault was a petrol filling station, and the manageress there, Mrs. Brown, gave evidence that she had seen the appellant and the victim arguing together about football. The appellant had a bottle in his hand which he raised. Although she did not see a blow landing or the bottle coming into contact with the victim's head, she did see immediately afterwards that the victim's face was cut and that blood was flowing from it. The two men then went away together. In the same street as the assault took place, namely Wellington Street, Kilmarnock, near to its junction with Dean Lane, the appellant was arrested on a charge of breach of the peace by a police officer because he was conducting himself in a disorderly manner by shouting and swearing at the police officer when the police officer was attempting to help the victim.
The appellant was thereafter taken to the charge bar of the local police station where, according to the sheriff's report, he spontaneously said in the presence of four police officers, all of whom gave evidence: "I don't know if it was me that hit Scott. I just did that. " The police witnesses said that he then threw his right arm up. He then hit his head off the charge bar several times and said: "What have I done? He's my friend". In his charge to the jury (at page 4C) the sheriff rehearsed the evidence thus:
"There are the four police officers who are not four sources because they are all speaking to evidence coming from the same source, namely the accused, who says he hit him with a bottle, he did not know why he did it, he is sorry, he was banging his head in anguish or whatever on the charge bar, but the four police officers are not four separate sources of evidence".
We assume that what the sheriff said in his report is the correct version of what the appellant said and did at the charge bar, according to the evidence from the police officers.
It is clear that from these two separate sources of evidence - the police officers on the one hand and Mrs. Brown on the other - that there was sufficient evidence in law to entitle the jury to convict the accused of assault if they accepted that evidence as establishing his guilt beyond reasonable doubt. The sheriff in his report says that the appellant denied in his evidence that he had hit the victim with anything, although the two of them had engaged in banter about football at the petrol station. All the sheriff said in his charge, however, about the appellant's evidence is to be found in one brief passage at page 2E where he says: "The accused's position was quite clear. I did not say any of these things that the four officers say I did". Although the sheriff rehearsed the evidence of the police officers who were at the charge bar and also Mrs. Brown's evidence, notably on pages 5 and 6 of his charge, the appellant's evidence manifestly was not given correspondingly full consideration in his charge
Miss Scott who appeared for the appellant did advance the first ground of appeal, namely that the sheriff failed to give adequate directions with regard to the law of assault and also a breach of the peace, but she did so with some diffidence with regard to assault. We think that her diffidence was justified because the sheriff in our opinion said enough for a case of this kind in his direction at page 6C of his charge. We accept also what the Crown said, namely that it was never an issue at the trial that, if the appellant had behaved as the police officers said he had at the junction of Wellington Street and Dean Lane, Kilmarnock, that would amount to a breach of the peace.
Miss Scott went on to argue grounds 1(b) and 2 of the grounds of appeal. She submitted that the sheriff had failed to direct the jury that if they believed the appellant's evidence or if it raised a reasonable doubt about his guilt, they were bound to acquit him. There is no doubt that, in terms, the sheriff failed to give this direction, although he did say, at pages 5F to 6B:
"If the evidence of any witness satisfies you that the accused is not guilty, your verdict is of course not guilty. If any piece of evidence in the case causes you to have reasonable doubt as to whether he is guilty, again, it is your duty to acquit because the Crown would not then have proved its case beyond reasonable doubt".
It is also correct, as Miss Scott submitted, that the sheriff omitted to direct the jury that the requirement for corroboration applied only to evidence of guilt - that is, to the Crown case. The advocate depute directed our attention to what the sheriff said on the subject of corroboration at page 3F. There he said:
"Since the Crown has got the job of proving that an accused person is guilty, it follows as night follows day, that the accused does not have to prove he is innocent; that means he does not have to give evidence. In this case, he has given evidence and you have got to look at his evidence just in the same way as you would look at all the other witnesses. According to the law of Scotland - and in this respect we differ from some other civilised nations, notably England - there has to be evidence coming from more than one source before there is sufficient evidence in law to entitle a court, in this case a jury, to convict".
What, however, is missing is how the jury should approach the appellant's own evidence in terms of corroboration.
In Harrison (known as Craddock) v. H.M. Advocate 1993 S.C.C.R. 1087 to which we were referred by the advocate depute, the appellant, as in this case, gave exculpatory evidence. The court held that it was proper and desirable that the jury should have been directed that if they believed such exculpatory evidence or it left them in reasonable doubt, they should acquit the accused; and further, that the jury should be directed that the accused's evidence did not require to be corroborated. The Lord Justice Clerk (Ross) did however say at page 1093D that the fact that the sheriff had omitted to give such directions would not necessarily lead to the conviction being set aside. It all depended upon the circumstances whether his failure to give a direction which was normally regarded as essential, was fatal to the conviction. One of the features in that case which led the court to hold that the failures to give proper directions were not fatal to the conviction, was the narration by the sheriff of the appellant's evidence at some length.
The question for us is whether the jury were given adequate directions as to how they should approach the evidence. We have come to the conclusion that in this case they were not. Here the sheriff gave no real account of the appellant's evidence and also failed to give what are standard directions on how they should approach the appellant's evidence and that corroboration was only required for proof of guilt by the Crown. There was accordingly a miscarriage of justice and we shall quash both convictions.