Appeal No: 2298/97
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD PROSSER
APPEAL BY STATED CASE
LEWIS MORRISON GRAY
PROCURATOR FISCAL, KIRKCALDY
Appellant: Wheatley, Solicitor Advocate, Wheatley & Co
Respondent: Brodie Q.C. A.D., Crown Agent
9 March 1999
This is an appeal by stated case taken by Lewis Gray in relation to a conviction of two assaults in the District Court at Kirkcaldy, the decision having taken place on 14 August 1997.
An additional ground of appeal was allowed late but Mr Wheatley today, in the light of a report from the appellant's solicitor, indicated that he was not insisting with that additional ground.
So far as the two assaults are concerned, the appeal proceeds on the basis that there was not appropriate evidence to justify conviction. The first of the alleged assaults occurred on 4 January, being an assault on a boy, Ricky Bell, by punching on the face. The second charge related to an assault on 11 February, the complainer being a boy named Derek Kelly and the charge being one of repeatedly punching and kicking him on the head to his injury.
So far as the first of these charges is concerned, the alleged assault on Bell, the basis of the appeal was that the quality of the evidence was not such as to justify conviction. It was submitted that while the justice refers to minor discrepancies the actual discrepancies in evidence should not be regarded as minor. There was said to be significant discrepancy in a number of respects, including questions as to whether the alleged blow had been struck with the fist or with an open hand, and whether it had connected with the right side of the complainer's face or the left. There were discrepancies as to the time of day, with the witnesses placing it as being afternoon or early evening or between 7.00pm and 7.30pm. There were some discrepancies as to the positions of various people present and there was a discrepancy as to injury in as much as the complainer said that the bruise to his face had been noted by the police whereas the policeman involved had no note of any injury. It is true that there are differences of evidence but there was a clear account from the complainer himself relating to a punch on the right side of the face. It does not appear to us that the fact of a particular witness or other witnesses thinking it was the left is of any great significance and overall the other points do not seem to us to cast any doubt upon the fact that the witnesses were plainly describing the same incident, in which the appellant did indeed strike Bell on the face, and indeed probably on the right side of the face as he himself described. We see no substance in the ground of appeal and we are satisfied that the justice was entitled to convict on that charge.
So far as the other offence is concerned, the assault on Derek Kelly, it was accepted by Mr Wheatley that Mr Kelly himself gave a clear account of the matter. The question was whether there was corroboration of his account. This depended on the witness Alexander Paterson. It is narrated that Paterson, in a shop, heard the sound of persons fighting. He described this as scrummaging. He heard the sounds of metal racks holding vegetables falling to the ground. It is then said that he stated that he went round to the side of the aisle which the boy Kelly was on and he found the appellant standing over Kelly in a manner as if he was going to hit him. The witness said that he told the appellant to stop assaulting Kelly to which the appellant replied to the effect that Kelly had insulted him. We are satisfied that that account is sufficient to constitute corroboration of the primary account given by Kelly and the appeal fails on that ground also. The justice was entitled to convict on each and the appeal fails.