APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
OPINION OF THE COURT
THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION
GERARD JOHN MAHER
HER MAJESTY'S ADVOCATE
Appellant: McBride; Drummond Miller
Respondent: S. Di Rollo A.D.; Crown Agent
11 August 1999
On 23 September 1998 the appellant was found guilty of three charges on the indictment, charges 2, 3, and 4, each of which was a charge of assault, having been committed in Southloch Street, Glasgow on 31 January 1997 near to the Petershill Social Club.
From the Sheriff's report we can gain an overall picture of the evidence in this case. The three complainers in respect of the charges with which we are concerned gave evidence that the appellant having smashed a bottle against a wall came towards them with the bottle in his hand. They said that he first of all punched Miss Fiona Wilson on the nose (charge 4). He then hit Mr Alan Samson on the head with the broken bottle and headbutted him, (charge 2), and he then hit Mrs Samson, the wife of Mr Samson, with the bottle when she tried to intervene (charge 3). These complainers and Mr Samson's son, Alan Samson, Junior, give evidence of having punched and kicked the appellant in order to get him to desist from his attack. There was also evidence given about an earlier incident within the social club itself and it had been alleged by the Crown in terms of charge 1 that in the club the appellant had struck Mr Samson on the head with a bottle. The appellant was acquitted of that charge.
The evidence of the appellant on the other hand was that within the social club he was intimidated by the Samson family and was attacked by Mr Samson and his son. He said in evidence that in these circumstances he had resorted to punching Mr Samson on the head. This was an account which, as the Sheriff pointed out, he had given at judicial examination and in response to his being charged. As we have already said, he was acquitted of any assault in the club itself. The appellant went on to say that outside the club in the street the complainers started what happened there. Each of them was armed with a bottle and Mrs Samson was armed with an umbrella and her handbag. This account was put to the complainers in cross-examination and they denied it. The appellant said that he sustained injuries outside the club as a result of what was done to him.
In this case it was not in dispute that the injuries sustained by the complainers were sustained at the hands of the appellant. In the case of charges 3 and 4 they sustained injury and in the case of charge 2 that complainer sustained severe injury and disfigurement.
The present appeal is confined to the matter of the appellant's conviction. A number of grounds of appeal have been tabled which are critical of the directions given by the Sheriff to the jury. The directions with which they are concerned are those in regard to the question of self defence. In the course of her charge to the jury the Sheriff gave them directions first of all in regard to self defence as it arose in regard to charge 1. She said this, at pages 8E-9E:
"Self defence, ladies and gentlemen, is a complete or absolute defence. In other words, if you accept that Mr Maher was acting in self defence you must acquit him. And that's for the simple reason, ladies and gentlemen, that each and every one of us is entitled to defend ourselves from attack. However, in order for a defence of self defence to succeed you would need to accept firstly that Mr Maher perceived himself to be in danger, under onslaught. Second that he had no means of escape and third, that the force used in order to defend himself was reasonable and not what we lawyers call cruel excess. You see, ladies and gentlemen, if a person finds himself in a vulnerable situation he is obliged to get away from it if he can. He's obliged to take advantage of a means of escape if such is open to him. But if he can't get away he is entitled to use force against his assailant or assailants provided that that force does not amount to cruel excess. To put it in colloquial terms he mustn't go over the top. That is the first thing I have to say to you about self defence, that in law it's a complete defence provided there is imminent danger, no means of getting away from it and reasonable force is used to ward off the attacker or attackers."
The Sheriff went on to say the second thing that she had to say was to draw to their attention that at the earliest opportunity the appellant had stated that defence in judicial examination and indeed earlier at the stage of caution and charge. Accordingly they could see that he had maintained the same line of defence consistently from the outset.
The Sheriff then went on to deal with charges 2, 3 and 4 at the end of which she returned to the question of self defence and she said, in that connection, "Remember what I said about self defence, immediate danger, means of escape, reasonable force".
Mr McBride, who appeared today on behalf of the appellant, criticised the passage which we have referred to in regard to charge 1 in a number of respects, which would equally apply in regard to charges 2, 3 and 4.
The complaint was not that the Sheriff had failed to give the basic essentials in regard to the three elements which are critical in regard to the matter of self defence, but that in the circumstances of this case she had not gone on to state a number of matters. First of all, in regard to the absence of means of escape she had stated this in absolute terms without reference to what were reasonable means of escape. Next, in regard to the matter of cruel excess, she had not reminded the jury that the matter should not be weighed in too fine scales and that allowance should be made for the heat of the moment. Further, that in dealing with the reaction of the appellant at the time, she should have said once more the matter should not be looked at too closely in too fine scales, but allowance made for heat of the moment.
There is a further ground of appeal which appears to relate to the failure of the Sheriff to deal separately with different parts of the events to which charges 2, 3 and 4 related. Mr McBride made it clear that he was not criticising the Sheriff for not dealing individually with the matter of self defence in regard to each of charges 2, 3 and 4 but maintained that the way in which the incident developed and in particular where, according to some of the evidence, the appellant was surrounded by three people, made it all the more important that the Sheriff should have gone on to give the further directions which he desiderated.
In making the submissions which he did Mr McBride plainly had in mind the type of directions which were given by Lord Keith in the case of HMA v Docherty 1954 JC 1 at p.4-5. However, Mr McBride was at pains to emphasise to us that he was not suggesting that such directions were obligatory upon a Sheriff or a trial Judge in all circumstances. He stressed that these were the directions which were appropriate to the particular case in hand.
However, as it seems to us, it is important to bear in mind what were the issues in the present case. There was a very sharp conflict of evidence between on the one hand the complainers and on the other hand the appellant. There does not appear to have been any separate issue as to whether, upon the assumption that the complainers' account was accepted in whole or in part, the degree of violence which was used by him or his actions in regard to the matter of escape justified the special defence of self defence being sustained or rejected as the case may be. As the Advocate Depute pointed out, one would have expected that, if any such separate issue had arisen, it would have been plain from the terms of the charge. There was nothing in the information available to him to suggest that this was a live issue at the trial.
In the case of Fenning v HMA 1985 S.C.C.R. 215 p.225 the Court emphasised that the type of phrases used by Lord Keith in the case of Docherty, should not be treated as if they were "mechanical but mandatory shibboleths to be uttered in every case of murder where the defence of self defence is presented." It seems to us that these remarks plainly apply in the present case. We are not satisfied that in the circumstances of this particular case there was any need for the Sheriff to go further than she did. She had provided the jury with the basic essentials of the defence of self defence, and there is no question that what she did direct the jury was necessary. How much further she should go, and in particular how much detail she should go into, depended entirely on the context of the present case. It has to be borne in mind that whatever are regarded as are essential directions are essential for the assistance of the jury in performing their task. The recent decision of this Court in McBrearty v HM Advocate 1999 SCCR 122 is a recent example of a situation in which, according to the circumstances of the case, further detail was not required.
We are satisfied in this case there is no merit in the grounds of appeal which have been put forward in regard to misdirection and accordingly this appeal against conviction is refused.