Scottish High Court of Justiciary Decisons

DAVID GORDON ROBB v. HER MAJESTY'S ADVOCATE [1999] ScotHC 45 (2nd March, 1999)

On 20 February 1998 after trial in the Sheriff Court at Linlithgow the appellant was found guilty of a number of charges on the indictment. He appeals with leave against his conviction in respect of charges 4 and 5.

For the background to the present appeal it is necessary in the first instance to turn to the indictment in the form which it was prior to the commencement of the trial. According to charge 3 of that indictment the appellant was accused of assaulting Stephen Moffat by striking him on the face and hand with a glass tumbler or similar object all to his injury and threatening him with further violence. That was said to have occurred in Ann Street, Bathgate, West Lothian on 4 or 5 April 1997. According to charge 4 he was accused of breach of the peace on 4 or 5 April at the Dreadnought Hotel, Whitburn Road, Bathgate. The terms in which he was so charged stated that "you did conduct yourself in a disorderly manner, shout and swear, fight with others and commit a breach of the peace". According to charge 5 it was alleged against him that on 5 April 1997 in King Street, Bathgate, he assaulted Stephen Moffat, butted him on the face and cut him on the face with a knife or other similar instrument to his severe injury and permanent disfigurement.

Before the trial began the Procurator Fiscal Depute withdrew charge 3. Accordingly it was deleted from the charges which thereafter were put before the jury. From the sheriff's report it appears that in framing that charge the Crown had been in error as to the locus having stated that the locus was Ann Street, Bathgate rather than the Dreadnought Hotel. However the Crown did not attempt to amend that charge in order to change the stated locus.

Thereafter the trial began and proceeded. The point with which we are concerned occurred during the examination in chief of Stephen Moffat who, as we have already noted, was the complainer on charge 5. However, he was also led by the prosecution in order to give evidence as to the alleged breach of the peace in terms of charge 4. According to the sheriff's report he gave evidence that he and some friends went to the Dreadnought Hotel in Bathgate. Evidence from other witnesses said that this was some time around 11.30pm. Moffat said in examination-in-chief that he got into a bit of a scuffle with the appellant on the dance floor. While dancing with a girl someone pushed him. He told him to "sod off". The same thing happened again and he told this person, whom he identified as Billy Fraser, where to go. He saw the appellant standing next to Billy Fraser. He said that he asked the appellant what the problem was, and added "this is when it happened". He then said that the appellant had a glass in his hand and he tried to push it in his face.

At this point objection was taken to the line of questioning by the solicitor for the appellant on the ground that the witness was being asked to give evidence in regard to a crime which was not charged. Having heard argument the sheriff repelled that objection. It appears that thereafter the witness confirmed that the appellant had tried to push the glass or tumbler into his face. He did not say that the glass made any contact with his face. He did not say that there was any injury caused to him.

On behalf of the appellant Mr McBride submitted to us that the sheriff had wrongly admitted this evidence of Moffat. He submitted that no fair notice had been given of the Crown's intention to lead that evidence. He referred to the general approach which is explained in the case of Nelson v Her Majesty's Advocate 1994 SCCR 192, and in particular by the Lord Justice General (Hope) delivering the Opinion of the Court at p. 203, as to the question of fair notice where the Crown seek to lead evidence of a crime not libelled. Mr McBride submitted that in this case it was important to note that charge 4, the charge of breach of the peace, did not say that the appellant had struck anyone or that he had had any weapon with him.

Mr McBride also pointed out that in the course of the trial the prosecution had used the evidence in regard to the breach of the peace in order to attack the credibility of the appellant in regard to charge 5. The assault was said to have happened about an hour later than the breach of the peace. This had happened both in the cross-examination of the appellant and in the prosecutor's speech to the jury. The evidence which had been heard by the jury in regard to the breach of the peace was evidence upon which the prosecutor was entitled to rely, once it had been given, in order to show the character or disposition of the appellant, which could be relevant to the proof of charge 5. Mr McBride also pointed out that in the course of his charge the sheriff had directed the jury that, when they were considering charge 5, they should ignore completely the evidence in regard to the subject matter of charge 4 on the basis that it had no relevance to charge 5. (See 25D-26A). Mr McBride submitted that this displayed an inconsistent approach on the part of the sheriff. It was a belated attempt on his part to tell the jury that the evidence heard in regard to charge 4 was not relevant to charge 5 and it tended to indicate that the sheriff had reached a wrong decision in deciding to admit the evidence that he did in regard to charge 4.

It is not in dispute that the fact that a charge is one of breach of the peace does not of itself mean that it cannot cover conduct which amounts to an assault. In that respect the Advocate Depute drew our attention to the case of Butcher v Jessop 1989 SCCR 119. The question with which the present case is concerned is the matter of notice. Whether fair notice has been given of an intention to lead evidence such as evidence of assault depends on the circumstances of the individual case. Apart from the general requirement of fair notice no general rule can be laid down. It is indeed a matter of degree depending on the particular case. In this case the Advocate Depute submitted that charge 4 did give fair notice. We are fully satisfied that that submission is correct. We have already noted that the charge contained in terms the allegation that the appellant fought with others, and, having regard to the evidence so far as it went in regard to this charge, we are satisfied that adequate notice was given. In these circumstances we are of the opinion that the present appeal is not well founded and accordingly the appeal will be refused.