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Cite as: [2005] ScotHC HCJAC_15, [2005] HCJAC 15

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Leggatt v. Her Majesty's Advocate [2005] ScotHC HCJAC_15 (22 February 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Macfadyen

[2005HCJAC15]

Appeal No: XC500/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

APPEAL

KIRK ALEXANDER LEGGATT

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Brown; Wardlaw Stephenson Allan

Respondent: Clancy, QC, AD; Crown Agent

22 February 2005

The conviction
[1] On 31 August 2001 at Tain Sheriff Court the appellant and his co-accused Michael Bradford Dickson were convicted on two charges of assault. The charges, so far as relevant to this appeal and after a deletion made by the jury in charge (2), were in the following terms:

"(1) on 19 May 2001 at Castle Avenue, Invergordon near to South Lodge Primary School, Ross and Cromarty you KIRK ALEXANDER LEGGATT AND MICHAEL BRADFORD DICKSON did assault Charles Adam Kerr Duncan and did repeatedly strike him on the head with a spanner or similar implement and did seize him around the neck, hold a knife against his throat, threaten him therewith and struggle with him, all to his injury ...

(2) on the date and at the place above libelled you KIRK ALEXANDER LEGGATT AND MICHAEL BRADFORD DICKSON did assault Lee James Walker and did ... repeatedly strike him on the head with a spanner or similar implement and struggle with him and stab him on the body with a knife to his severe injury and to the danger of his life ... "

The case for the Crown
[2] The case against the appellant consisted of the evidence of several eyewitnesses, together with forensic evidence linking bloodstains on the appellant's clothing to the stab wound sustained by the complainer Walker.

[3] The complainer Charles Duncan identified the appellant as one of the two assailants who attacked him and Walker. He said that the appellant had had a knife and appeared to punch Walker in the area of his left hip where the stab wound was inflicted. The complainer Lee Walker identified the appellant as having held Duncan in a headlock at the stage when Duncan was threatened with the knife. Irene Macleay said that she saw the appellant with a knife in his hand standing beside Duncan. The appellant then approached the complainer Walker and wrestled with him. Walker fell to the ground and was found to have been stabbed. David Hallett identified the appellant as one of the assailants. John Findlay identified the appellant as looking like the shorter of the two assailants. He said that the shorter of the two was near to Walker with a shiny object in his hand just before Walker fell to the ground with a wound to his side.

[4] The medical evidence was that the complainer sustained a stab wound to his hip about three and a half inches deep. There was forensic evidence that bloodstains on the appellant's jacket and three stains on his trousers could be the blood of the complainer Walker, but could not be the blood of the appellant, the co-accused or Charles Duncan. The appellant's solicitor did not challenge this evidence.

[5] The Crown led evidence of a taped interview given by the appellant to the police in which he not only denied any involvement in the incident but denied that he was even at the locus.

The case for the appellant
[6] Neither the appellant nor his co-accused gave evidence. The solicitor for the appellant cross-examined the eyewitnesses on various factual points affecting their credibility and reliability. He did not suggest to any of them that the appellant had not been at the locus. In his speech to the jury he focused on the question of reasonable doubt. He pointed to certain discrepancies between the recollections of the eyewitnesses. He did not refer at all to the appellant's police interview. By clear implication he accepted that the appellant had been at the locus. His submission was that the appellant's guilt on either of the charges libelled had not been proved.

The sheriff's charge
[7] The sheriff directed the jury inter alia as follows:

"You will have to consider, ladies and gentlemen, as I say, whether there was a common criminal purpose that the two of them were involved in which involved the use of weapons, namely the spanner and the knife, and that, ladies and gentlemen, requires you to consider the evidence very carefully. Both defence agents have said that there was no common criminal purpose here and that even if you consider they were involved in this, were acting separately.

Of course, the defence position so far as [the solicitor for the appellant] is concerned is that his client was not there at all, but that is a matter which you will have to consider (Charge, pp 32-33) ...

There is also, ladies and gentlemen, evidence that at some stage when he is alleged to have been assaulting the first accused (sic) Dickson - sorry, Duncan - that the second accused said to one or more of the people who were there ... I will just look up my note on this.

My note is of the evidence of John Finlay who was there at the time and gave evidence that Leggatt was attacking Duncan and that the second accused Dickson had the spanner in his hand and said to him 'don't bother. Just move back'. You may think that if that in fact was said - if you do accept that - then that indicates the second accused is in this matter together with the first accused Leggatt" (ibid, pp 57-58).

Grounds of appeal
[8] Counsel for the appellant has insisted in two grounds of appeal; namely that the sheriff misdirected the jury (1) in wrongly saying that the position of the appellant's solicitor was that the appellant was not at the locus; and (2) in wrongly saying that the witness Findlay had said that he saw the appellant attacking Duncan. [9] The Crown accepts that the sheriff misdirected the jury in both of these respects but submits that neither misdirection caused a miscarriage of justice.

Submissions for the parties
[10] Counsel for the appellant submitted that the sheriff erred in his description of the line of defence taken by the appellant's solicitor. The appellant's solicitor had not referred to the police interview at all. The line of defence was that there was reasonable doubt as to the appellant's guilt. The suggestion that the defence position was that the appellant was not at the locus could have led the jury to think that the appellant had put forward an untenable line of defence. Since the sheriff had chosen to refer to Findlay's evidence, it was essential that he should refer to it accurately. One could not know what the jury's attitude to Findlay's evidence would have been if it had been accurately referred to; or what effect the misdirection about it had upon the jury. Although there was an admitted sufficiency of other evidence incriminating the appellant, it could not be assumed that the sheriff's misdirection had not led to a miscarriage of justice.

[11] The advocate depute submitted that the misdirections had to be seen in context. The Crown case was that the appellant and the co-accused carried out a concerted attack on the complainers in which the appellant used a knife and the co-accused used a spanner. Both misdirections occurred in parts of the charge where the sheriff was dealing with concert. Neither had any specific reference to the appellant's use of a knife. This was not a case such as Cairns v HM Adv (1999 SCCR 5552) where the misdirection related to evidence which went to the heart of the case (ibid, Lord Justice General Rodger at p 557A-B; 557D). The misdirections had no bearing on the appellant's own direct responsibility. Moreover, the evidence and the speeches were fresh in the minds of the jurors. The sheriff had emphasised to the jury that they should proceed on their own recollection of the evidence and not his.

[12] No eyewitness had been cross-examined on the line that the appellant had not been at the locus. That was never suggested in the defence speech. The effect of the misdirection about the line of defence would be minimal at most.

[13] The reference to Findlay's evidence was made in the context of the question whether the co-accused was art and part in the use of the knife, and not in the context of the appellant's own actions. This was a straightforward case. There was ample evidence to justify the conviction of the appellant on both charges. Findlay's evidence was not crucial (cp Shepherd v HM Adv 1997 SLT 525; Crawford v HM Adv 1999 SCCR 674; Cairns v HM Adv, supra).

[14] In any event, there was a self-contained case against the appellant for his own direct responsibility for the assaults with the use of the knife, even if all references to concert with the co-accused and the co-accused's use of the spanner were deleted from the libel.

Conclusions
[15] In our view, counsel were right in agreeing that both of the directions complained of constituted misdirections. It would have been open to the sheriff to say that the only evidence emanating from the appellant was the Crown evidence as to the contents of his police interview, in the course of which he had denied having been at the locus. The sheriff, however, did not refer to the police interview. Instead, he attributed that line of defence to the appellant's solicitor. That was plainly not the line of defence that the appellant's solicitor had taken. There was therefore a misdirection. The sheriff also erred in his reference to Findlay's evidence.

[16] Nevertheless, we think that from the cross-examinations of the five eyewitnesses by the appellant's solicitor, it would be repeatedly apparent to the jury that he was not suggesting that the appellant had not been at the locus, but was instead challenging the witnesses' credibility and reliability. Furthermore, in the light of the speech for the defence, the jury could have been left in no doubt as to the true nature of the defence. We cannot see how the sheriff's erroneous remark on the point could reasonably be thought to have misled the jury.

[17] Moreover, despite his erroneous reference to Findlay's evidence, the sheriff expressly directed the jury before and immediately after this misdirection that it was their recollection of the evidence that mattered and not his (Charge, pp 5, 58). Since five of the eyewitnesses identified the appellant as one of the assailants and four of them spoke to the appellant's possession of a knife; and since the defence did not challenge the scientific evidence relating to the bloodstains, it is apparent that, even if Findlay's evidence had been disregarded in its entirety, there remained a formidable case against the appellant.

[18] Looking at these misdirections in the overall context of the trial, we consider that neither can be said to have related to an evidential issue that was critical to the success or failure of the prosecution. In this respect, this case is distinguishable from cases such as Cairns v HM Adv (supra). In this case the evidential issues were straightforward; and the evidence and the speeches were fresh in the minds of the jurors. We conclude therefore that in all the circumstances it cannot be said that either of the sheriff's misdirections caused a miscarriage of justice.

Disposal
[19] We shall refuse the appeal so far as it relates to conviction and continue the appeal on the question of sentence.

The sheriff's Report
[20] In his Report the sheriff has given us a full analysis of the evidence, but in relation to three of the grounds of appeal he has left it to this court to make its own decision on the evidence. On the two grounds on which the appeal has been insisted in, he has provided only cursory comments. On the question of sentence, he has nothing to say except that the sentences imposed on the two accused were competent and within his discretion.

[21] In some cases the sheriff may be unable to comment on a particular ground of appeal; for example, an Anderson ground that relates to matters of which he has no knowledge. But in cases where the ground of appeal is directed at a ruling of the sheriff or at the terms of his charge, it is helpful if he specifies his reasons for having given the ruling or the direction complained of. If he does not, we may have to request a supplementary report, with consequent delay, inconvenience and expense.

[22] In this case we have been able to decide the appeal against conviction with the assistance of counsel and from our own study of the transcripts of the evidence, the speeches and the charge. But before we resume the hearing of the appeal, we shall ask the sheriff to give us his reasons for imposing the sentence appealed against.