APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C800/98
OPINION OF THE COURT
delivered by LORD REED
APPEAL AGAINST CONVICTION
MICHAEL JOHN McGARRY
HER MAJESTY'S ADVOCATE
Appellant: Shead; Adams
Respondent: Di Rollo, A.D.; Crown Agent
19 August 1999
On 17 December 1998 the appellant was convicted at Linlithgow Sheriff Court on a charge that he and a co-accused, Stephen Hughes, had assaulted William Coulter on 30 December 1997 at Race Road, Bathgate, by repeatedly kicking and punching him on the head and body to his severe injury. Hughes was acquitted following a submission of no case to answer.
The evidence relied on by the Crown came principally from the complainer, corroborated by the evidence of a forensic scientist as to bloodstaining found on the appellant's clothing. The complainer's evidence, in examination-in-chief, was to the effect that Hughes had asked to fight with him, but the complainer had refused. Hughes blocked his path and so he moved back. As he moved back, the appellant appeared and came forward, and the complainer was immediately under a hail of blows. There was then a lull, then the appellant stepped forward and punched him, and he woke up in hospital. When interviewed by the police, he named the appellant as one of two men who had assaulted him. In cross-examination, the complainer initially stated that he had not seen the appellant on the evening in question prior to the assault, and had not been aware of the appellant's presence in a house at the time of an argument there between himself and Hughes earlier that evening. Subsequently he accepted that it was possible that the appellant had taken a bottle from his hands in the house. The complainer also accepted that he had spoken to the appellant on the telephone prior to the assault, whereas in his earlier evidence he had stated that he had had no contact with the appellant. The complainer was then asked if he had made a series of telephone calls to the appellant after the incident. He initially denied having done so, but subsequently conceded that he might have made as many as four or five calls.
There was other evidence that Hughes was kicking the complainer, and it was not disputed at the hearing of the appeal that it was open to the jury to consider that such kicking might have formed part of a common criminal enterprise in which the appellant was involved.
The forensic evidence was given by Miss Nicola Clayson, a forensic scientist. She spoke to a report concerning the finding of bloodstains, which could have come from the complainer but not from the appellant or Hughes, on the appellant's shoes, tracksuit bottoms and trainers. The salient parts of her report (as quoted by the sheriff) were as follows:
"Items relating to McGarry: A pair of Adidas black and white trainers. The shoes were examined and the uppers found to be extensively stained with small minute spots and flat splashes of blood. There was heavy contact bloodstaining on and around the laces of the right shoe. In our opinion the pattern of bloodstaining on the right shoe is characteristic of an impact into wet blood...The tracksuit bottoms were examined and bloodstains, including heavy contact bloodstaining on the right hem, found on the front, minute spots of blood were found on the outer aspects of both legs, and reactions indicating the presence of blood were obtained from the front, however no blood was visible...The top was examined and found to be extensively stained with small and minute spots and splashes of blood, mainly to the front. A splash of blood on the lower front right and a spot of blood on the upper front were each groups that are given the same group as Coulter. The blood could not have come from Hughes or McGarry, but like the bloodstains that were also found on the inside of the left under arm and lower back. In our opinion the pattern of bloodstaining on the top is characteristic of the wearer being in close proximity to an impact into wet blood".
Miss Clayson stated in her evidence that the bloodstaining was consistent with the appellant attacking the complainer, and that it was unlikely that the appellant would receive bloodstains from lifting up a person who had been bleeding. She stated that there were approximately 200 bloodstains on the top, and approximately 40 on the tracksuit bottoms. There was contact bloodstaining on the right shoe, consistent with contact bloodstaining on the right hem of the bottoms, and there were numerous spots and splashes on the left shoe. She stated that it would appear that the appellant had used his right foot for kicking purposes, and she said that, so far as the right shoe was concerned, blood had been forced into the laces and stitching by the application of a significant degree of force. In cross-examination she accepted that a number of the spots and splashes of blood were consistent with the complainer wiping blood from his face and flicking the blood from his hand on to the items in question. Evidence had earlier been given by the complainer that his nose and face had been covered in blood and that he had tried to get blood off his face. Miss Clayson also accepted that other spots and splashes of blood could have been deposited if the wearer of the items in question was trying to assist or defend the complainer while the complainer was under attack by a third person. Although she accepted that bloodstaining could have been caused by the complainer wiping blood from his face, or by the appellant's defending the complainer or attempting to lift him up, she was of the opinion that the most likely scenario was that the bloodstains were caused by the impact of the right shoe of the appellant on the complainer's face.
Other witnesses led by the Crown included a William Dolan, who stated that he was an eye witness to the assault. He named the assailants as Hughes and a man by the name of Graham Lawrence. He stated that the appellant was not one of the assailants. He had attended an identification parade where he had picked out Hughes but had not identified the appellant as one of the assailants. He stated that he had given the police the names of the two assailants at the time and had pointed to the house which they entered. He knew the appellant. His evidence contrasted with police evidence to the effect that Dolan had told them at the time that he did not know the complainer's assailants.
The appellant himself gave evidence. He stated that he had broken up trouble between Hughes and the complainer earlier that evening in his own house. On three or four occasions Hughes and Lawrence had left his house, but had come back. On one occasion Lawrence came back and said that Hughes and the complainer were fighting at the back of the house. According to the appellant, he went out to stop the trouble. He said that Hughes was leaning over the complainer, who had a lot of blood on him, and that Hughes was kicking the complainer. He said that he put out his leg and knocked Hughes away from the complainer. He denied having assaulted the complainer. As noted by the sheriff, the appellant stated:
"Coulter was face down on the floor. I tried to pick him up. I was pulling him up from underneath".
The appellant had tried three times to pull the complainer up, but the complainer was a dead weight and fell back twice. The appellant stated that he was in full contact with the complainer. Hughes had then come in from the trees and put another kick into the complainer's head. The appellant then tried to prevail on the complainer to come into his house, but the complainer was aggressive and refused. The appellant then went back to his house. Hughes came to his house 20 or 30 minutes later and said that he knew that he had no blood on his clothes, having had an opportunity to change. The appellant said in evidence that he had kept on his tracksuit bottoms, but had taken his top off and put it in the washing machine. He thought at the time that he was in a serious position. He accepted that he did not give the police a truthful account. He then spoke to having been telephoned by the complainer. He felt that he was being blackmailed, and he made a complaint by telephoning the police office in Bathgate. He stated that the complainer had been formally warned by the police, and he referred in that connection to certain letters which formed a production. In cross-examination the appellant stated that he had tried to telephone his lawyer without success. He referred to the complainer as being his friend, although the complainer had been sick on a carpet and he had had a conversation the following day with Mrs. Lawrence about the complainer, to try and keep him from his house. He stated that the complainer had been lying on his stomach after being assaulted, and that he (the appellant) had tried to get him on to his feet. The appellant pulled the complainer backwards and propped him up against a fence. He tried to get the complainer into his house, but the complainer was unwilling to go in. The appellant left him where he was. He did not telephone the police or the ambulance service, but he invited Hughes into his house, having just seen Hughes assaulting the complainer. The appellant said that he did not believe in grassing people up, and he again denied that he had attacked the complainer. He said that, after he had come back from a trip to Ibrox and shortly before going out, he had put on his training shoes. During the earlier part of the evening he had had on his slippers. He said that he had given an untruthful account to the police regarding the top and the trainers because he had been scared.
There was one other witness led on behalf of the defence, namely Police Constable Robert Lowe. He confirmed that he had received a complaint from the appellant to the effect that the appellant had received telephone calls from the complainer offering not to give evidence against the appellant if the appellant was prepared to give the complainer money. P.C. Lowe confirmed that he had attended at the home of the complainer and formally warned him about his behaviour and that he was liable to be charged if this behaviour were to continue. Contrary to evidence given by the complainer, P.C. Lowe stated that the complainer had made no allegation of the appellant having made telephone calls to him.
In his charge to the jury, the sheriff touched on the evidence to some extent. In relation to the Crown case, he reminded the jury of the evidence given by the complainer relating to the incident in which the assault had taken place. He then reminded the jury of the forensic evidence. He read out to the jury the salient parts of the forensic report. He then reminded the jury of Miss Clayson's evidence as to the number of bloodstains on the top and the bottoms, the nature of the staining on the shoes, and her opinion that the accused appeared to have used his right foot for kicking purposes, and that blood had been forced into the laces and stitching of the right shoe by the application of a significant degree of force. He also reminded the jury of her conclusion that the bloodstaining was consistent with the accused attacking the complainer, and that it was unlikely that the accused would receive bloodstains from lifting up a person who had been bleeding. In relation to the defence case, the sheriff reminded the jury of the whole of the appellant's evidence.
The submission to this court of counsel for the appellant was that the sheriff had failed to deal even-handedly with the evidence and that his failure in that respect amounted to a misdirection. In dealing with the Crown case, the sheriff had failed to mention the inconsistencies in the complainer's evidence which were exposed in cross-examination. These inconsistencies were relevant to the complainer's credibility, which was of critical importance. In dealing with the forensic evidence, it had been inappropriate for the sheriff to read out passages from the forensic report. He had in addition made no mention of Miss Clayson's concessions that certain of the bloodstains might have been consistent with an alternative scenario to the one on which the Crown case depended. The sheriff had also failed to mention that the bloodstaining on the shoe could have been caused by the complainer's head falling heavily on to the appellant's feet on more than one occasion. In dealing with the defence case, the sheriff had mentioned only the appellant's own evidence. He had made no mention of the evidence of the witness Dolan, which tended to exculpate the appellant. Nor had he made any mention of the evidence of P.C. Lowe, which was relevant to the jury's assessment of the complainer's credibility.
In reply, the advocate depute pointed out that any summary of the evidence was bound to be selective. In the present case, it was accepted that the sheriff had not told the jury that the forensic scientist had accepted that the appellant's version could not be ruled out. Nor were the jury told that the complainer had given evidence which had been discredited by other witnesses. These points had however been made by the defence solicitor in his speech to the jury. The critical issue was whether the omissions were such as to render the charge unbalanced, so that the jury did not have a fair and balanced view of the case before them. The advocate depute invited the court to take the view that, on balance, and considering the charge as a whole, it could not be said to have presented the case to the jury in a way which was unfair or unbalanced.
The general principles which govern the treatment of evidence by a trial judge in his directions to the jury are well established, and were restated by this court in the case of Shepherd v. H.M. Advocate, 1996 S.C.C.R. 679. As was stated in that case (at pp. 685G-686A):
"It is clear that if a trial judge decides that it is appropriate to go into the evidence, whether in full or in part, then, in offering the jury a summary or résumé of evidence on the whole case or on some topic which is in issue, he must present a balanced picture if he is not to run the risk of misdirecting the jury."
In the present case, the sheriff elected to remind the jury solely of the evidence relied on by the Crown in relation to the circumstances of the assault itself, and of the evidence given by the appellant. We have concerns about this approach in the circumstances of the present case, where the defence case was not confined to the evidence given by the appellant. In particular, the appellant's evidence as to the telephone calls made to him by the complainer following the incident was supported to some extent by the evidence of P.C. Lowe, who was accepted by the Crown as being a credible witness. P.C. Lowe's evidence was also inconsistent with part of the complainer's evidence about telephone calls. P.C. Lowe's evidence was thus capable of being regarded by the jury as material to their assessment of the complainer's credibility, which was of critical importance in the case. The appellant's evidence as to his having become bloodstained while attempting to assist the complainer also derived some limited support from Miss Clayson's acceptance that such an explanation could not be ruled out. Given that Miss Clayson's evidence as to the most likely explanation for the bloodstaining (namely, the appellant's kicking the complainer's bleeding body) was of critical importance, it would in our opinion have been desirable, if that evidence was to be mentioned in the charge, to have reminded the jury also of her acceptance that an alternative explanation was a possibility.
Nevertheless, the issue we have to decide is not whether the sheriff's charge was in an ideal form, but whether it presented the jury with an unbalanced and unfair picture of the case. In that regard, so far as the credibility of the complainer is concerned, we note that the sheriff directed the jury at the outset that questions of credibility were entirely a matter for them, and that the facts were their province alone. He also directed the jury that if they did not accept the complainer's evidence, then that was an end of the case. He also reminded the jury of the appellant's evidence regarding the telephone calls and the warning given to the complainer by the police, and of documentary productions relevant to this issue. In his report to this court, the sheriff informs us that there was no doubt that the appellant had complained to the police. He also informs us that the matters raised in the appeal were raised by the appellant's solicitor in his address to the jury, and that he had felt that it was superfluous to rehearse them in his charge to the jury. The sheriff was in the best position to judge whether the evidence bearing on credibility had been explored in the parties' submissions to the jury to such an extent that it was superfluous for him to go over the matter again. In assessing the whole position, we must bear in mind that that was the assessment made at the time by an experienced sheriff.
So far as the evidence relating to bloodstaining is concerned, we regard it as important that the sheriff reminded the jury in considerable detail of the appellant's explanation. He reminded the jury that Miss Clayson had stated that that explanation was unlikely, which in itself would imply that the explanation could not be excluded entirely. More importantly, perhaps, we are not convinced that the position of the appellant would have been assisted by the sheriff's going through the various scenarios put to Miss Clayson and reminding the jury in greater detail of her opinion that they were possible but unlikely. We also bear in mind that this matter again was raised by the appellant's solicitor in his address to the jury, and that the sheriff judged that there was no need to go over it once more.
Considering the charge as a whole, and assessing its overall tenor in the light of the circumstances of the trial as we understand them, we reject the criticism that it was unfair and unbalanced. More could have been said about the defence case, and in our judgment it might have been preferable if something more had been said (particularly about the complainer's credibility). Nevertheless, in the whole circumstances of the trial, including the speeches made to the jury, we do not consider that the jury would have been left with a picture of the case which was unbalanced or was liable to mislead them. The appeal is therefore refused.