Scottish High Court of Justiciary Decisons

Fisher v. Her Majesty's Advocate [2003] ScotHC 28 (14 March 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Osborne Lord McCluskey	Appeal No: XC342/02 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST CONVICTION by JOHN IZATT FISHER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Shead; Wilson Terris

Respondent: MacAulay, Q.C., A.D.; Crown Agent

14 March 2003

1. The appellant in this appeal faced an indictment containing two charges, which were in the following terms:

"(1) on 13 November 1999 within The Goth Public House, High Street, Cowdenbeath ... you JOHN IZATT FISHER did assault John Dow Marshall ... and did push him to the ground and punch him in the face;

(2) on 13 November 1999 at High Street, Cowdenbeath, ... you JOHN IZATT FISHER did whilst acting along with others, assault John Dow Marshall ... and did chase after him, knock him to the ground and repeatedly kick him on the head and body to his severe injury and permanent disfigurement and permanent impairment."

The appellant pled not guilty and went to trial. On 28 September 2000 the jury found charge (1) not proven and found him guilty on charge (2), as amended, under deletion of the words "permanent impairment" substituting therefor the word "impairment". Thereafter, on 7 November 2000, a sentence of 18 months imprisonment was imposed in respect of charge (2).

2. In due course, the appellant lodged a Note of Appeal containing five grounds of appeal against conviction and sentence. Leave to appeal was granted only in relation to grounds 1 and 3. These grounds are in the following terms:

"(1) The learned sheriff erred in rejecting a 'no case to answer submission' by the defence solicitor in terms of section 160 of the Criminal Procedure (Scotland) Act 1995,"

in a number of respects which are stated in this ground.

"(3) The jury found great difficulty in believing the evidence. The jury informed the sheriff of this. The learned sheriff ought to have given a specific direction on this point but she failed to do so."

At a procedural hearing prior to the hearing of the appeal, it was indicated on the appellant's behalf that it was desired that ground of appeal 3 should be amended. At the outset of the appeal hearing the proposed amended ground was tabled. It is in the following terms:

"The sheriff failed to give adequate directions on the issue of corroboration particularly when regard is had to the questions raised by the jury (pages 12 to 14). It is submitted that the sheriff ought to have directed the jury specifically that, unless they were prepared to accept the eye witness evidence of the applicant's participation in the assault they would not be entitled to convict and that acceptance only of the circumstantial evidence would not be a proper basis for conviction. Separatim, no reasonable jury, properly directed, could have returned a verdict of guilty, given the quality, character and strength of the Crown case."

During the course of the appeal before us, a further supplementary ground of appeal was tendered in the following terms:

"Having regard to the views expressed by the foreman of the jury the verdict of guilty was perverse. In any event justice was not seen to be done."

No objection was made by the Advocate depute to these alterations to the grounds of appeal. We allowed ground of appeal 3 to be amended in the terms proposed.

3. Counsel for the appellant dealt first with ground of appeal 1, which raised the issue of sufficiency of evidence. It was pointed out that there were three witnesses on whose evidence the Crown had relied. These were John Dow Marshall, the complainer in charge (2), Stuart Mitchell Connors and Lillian Boundy. He then proceeded to review the evidence given by them, under reference to the transcript available. It was accepted that John Dow Marshall had identified the appellant as having been responsible, along with others, for the attack upon him. The complainer had described in some detail the contribution made by the appellant to the assault. The important question was whether there existed corroboration of his evidence. The two other witnesses mentioned were the only possible sources of corroboration. Counsel for the appellant first considered the evidence of Lillian Boundy, which he contended was limited to a description of the aftermath of the assault. The complainer had been assaulted before she had observed the situation. Accordingly, it was argued that she did not corroborate the evidence of the complainer. She had seen a huddle of persons surrounding another person on the ground who was the complainer. She had spoken to no activity in relation to the person on the ground. She could contribute nothing in answer to the question of who had participated in what had been a group attack.
4. Counsel for the appellant next considered the evidence of Stuart Mitchell Connors. He, along with the complainer, had been chased by the group of individuals which had inflicted an assault upon the latter. While this witness had identified the appellant as a member of the group, he had been unable to be specific about the part that he had played. It was submitted that the evidence of this witness did not furnish corroboration of the evidence of the complainer. There were no other sources of evidence capable of providing corroboration. Accordingly, the sheriff had erred in rejecting the submission of no case to answer.
5. Turning to ground of appeal 3, counsel for the appellant explained the basis of the ground by reference to the transcript of events which occurred during the course of the sheriff's charge to the jury. Since these matters are material to our decision, it is convenient to refer to them here. The sheriff's charge commenced, but was not concluded, on 27 September 2000. At the outset of proceedings on 28 September 2000 the sheriff, having been advised that there was a matter upon which the jury desired clarification, invited the jury to disclose that matter. Thereafter, the following interchange took place between the foreman of the jury and the sheriff:

"THE FOREMAN - Our difficulty, forgive me if this does not come out as clearly as it might and I am trying to give the views of the group.

SHERIFF McCOLL - Yes.

THE FOREMAN - There is general consensus that ... we understand the point about disregarding what we regard as lies, disregard that evidence completely. We find ourselves searching for strands of truth in the evidence we have heard because we don't frankly, believe most of it. Now, those strands of truth that we believe we have found are quite circumstantial. Now, the point was made yesterday by yourself that ... we think you said there have been two pieces of corroborative evidence to convict somebody or to make our decision.

SHERIFF McCOLL - Well corroboration is when there is a piece of evidence and there is something else which supports it. If you have a piece of evidence, of direct evidence, you don't need two bits of other support. One bit would be sufficient. Is that ... ?

THE FOREMAN - To support that very item?

SHERIFF McCOLL - Yes.

THE FOREMAN - Okay, I think I understand that bit. The next part of that is are two pieces of circumstantial evidence enough to be corroborative? Is that corroborative in the eyes of the law. You mentioned circumstantial and I don't know what you described direct evidence as but ...

SHERIFF McCOLL - Well, perhaps I will go over that bit again.

THE FOREMAN - If you could because it's very difficult to make a decision based on the flimsy facts (inaudible).

SHERIFF McCOLL - Well, what you have to find proved in relation to each charge, and you have got to consider each charge separately, proved beyond a reasonable doubt are the essential facts in relation to that charge and the essential facts are has a crime been committed, the second is, is the accused identified as the person who carried out the act or acts which are alleged and thirdly, in the case of assault if the act in question was carried out by the accused was it done with criminal intent. Now, in relation to corroboration, our law provides, as I said to you yesterday, that no person can be convicted of any offence upon the evidence of one witness alone however credible or reliable that witness may be. There must be corroboration which means that there has be separate evidence from another independent, reliable and credible source which confirms or supports that witness's evidence and points to the guilt of an accused. The different sources could be of a different character. As I said, there may be direct evidence of a person who saw or heard something or, on the other hand, if there is no direct evidence that someone saw or heard something, the Crown have to rely on circumstantial indirect evidence and that is circumstances admitted or proved from which the existence of the fact in issue can be inferred and the fact in issue, as I have said, is whether the accused committed the crime with which he is charged.

THE FOREMAN - Can I ask one more question?

SHERIFF McCOLL - You can ask any question you like.

THE FOREMAN - You mentioned yesterday on the question of when we observe a witness in the witness box, we are able to observe his demeanour and the way he answers the questions and decide whether he is telling the truth or not.

SHERIFF McCOLL - Well, it may assist you in doing so. You are better placed to do that.

THE FOREMAN - Yes, I understand that but if one decides that what somebody is saying is not the truth, is it logical to assume that the converse is indeed the truth?

SHERIFF McCOLL - Quite the reverse. That is what I was directing you yesterday. If you decide that someone is not telling the truth or their evidence is unreliable, you cannot assume from that that the opposite of what they have said is the truth. You simply disregard that evidence and put it out of your minds.

THE FOREMAN - Okay.

SHERIFF McCOLL - Does that satisfy you?

THE FOREMAN - I think that's it, yes."

6. Counsel for the appellant, having referred to the passage quoted, then contended that it was clear that there had been uncertainty in the mind of the jury. In particular, it was clear that there was uncertainty concerning the issue of what the foreman of the jury referred to as circumstantial evidence. Against this background, it was submitted the sheriff should have directed the jury that the acceptance of the complainer's evidence was essential to any conviction. There had been no such direction.
7. Counsel for the appellant next embarked upon a submission based upon that part of the amended ground of appeal 3 commencing with the word "Separatim". In that connection he made reference to E v. H.M. Advocate 2002 S.C.C.R. 341. In that case a conviction had been quashed essentially on account of the quality of the evidence that had been available to support it. There then followed discussion as to the appropriateness in the circumstances of the terms of that part of that ground of appeal. Subsequently, counsel for the appellant tendered the proposed supplementary ground of appeal to which we have referred, which he submitted was more appropriate to the circumstances of this case than the part of ground of appeal 3 previously discussed.
8. The Advocate depute moved us to refuse the appeal. Dealing first with the issue of sufficiency of evidence, he submitted that there was sufficient evidence to entitle the jury to convict the appellant on charge (2) and that therefore the sheriff had correctly refused the submission of no case to answer. Thereafter he embarked upon a detailed examination of the evidence of the complainer, John Dow Marshall, Stuart Mitchell Connors and Lillian Boundy. He pointed out that the complainer had made a clear identification of the appellant as a participant in the attack upon him and had given evidence concerning the part played by him. He drew attention to evidence which had been led in support of charge (1) of the indictment, which tended to suggest that a group of individuals, including the appellant, had shown hostility towards the complainer within The Goth Public House. He argued that the evidence of Stuart Mitchell Connors clearly showed that the appellant had been a member of the group outside the public house which had been responsible for the assault to which charge (2) related. Furthermore, Lillian Boundy had given evidence to a similar effect, demonstrating that the appellant had been a member of the group which had committed the assault upon the complainer. She saw them "in a huddle" around the complainer, who was lying on the ground. In all these circumstances a sufficiency of evidence had existed.
9. Turning to the issues raised by the amended ground of appeal 3, the advocate depute submitted that, while it might have been desirable for the sheriff to direct the jury specifically that they could convict the appellant on charge (2) only if they were prepared to accept the evidence of the complainer, such a direction was not absolutely necessary. The sheriff had given the jury appropriate general directions relating to the requirement of corroboration. That was all that had been strictly necessary. She had also given correct general directions on the law of concert. In these circumstances, she had done all that was necessary, even in the context of the questions raised by the foreman of the jury during the course of her charge.
10. We consider first the submissions made in relation to ground of appeal 1, concerned with sufficiency of evidence. The starting point of this consideration is the evidence of the complainer, John Dow Marshall. He gave a clear account of the events to which charge (2) related. He described how outside the public house he was attacked by a group of people, including the appellant. He was forced to the ground by the intensity of the attack by at least ten persons upon him. After having been forced to the ground he was kicked all over his face and body. The appellant was one of those engaged in this. He described specific actions by the appellant who, he said, kicked him in the face about three times. In this situation, the question becomes whether there was corroboration of the evidence of the complainer.
11. Stuart Mitchell Connors described how he, along with the complainer and others, left the public house, closely followed by a crowd of young men behaving in an hostile manner. Mr. Connors was principally concerned with securing his own safety. Shortly afterwards he saw the complainer lying on the ground in a seriously injured state. It was obvious from his condition that he had been the victim of a serious attack. By that stage the crowd of youths who had been responsible for that attack had dispersed. He identified the appellant as one of those who had been there in that crowd. He described how the crowd had left the public house and had run towards the complainer and himself. In his evidence he did not describe any particular acts of the appellant during the course of the assault upon the complainer.
12. The other source of possible corroboration was Lillian Boundy. From her viewpoint in a nearby café she saw a part of the incident. She saw, in particular, a person who must have been the complainer lying on the ground near a crossing, with a number of boys gathered round him in a huddle. That appeared to represent the latter stage of the incident. She stated that she had seen the appellant walking away from the crossing. She indicated that anyone who had been hurt must have been hurt before she saw what she described. She was unable to give evidence about any specific action on the part of the appellant.
13. In the light of this background of evidence, in our opinion, there was no corroboration of the complainer's evidence concerning acts of assault committed by the appellant himself. However, we have concluded that the evidence described was legally sufficient to entitle a jury to convict the appellant, but only upon the basis that he had been a member of a group of persons, pursuing a common criminal purpose, involving a serious assault upon the complainer. In these circumstances, in our view, ground of appeal 1 possesses no merit. The sheriff was correct in refusing the motion of no case to answer.
14. We turn next to deal with ground of appeal 3, as amended. The sheriff gave general directions on the law relating to corroboration at pages 8 to 9 of the transcript of her charge. No criticism was or could be levelled at them. Likewise, at pages 20 to 22 of the transcript of the charge she gave directions relating to the law of concert, which were not criticised. However, we have come to the conclusion that these directions, to which we have referred, were insufficient in the particular circumstances of the case. Standing the state of the evidence which we have described, we are of the opinion that the sheriff should have directed the jury that there was no corroboration of the evidence of the complainer relating to acts of assault committed directly by the appellant; and that the only basis upon which the appellant could be convicted on charge (2) was if the jury were satisfied that he had been a participant in a concerted attack, along with others, upon the complainer. That she did not do. Indeed we observe that, at page 22 of the transcript of the charge, she said this:

"If, when you look at what has been proved against the accused, you decide that you can infer beyond reasonable doubt from the evidence that what he did, that he was acting together with others as part of a common criminal plan, you could convict. If you don't, if you can't infer that then the accused's actions can only be considered by you as to what he did himself. That is if you are not satisfied that the accused was part of a group which assaulted Mr. Marshall, you could only convict him if you were satisfied upon corroborative evidence that he carried out the assault himself. You have to be satisfied beyond reasonable doubt on corroborated evidence that that was the case."

We have concluded that the last two sentences of this passage, in the circumstances, amount to a misdirection of the jury, for the reason that, as we see it, there could be no conviction of the appellant upon the basis suggested, there being no corroborated evidence of his own acts, as described by the complainer. Thus the effect of the directions which the sheriff actually gave was to permit the jury to convict the accused upon a basis on which, having regard to the evidence, they were not entitled so to do.

15. In reaching the conclusion which we have, we do so without relying directly upon the interchange between the foreman of the jury and the sheriff, which we have quoted. However, we do regard that interchange as significant for this reason - that it demonstrates that, in their consideration of the evidence, the jury had been experiencing particular difficulty in regard to the matter of the application of the rules of corroboration, as explained by the sheriff. In these circumstances, we consider that it was important that the sheriff should indicate to the jury precisely how they were entitled to approach the issues before them. Having concluded that there was misdirection on the part of the sheriff of the jury in relation to a particularly sensitive part of the case, we are satisfied that a miscarriage of justice has occurred. Accordingly we shall quash the conviction of the appellant on charge (2).