Scottish High Court of Justiciary Decisons

DAVID THOMAS CAIRNS v. HER MAJESTY'S ADVOCATE [1999] ScotHC 238 (21st October, 1999)

In this case we are satisfied, despite the submissions made to us by the appellant, that there was direct evidence from one witness, Vicky Bowie, from which it could be inferred by the jury that it was the appellant who, either alone or in concert with the co-accused, assaulted and attempted to murder the complainer. The suggestion in the written submissions of the appellant that the appellant could have been protecting the complainer simply will not stand with the evidence of Miss Bowie as summarised at page 4 of the Trial Judge's Report and, in particular, with the reference in that summary to hearing a loud scream while the appellant was in the immediate vicinity of the complainer.

The only remaining question is whether, when the Trial Judge repelled the defence motion of no case to answer, that evidence was sufficiently corroborated. As to that, the corroborative evidence relied on by the Crown and accepted by the Trial Judge was evidence from the complainer's wife in the course of her evidence-in-chief (which the jury were entitled to accept) that some three weeks after the assault, in the early hours of the morning, the appellant shouted derogatory remarks about the complainer from the pavement outside their house, adding the words, "I'm no finished wi' him yet." This followed on earlier shouting outside the house, which the jury were entitled to infer came from the same source, of which the words heard were "... dirty grassing bastards. There'll be no grassing in the High Court." This earlier shouting, we may say, was contemporaneous with the complainer's front door being kicked in.

In our opinion, despite everything said by the appellant, the evidence just referred to was more than capable of supporting or confirming the direct incriminatory evidence and, indeed, of "pointing towards the guilt" of the appellant, which last form of expression was, as it happens, the one used by the Trial Judge in the course of his Charge. We say that because in our view, at least in the absence of further explanation, it can readily be inferred that he who seeks to intimidate has himself a clear and guilt-ridden interest in the subject matter of the intimidation - and in this case that could only be the matter of the earlier assault.

For these reasons we refuse the appeal. We should, however, note in passing that in this case, following the judge's decision on the motion of no case to answer, the appellant's co-accused entered the witness box and gave further evidence which directly incriminated the appellant. So far as we know there has, as yet, been no considered decision of the Court as to whether defence evidence of this nature might be used to cure any defect which exists at the close of the Crown case and we accordingly think it right expressly to reserve our opinion on that matter.

For the sake of completeness we should also note for the record that the appellant, in the course of his submissions, did put before us a written statement of the evidence which he might have given, but in fact chose not to give, at the trial. Quite clearly, this document cannot be relevant to our decision on the legal questions raised by the Note of Appeal and we have accordingly taken no account of its contents.