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Cite as: [2003] ScotHC 41

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Finnan v. Her Majesty's Advocate [2003] ScotHC 41 (18 July 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Hamilton

Lord Cameron of Lochbroom

Appeal No: XC263/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

NOTE OF APPEAL AGAINST CONVICTION

MARK WILLIAM FINNAN

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Drummond Miller

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

18 July 2003

[1] The appellant was found guilty after trial in the Sheriff Court at Dundee of a charge of assaulting Gearaidh MacGriogair in William Street, Dundee to his severe injury, permanent impairment and the danger of his life. According to the terms of the charge he kicked him on the body and knocked him to the ground, causing him to strike his head on the ground.

[2] The first ground of appeal against his conviction is that the sheriff erred in rejecting the submission made on behalf of the appellant that there was no case to answer.

[3] It appears that the incident with which the charge was concerned occurred after an earlier one in which the complainer had allegedly assaulted the appellant's son. The appellant was called to the scene, and drove off in a car with his son and a man, John Davie, who was able to identify the complainer.

[4] John Davie gave evidence that the car stopped in William Street where the complainer was walking. The appellant got out of the car and shouted "Did you just hit my son?". The witness then described the complainer as "breenging" at the appellant, after turning round to face him. He puffed out his chest and was mumbling aggressive words. He was heading towards the appellant when the appellant put his foot up to the man's abdomen and pushed him away. The complainer staggered back and either tripped over the kerb or his own feet, fell back and cracked his head on the pavement. The witness said that he thought that the complainer was going to attack the appellant. He thought that the complainer's hand was in a threatening position. He accepted that in the car on the way back to the shop where he worked he may have said something like: "That's what you get when you batter bairns". It should be added that the witness was shown part of a CCTV videotape from the shop which showed him after he returned from William Street. It showed him kicking out and saying things like "Wham" and "Bang". He denied that that was what had happened or that he was gloating. He said that his description of what happened was exaggerated as he was "a bit hyped up at the time". When the videotape was played to him again he agreed that at the part where he was shown kicking out he said "Fucking kicked him. Bang".

[5] Arlene Millers, a trainee nursery nurse, whose house overlooked William Street, gave evidence that when she was in the house with her mother she heard a car screech to a halt outside. When she looked out she saw a man standing in front of the car on the road. She had seen him earlier coming down the road staggering and obviously drunk. He was sort of leaning on the car with his hands on the bonnet. A man got out of the driver's door of the car. He approached the man, who was walking towards the pavement, raised a foot and the man fell over. She described the motion as more of a shove with the foot, not meaning to hurt him but just to push him. It was a deliberate act to push him backwards by the use of the foot. It was not an accident. The drunk man did nothing before the foot was brought up. He was facing the driver. The foot came up; the man took a step back as a result and then fell. She could not remember where the foot landed on him but it was not higher than the waist. She heard his head hit the pavement and thought he would be unconscious. She was unable to identify the person responsible, but it is not in dispute that it was the appellant.

[6] During the Crown case the court heard the terms of a voluntary statement made by the appellant to the police four days after the alleged assault by the complainer. In the course of that statement the appellant explained that, having heard about an assault on his son, he drove round and picked up his son and John Davie. He headed towards William Street to see if he could see the person who had assaulted his son. When he saw him he brought the car to a sudden stop and the tyres screeched. He then said:

"The guy turned round. I leant out the car on top of the door and said to him 'What the fuck are you doing hitting my son'. After I said that to him he come at me with his hand raised, like he was going to push me in the face. So I stepped back and kicked him ... away from me".

In considering the submission that there was no case to answer the sheriff was, of course, bound to treat this statement as evidence as to the truth of what happened.

[7] Owing to the serious head injury which the complainer sustained as a result of falling backwards the complainer had no recollection of the incident, and accordingly was not able to give any useful evidence about what happened to him.

[8] For the appellant Mr. Shead emphasised that whereas Mr. Davie, Miss Millers and the appellant each spoke to a similar, relatively minor action on the part of the appellant which led to the complainer falling over, there were not in agreement as to what preceded the appellant's action. Both the appellant and John Davie provided evidence that the appellant had acted in self-defence, whereas the evidence of Miss Millers did not do so. He did not dispute that she provided evidence that the appellant had assaulted the complainer, although it was an assault in a purely technical sense. However, it was essential to the proof of the Crown case against the appellant that the Crown should be able to found on evidence from more than one source that the appellant had not acted in self-defence. On no view could the evidence of John Davie or the appellant be said to support or confirm her account that the appellant was not defending himself. In these circumstances, Mr. Shead submitted, there was no corroboration of the intent which was necessary for proof of the crime of assault.

[9] In our view Mr. Shead's submissions in support of his ground of appeal were misconceived. There is no doubt that there was evidence from all three witnesses that the appellant deliberately struck the complainer, whether it was a push, a shove or a kick. The evidence which emerged during the Crown case plainly raised the question of whether the appellant should be acquitted of any criminal responsibility for that action on the ground that he was acting in self-defence or, at any rate, on the basis that there was reasonable doubt as to whether he was guilty of a criminal assault. It was therefore for the jury to decide whether they accepted or rejected those parts of the evidence of John Davie and the appellant where they said that the complainer had acted aggressively towards the appellant. If they rejected those parts of the evidence, they were entitled to infer that the appellant struck the complainer with the evil intent required for the crime of assault. Further, even if they accepted those parts of their evidence, it was for them to decide whether the action of the appellant was justified as being in self-defence, or at any rate whether there was a reasonable doubt as to his guilt.

[10] The submission made by Mr. Shead appeared to proceed on the basis that the evidence given by Mr. Davie and the appellant required to be accepted or rejected as a whole, whereas it was open to the jury to accept or reject whatever parts of it they considered that they should. For that purpose it was not necessary for the evidence of Miss Millers as to the absence of any aggression on the part of the complainer to be corroborated. The jury were entitled to accept or reject evidence in the light of their views as to the comparative credibility and reliability of the three witnesses. Thus, for example, if the evidence of Miss Millers had been the only evidence which pointed to the fact that the appellant did not act in self-defence, it was open to the jury to take the view that they were so impressed by the credibility and reliability of her evidence that they should reject the evidence of the other two witnesses as to the behaviour of the complainer.

[11] However, the evidence of Miss Millers did not stand alone. As the Advocate Depute pointed out, the incident between the appellant and the complainer took place against a background of the appellant being informed that the complainer had assaulted his son and that he went searching for the complainer in the company of Mr. Davie who was to pick him out. He brought the car to a sudden halt, the tyres screeching on the road. He then, according to the evidence, challenged or swore at the complainer. These pieces of evidence would have entitled the jury, taking them in conjunction with the evidence of Miss Millers, to infer that the appellant was acting out of a sense of revenge or for retaliation. Moreover, they were entitled to take the view that, even if the complainer had acted aggressively towards the appellant, there was, beyond any reasonable doubt, no justification for the appellant acting as he did.

[12] The second and remaining ground of appeal is that in charging the jury the sheriff failed to give them adequate directions in regard to corroboration. It is maintained that, given the limited nature of the evidence available to support Miss Millers, he ought to have drawn the attention of the jury to the evidence which he considered was capable of affording corroboration of her evidence. It is said that his failure to do so created the risk that the jury might have relied on adminicles of evidence which, properly understood, could not have corroborated the account of that witness.

[13] We do not consider that there is substance to this ground of appeal. The sheriff clearly directed the jury to consider, first, whether the complainer had been assaulted in the manner specified in the indictment, and, secondly, whether the appellant was responsible for that assault and was not acting in self-defence (page 19). For the purpose of the first of those questions, he directed the jury to consider whether they were satisfied that there was corroborated evidence of an assault, applying for that purpose a definition of assault which was entirely unexceptionable. This plainly directed the attention of the jury to the elements of the evidence of the three witnesses about the action of the appellant. As to the second of these questions, he directed the jury to consider whether they accepted the evidence of the appellant or whether at any rate it caused them to have any reasonable doubt (page 22). At an early stage in his charge he had directed the jury that it was for them to decide, inter alia, whether they accepted the whole or only part of a witness's evidence. He applied that general direction to the voluntary statement which the appellant had made to the police and which was in line with the evidence which he gave in his defence. The general directions in regard to self-defence were also unexceptionable. He also went so far as to direct the jury that "It is for the Crown to prove that he did not act in self-defence" (page 14).

[14] In the light of these passages in his charge we are not persuaded that the sheriff should have gone further in spelling out the other parts of the evidence which the jury could, if so advised, use in order to corroborate the evidence given by Miss Millers.

[15] In these circumstances the appellant's appeal against conviction is refused.