Scottish High Court of Justiciary Decisons

Wilson v. Her Majesty's Advocate [2003] ScotHC 24 (09 January 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Kingarth	Appeal Nos: C991/02 XC99/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION and SENTENCE by DAWER WILSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Shead; Balfour & Manson

Respondent: Macleod, AD; Crown Agent

7 January 2003

1. On 14 November 2001 at Glasgow High Court the appellant was convicted of the following charge:

"on 22 January 2001 at Calderwood Road, Glasgow, while acting along with others whose identities are to the Prosecutor unknown, you did assault Christopher Alexander Robb, aged 14 years, c/o Rutherglen Police Office, pursue him, knock him to the ground, repeatedly kick him on the head and body, repeatedly jump on his head and repeatedly strike him on the head with a golf club or similar instrument, all to his severe injury, permanent disfigurement and to the danger of his life and you did attempt to murder him."

On 5 December 2001 Lord Johnston sentenced the appellant to detention in a Young Offenders Institution for a period of eight years backdated to 14 November 2001.

I Appeal against conviction

The directions of the trial judge

2. The appellant lodged a special defence of alibi. In support of it, he gave evidence on his own behalf and led six witnesses. Counsel are agreed that the central issue in the trial was a straightforward issue of identification. In his charge the trial judge did not rehearse the evidence on either side in any detail. That was a matter for his discretion. Given the nature of the issue, we can see why he took that course. At the outset of the charge the trial judge directed the jury on the question of onus and standard of proof and at that stage mentioned the special defence. He said the following:

"Now, ladies and gentlemen, in any case of this sort, as they say, where the Crown bring a charge against him, a citizen of this country, the matter is governed by a general proposition which I will now put to you, and then we will look at it in some detail. It is this: the Crown must prove beyond a reasonable doubt the commission of the crime charged by the accused by sufficient evidence which is acceptable to you, the jury. Now, we will look at that. The Crown must prove reflects (sic) what everybody else including myself have been saying to you since the start of this case: the burden of proof rests on the Crown against the presumption of innocence as far as the accused is concerned. The Crown must establish the guilt of the accused, and where, as here, as I have said to you before there is a special defence which has been spoken to in evidence, the defence do not have to prove that: so how to deal with it I will come to discuss with you in a few moments (pp. 2-3)."

He then dealt with the question of corroboration in the following way:

"'By sufficient evidence' reflects a proposition or a rule of Scots law that nobody can be convicted of a crime unless there is evidence pointing to guilt from more than one source. That is what we call corroboration. The evidence need not be identical, and it may be of varying different shapes and sizes. If you imagine a cable consisting of a number of strands of different shapes, sizes and colours, they are all different, but they can be woven together into a single cable. That, ladies and gentlemen, is what is meant by sufficient evidence. If I thought there was not sufficient evidence in law for you to consider the matter then I would not be leaving this case in your hands

(pp. 4- 5)."

At a later stage the trial judge returned to the subject of the defence case and, in the context of the directions that he had given earlier, said the following:

"Now, ladies and gentlemen, I am not going to say very much at all about the evidence, but what I now have to say to you is designed for your guidance, and you are not obliged to follow this at all. You may however consider it helpful -- and this is not (inaudible) the evidence; just plain commonsense. Since you have heard the defence case and the defence witnesses, to consider whether you accept that Mr. Wilson was not there that night and did not do this. If you do accept that, then of course that is the end of the case (inaudible) you will simply acquit him. If the defence evidence -- and again it does not mean they have to prove anything; it's just because it's there and (inaudible) -- if the defence evidence leaves you in a reasonable doubt as to whether he was there or not, again you will acquit him. But even if you put the defence evidence completely to one side, reject it or not accept it, that does not mean that you are bound to convict: because this is not a court of public inquiry where you have to reach a result. It's (sic) the whole evidence presented by the Crown (inaudible) leaves you in a reasonable doubt as to whether Mr. Wilson committed this crime you will again acquit. So in effect if you like it is a three stage exercise before you can reach a conviction (pp. 13-14)."

Finally he reminded the jury of the need for corroboration of the Crown case in the following terms:

"It goes without saying that in view of what I have said to you earlier that you must accept at least two of the witnesses evidence who spoke to the crime being committed by Mr. Wilson before you could convict (p. 15)."

 

The case for the appellant

3. Counsel for the appellant has argued two grounds of appeal, namely (1) that the trial judge failed adequately to direct the jury in relation to the special defence and, in particular, failed to direct them on the purpose and effect of that defence; and (2) that he failed to direct the jury that the doctrine of corroboration applied only to the Crown case.
4. In support of these grounds, counsel for the appellant referred us to Murray v HM Adv (2000 SCCR 1). In that case the court upheld an appeal where the sheriff had failed to direct the jury on the approach to be taken to the appellant's evidence and had failed to direct them that the requirement of corroboration did not apply to the defence case. Counsel also referred to Nelson v HM Adv (2002 SCCR 787). In that case the court upheld an appeal where the sheriff had failed to direct the jury that the evidence led for the defence did not require to be corroborated or that they must acquit if they believed the accused's evidence or if it left them in any reasonable doubt. Counsel for the appellant accepted that the sufficiency of directions on these matters depended always on the circumstances of the case. He submitted that in the present case the deficiencies in the charge in the respects to which we have referred amounted to a misdirection and constituted a miscarriage of justice.

The case for the Crown

5. The advocate depute submitted that although the charge was unorthodox in respect that the trial judge had failed expressly to direct the jury on the matters mentioned in the grounds of appeal, it nevertheless contained the substance of the directions desiderated on behalf of the appellant. In particular, at page 13 of the charge (supra) the trial judge had conveyed to the jury the point that no onus applied to the special defence. That was the essential principle laid down by the full bench in Lambie v HM Adv (1973 JC 53, Lord Justice General Emslie at p. 59). The trial judge was not bound to direct the jury expressly as to the nature, purport and effect of a special defence of alibi (Fraser v HM Adv, 1982 SCCR 458; cf. Renton and Brown, 6th ed., at para. 18-79/3). The charge must always be looked at as a whole. Although the trial judge had failed to direct the jury that the doctrine of corroboration did not apply to the defence case, there had been no misdirection because the substance of that was implied in the passage at pages 4-5 (supra; cf. Harrison v HM Adv, 1993 SCCR 1087, Lord Justice Clerk Ross at p. 1094). This was a relatively straightforward case in which the issue was clearly before the jury.

Decision

6. In this case the court again finds itself in the unsatisfactory position of having to consider whether directions that should have been given expressly can be said to have been given impliedly in the context of the charge as a whole (cf. Nelson v HM Adv, supra; Harrison v HM Adv, supra; Dunn v HM Adv, 1986 JC 1126). While previous cases on the point give some measure of guidance, the decision in every case of this kind must depend on the words of the trial judge read as a whole in the context of the issues that emerged at the trial. Taking that approach, we consider that the directions that we have quoted adequately brought home to the jury that there was no onus on the defence, that there was therefore no onus to make out the special defence and that if, on the whole evidence, they were left in any reasonable doubt, it was their duty to acquit. For that reason we reject the first ground of appeal.
7. Furthermore, although the trial judge failed to say that the principle of corroboration did not apply to the defence, we consider, on reading the charge as a whole, that his direction on corroboration (at pp. 4-5, supra) made it sufficiently clear that that was a requirement that applied only to the Crown case. In the light of that direction and his later observations that if the jury had any reasonable doubt they should acquit, we do not consider that the trial judge misdirected the jury on this point. We therefore reject the second ground of appeal.

II Appeal against sentence

8. This was an unprovoked attack in which the appellant and several other youths set upon a defenceless 14-year old boy. The appellant repeatedly struck the complainer on the head with a golf club. The complainer suffered serious head injuries. He was admitted to hospital in a comatose state. His life was in danger. He has made a remarkable recovery, although he still has a hearing problem that remains to be resolved.
9. Counsel for the appellant accepted that the conviction called for a substantial custodial sentence; but he argued that in the circumstances the sentence was excessive. The appellant was aged 19 at the time of the offence and was a first offender. The court had been shown an excellent reference from his employers. In imposing the sentence, the trial judge had failed adequately to take account of the appellant's youth and previous good record and the fact that the complainer had recovered.
10. In our opinion the gravity of this offence warranted a severe sentence. This was an attempt to murder carried out on a defenceless boy of 14 with repeated blows to the head with a weapon. The complainer's injuries were so serious that they endangered his life. His remarkable recovery is not a factor that mitigates the penalty. For these reasons we do not consider that the sentence was excessive. We refuse the appeal.