Appeal No: 2939/97
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD PROSSER
APPEAL BY STATED CASE
PROCURATOR FISCAL, EDINBURGH
Appellant: Scott, Wilson & McLeod
Respondent: Solicitor General, Crown Agent
23 February 1999
This is an appeal by way of stated case taken by Ian Muir in respect of convictions in the Sheriff Court at Edinburgh on a complaint which contained three charges. The charges all relate to closely related events but the third charge comes somewhat later in time than the others. It is now conceded that the conviction on that charge, the third charge, cannot be criticised and it stands. The appeal proceeds in respect of the first charge on which the appellant was convicted of an assault on a man Brennan. The second charge relates to an assault upon a man Smith but that second charge is directed not at the appellant but only against a co-accused, John Noonan. The first charge is against the appellant and Noonan, whilst acting along with others, and consists of a charge of assault on Thomas Brennan by punching and kicking about the head and body to his injury.
The evidence, as it came out, involved evidence that the appellant was in fact involved in the assault against Smith, although he is not charged with that. It is to be noted that the evidence did come out and it does not appear that there was any objection to it.
The submission advanced by Miss Scott was that these were essentially different matters and that since it appeared that the appellant was involved personally and directly in the attack on Smith, he could not be held guilty of being involved by concert in the attack on Brennan. It appears to us that it will always be a question of the evidence and the facts whether one is involved in one assault as actor and in another contemporaneous assault art and part. The findings in fact in this case are to the effect that Brennan and Smith were together. They made their way to a phone box and while they were in the phone box they became aware of four youths approaching the box and heard loud voices and in particular the remark, "That looks like two poofs in the phone box". The findings go on to say that the phone box door was then pulled open by members of the group. Thomas Brennan was grabbed by the collar and asked, "Are you poofs?". He said nothing, was punched on the jaw and dragged out of the phone box. He was punched on the jaw again and two of the four males in the group laid into him while the other two laid into Bruce Smith. Brennan was kicked about the body and the head and punched about the arms.
It appears from other more detailed findings and from the narrative of evidence that the appellant was indeed involved directly in the attack on Smith rather than the attack on Brennan, but it does not appear to us that the evidence inculpating him in the attack on Smith goes anywhere towards exculpating him on the charge of assaulting Brennan. The facts found show that there was indeed a concerned attack by the group on Brennan and we see nothing in the fact that he was attacking Smith to exculpate him from his membership of that group which had initiated matters at the phone box and followed it up with Brennan himself being attacked in the way that has been described.
On the whole matter, while it does appear curious that there was no charge brought in relation to the attack on Smith we are satisfied that the Sheriff was well entitled to convict on the charge which is now in question, charge 1.
In the circumstances the questions in the case will be answered consistently with that, in other words, to the effect that the Sheriff was indeed entitled on the evidence to make finding 19. The other questions really relate to the other charge on which the matter is conceded and they will be answered accordingly. The appeal is refused.