APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lady Cosgrove Lord Sutherland
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[2005HCJAC134] Appeal No: XC123/04 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION by MICHAEL WEST Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead; Allardice & Creggan, Dundee
Respondent:
McConnachie, Q.C., A.D.; Crown Agent22 November 2005
[1] After trial in the Sheriff Court at Dundee the appellant was found guilty of a charge of assault to severe injury. According to the terms of that charge (which was charge (3) of the indictment) he repeatedly punched and kicked the female complainer on the head and body. [2] According to the complainer's evidence, after the appellant assaulted her in the house occupied by a friend she blacked out. She later woke up in hospital where it was found that she had sustained a number of injuries. The appellant had called for an ambulance and had accompanied her to the hospital. Police officers detained him at the hospital on a charge of having assaulted her, and took him to police headquarters in Dundee. When his details had been recorded there after his arrival at about 3.40 p.m., he was placed in a police cell. The duty sergeant, Sgt. Scott, gave evidence that when he was checking on the prisoners at 4.20.p.m. the pursuer told him that he taken an overdose of tablets "because of what I had done". He claimed that he taken an overdose of 40 paracetamol and 30 antidepressant tablets. The witness had been on duty at the charge bar when the appellant had been brought there by the officers who had detained him, and he knew the general the nature of the charge on which the appellant was being held. As a result of what the appellant had said the witness called on police officers to take him to the hospital as a matter of urgency. Blood tests proved negative and he was discharged. He was returned to his police cell about 8 p.m., after which he was interviewed by police officers. The appellant did not give evidence at the trial. However, evidence was given as to what he said at the interview. He then stated that he had found the complainer in an injured state on the ground outside the building where the friend lived. [3] In his charge to the jury the Sheriff gave them general directions as to the need for corroboration in proof of the guilt of the accused. He pointed out that evidence to corroborate the evidence of an eyewitness could come from an admission by the accused or from forensic evidence. He directed them that there was sufficient evidence to entitle them to convict the accused if they so wished. At page 16 of the transcript he reminded them that there had been evidence as to what the appellant had allegedly said at different times. He said:"What he had said to the ambulance technicians, what he had allegedly said, if he said it, to Sgt. Scott and what was said at interview and which you saw on the videotape. Now, the content of these statements doesn't incriminate Mr West at all and in these circumstances the evidence is available to you for the purpose of proving that the statements were made and showing the attitude or reaction of Mr West at the time when the statements were made. So these are part of the general picture which you have to consider. It is not the facts which are contained in the statement and whether they are true or not but it may show that the accused has been consistent from an early stage. His account, apart from the evidence which the ambulance staff gave in which they say different locations, different grassy areas where he found Miss McMillan, that differs, but you may consider that by and large Mr West has maintained the same version throughout, that he found the lady already injured, took her home and therefore he could not have carried out the assault".
"There is only I think one point that I should mention. In relation to what Mr West is alleged to have said to Sgt Scott, that is obviously a crucial part of the Crown case in relation to charge 3 and you would have to consider whether that statement was made, whether you believe Sergeant Scott that it was made, and if it was made whether that statement does amount to an admission. You heard Miss Allardice go through all the details as to the elements which might count against that and you should bear all of those in careful consideration. What you have to consider, ladies and gentlemen, is on the circumstances was it obvious that the accused was detained on what is now charge 3 and was that a remark made in relation to charge 3 or was it the fact that there was a gap in time that the remark was made in the context of the alleged overdose and does it really amount to an admission to the charge or was Mr West referring to something else. So that really is a crucial part of the case that you have to consider. So I think you should bear in mind what the parties have said on that and the directions I have already given"