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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Peden v. Her Majesty's Advocate [2003] ScotHC HCJAC_68 (14 August 2003)
URL: http://www.bailii.org/scot/cases/ScotHC/2003/HCJAC_68.html
Cite as: [2003] HCJAC 68, 2003 SLT 1047, 2003 GWD 28-783, [2003] ScotHC HCJAC_68, 2003 SCCR 605
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JISCBAILII_CASE_CRIME_SCOTLAND
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice Clerk Lord MacLean Lord McCluskey
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Appeal No: XC438/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL by MARIE PEDEN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Brookens, solicitor advocate; Balfour & Manson
Respondent:
Turnbull, QC, AD; Crown Agent14 August 2003
The conviction
On 14 January 2002 the appellant was convicted at Glasgow High Court along with her co-accused, John James Thomas Welsh, on the following charge:
"on 15 September 2001 at Greenview Street, Glasgow you did assault Thomas Shrubb, c/o Strathclyde Police, Aikenhead Road, Glasgow, repeatedly strike him on the head and body with a knife and repeatedly strike him on the head with a piece of wood, all to his severe injury, permanent disfigurement and permanent impairment and you John James Thomas Welsh did previously evince malice and ill-will towards him."
On 18 February 2001, the appellant was sentenced to 3 years imprisonment with a supervised release order for a period of one year after her release. The appellant served almost 6 months of that sentence before being granted interim liberation on 12 August 2002.
The evidence
On the date libelled there was an altercation in a public house between the appellant's co-accused Welsh and the complainer. This resulted in a fist fight between the two men outside the public house. The appellant struck the complainer with a piece of wood during the course of the fight. When the fight ended, both men returned to the public house. The appellant remained outside with her child, who was in a pram. She hid the piece of wood in her clothing. Soon after, the complainer and Welsh came out again. Welsh then suddenly stabbed the complainer in the back, arm and face. During the course of this attack the appellant pushed the complainer against a car and hit him with the piece of wood. A bystander, Gerard McGrotty, who watched the incident, said that he could see the knife in Welsh's hand. Welsh himself admitted that he was swinging a knife. The averments in the libel that the assault was to the severe injury, permanent disfigurement and permanent impairment of the complainer related solely to Welsh's use of the knife.
The case against the appellant, so far as it concerned the use of the knife, was based on concert. The appellant denied to the police that she knew that Welsh had a knife. She did not give evidence. It is agreed by both parties that the question of her state of knowledge was a matter of inference.
The trial judge's charge
The trial judge gave the jury the following directions on the question of concert:
"Now, when you are considering the doctrine of concert where weapons are involved and where each accused on some view of the evidence has a different weapon you have to consider in the case of Peden whether she knew or saw or ought to have known or seen that there was a knife and the Crown ask you to conclude that she either knew or ought to have known, saw or ought to have seen on the basis of the evidence, some of which I have narrated to you and other parts of which it is for you to remember. If you hold that Peden saw, knew, ought to have seen or known that a knife was being wielded by her man and she persisted in her own attack then you would be entitled to apply the doctrine of concert against her. Remember of course that the knife is a relatively small weapon when you are considering what was seen and what was known and for obvious reasons the same principle applies to him in relation to her weapon which was a bigger thing as we saw, as to whether he knew or saw or ought to have known or seen that she was using such a weapon. Now, if you took the view that he ought to have or did know these matters then again the doctrine of concert is open to you to apply (pp. 31-32).
... Now, I have directed you that individually there is sufficient evidence against them for their own actings to entitle you to convict them. You are not bound to convict, you are entitled to convict. I direct you that there is also sufficient evidence to convict them on the doctrine of concert of the whole charge. It depends entirely on your view of the knowledge, sight of or deemed knowledge or sight of each other's weapons before you could convict them of acting together in concert. In law, in my judgment, in my direction, there is sufficient to entitle you to infer that the one and the other each knew what the other was carrying and wielding. You are entitled to conclude it, you are not bound to but in law there is a sufficiency of evidence of concert (p. 40).
... The accused says she saw no knife. So although McGrotty may well have seen it, it is a matter for you what you make of his account, you have got to be satisfied beyond reasonable doubt that Marie Peden knew of or ought to have known or seen a knife before you can infer guilt art and part with the knife (p. 42)."
The ground of appeal
The ground of appeal is that the trial judge misdirected the jury in the passages that we have quoted in telling them that the appellant could be convicted, on the basis of concert, if she knew or ought to have known that Welsh had a knife or could be deemed to have known that he did.
The submissions for the parties
The solicitor advocate for the appellant submitted that the appellant could be guilty on the principle of concert if she knew that Welsh had the knife; but not on the basis that she ought to have known that he had the knife. In the latter event there would not be actual guilty knowledge, but merely constructive knowledge based upon what, in the judgment of the jury, she ought to have known. The solicitor advocate accepted that on any view the appellant was guilty of assault by striking the complainer with a piece of wood; but quoad ultra he submitted that the conviction should be quashed.
The advocate depute said that he would not commend the directions complained of; but that there had been no miscarriage of justice, because on the evidence it must have been clear to the jury that the true issue was whether the appellant actually knew that Welsh had the knife, either because she saw it in his hand or because she could infer that he had it from other obvious signs. Since the evidence showed that at least one bystander knew that Welsh had the knife, the question for the jury was whether they could infer that the appellant too must have known that he had the knife.
The report of the trial judge
In his report the trial judge says the following:
"It seemed to me that on such evidence it was a purely jury question whether the appellant by using her own weapon was liable also for what Welsh did. She was beside Welsh and in my opinion I posed the correct test to the jury. The words I used echoed those of her own counsel who in addressing the jury said the test was ' ... did she know or should she know ... ' that Welsh was using a knife (according to my note).
At the end of the Crown case there was no submission made for Peden that there was no case to answer. To the jury it was never suggested that there was no sufficient evidence and that matter is not raised in the Note of Appeal.
In my opinion I posed the correct test at page 31 of the Charge ... "
Conclusions
In our opinion, the trial judge misdirected the jury on the question of concert. The appellant could be convicted on this libel only if she actually knew that Welsh had the knife (cf. McKinnon v HM Adv, 2003 SLT 281). The directions of the trial judge were to the effect that even if the appellant did not know that Welsh had the knife, the jury could nonetheless convict her as libelled if they considered that she ought to have known that he did. That is not the law. We think that the trial judge perhaps had in mind the idea that the circumstantial evidence was such that the jury were entitled to infer that the appellant must have known that Welsh had a knife (cf. Charge, p. 40, supra). That would have been an inference of actual knowledge. But the directions that we have quoted implied that the jury could convict even if they found that the appellant did not have such knowledge.
Since we cannot exclude the possibility that the jury may have convicted on the basis of what the appellant ought to have known, rather than what she actually knew, as to Welsh's possession of the knife, we consider that the misdirection in this case has resulted in a miscarriage of justice.
Decision
We have therefore allowed the appeal, quashed the conviction and sentence, and substituted a conviction of guilty under deletion of the words "repeatedly strike him on the head and body with a knife and" and the words "all to his severe injury, permanent disfigurement and permanent impairment". We have substituted a sentence of 11 months imprisonment, backdated to 18 February 2002, the effect of which will be the appellant will be released immediately.