Scottish High Court of Justiciary Decisons

SION THOMAS BAILLY v. PROCURATOR FISCAL, EDINBURGH [1999] ScotHC 61 (10th March, 1999)

The appellant Sion Bailley was convicted at the District Court in Edinburgh of two offences, one being a breach of the peace and the other an assault. The assault is the subject matter of this appeal. The assault in question is described in the charge as amended as being assault on a girl Campbell by punching her on the head and seizing her on the body to her injury. It is accepted that there is sufficient evidence to justify conviction of assault by seizing her on the body and that this was to her injury to a minor extent by bruising. What is disputed is whether there was a sufficiency of evidence for the conviction including the words "punch her on the head". The injury that was said to result from that blow was a more serious injury, on the face.

There were two eye witnesses. There was the complainer who gave a full account which is entirely consistent with the charge and that is not disputed as constituting appropriate primary evidence for conviction. The complainer describes the appellant as punching her once with a clenched fist to the face about the left eye with full force, causing a cut to her eyebrow and subsequent bruising. There are of course other details as well. The other eye witness was a witness Williams who plainly gave a substantially different account of events. This witness describes the appellant as having grabbed hold of the complainer by the arms, pulling her up and pushing her against a wall whereupon she slid to the floor. The appellant pushed her again against the kitchen wall. What is not contained in this is any question of a punch. The submission is that these accounts are not really compatible and that there is no corroboration of the assault as one including the punch. The matter arose first in a submission that there was no case to answer, but no defence evidence having been led, a similar question arose again at the stage of conviction. It is plain that the submission was rightly rejected in as much as it is conceded that there was sufficient evidence for an assault to have been established. The matter is not well dealt with by the magistrate in describing the stage of the submission, but there was a sufficiency at that point for some conviction. So far as the eventual position was concerned, the magistrate deals in some detail with the evidence of Miss Williams. He says that he believed the complainer and did not entirely believe Miss Williams. In particular he rejected an account given by Miss Williams of herself having assaulted the complainer and also rejected an account given by Miss Williams as to how the injury to the complainer occurred. Miss Williams had said that it occurred as a result of the complainer falling and cutting her head against the corner of a kitchen table. With these matters rejected, but accepting Miss Williams as to there having been an assault on the complainer by the appellant, we are satisfied that there was sufficient evidence for conviction on the whole charge. There was the primary evidence of the complainer, there was confirmation of an assault, although not covering its full extent, coming from the evidence of Miss Williams, but there was also evidence of the injury immediately afterwards, otherwise unaccounted for and being the kind of injury which would indeed result from the sort of blow described by the complainer. We are satisfied that there was a sufficiency of evidence. The appeal fails and we will answer the questions to the effect that the magistrate was justified in rejecting the submission, and was entitled to convict.

LIN