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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Thomson v. Her Majesty's Advocate [2005] ScotHC HCJAC_17 (25 January 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_17.html
Cite as: [2005] ScotHC HCJAC_17, [2005] HCJAC 17
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Thomson v. Her Majesty's Advocate [2005] ScotHC HCJAC_17 (25 January 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Marnoch Lord Hamilton Lord Weir
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[2005HCJAC17] Appeal No: XC1201/03 OPINION OF THE COURT delivered by LORD WEIR in APPEAL AGAINST CONVICTION by MARK MILLER THOMSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Brown; Balfour & Manson
Respondent:
McLeod, A.D.; Crown Agent25 January 2005
[1] The appellant was convicted after trial by Sheriff and jury of an assault to severe injury, permanent disfigurement and permanent impairment. He has appealed against both sentence and conviction. It was conceded by the Crown that the sentence was incompetent, and it has accordingly been quashed. However, the appeal against conviction remains for consideration. [2] The complaint against the Sheriff is that he trespassed upon the province of the jury as masters of the facts, impressing his view of the case upon them, both by what he said, and in the manner in which he said it, insofar as he made comments upon the conduct of the defence case and the defence evidence. [3] The case was concerned with a serious assault on the complainer outside a public house in Falkirk. The defence was in essence that the appellant was not present when the assault took place, and that in any event, the complainer was the author of his own misfortune by being the aggressor. Evidence was led for the Crown which, if accepted, (as it was) was sufficient to prove the case against the appellant as the assailant. For the purpose of this appeal it is unnecessary to rehearse that evidence. [4] Evidence for the appellant came from the appellant himself and from three men, McDonald, Allardyce and McFarlane. The appellant gave evidence in support of his alibi and of the allegation that the complainer was the aggressor, and the other men gave evidence to much the same effect. The Sheriff in his charge to the jury deals with this body of evidence on pages 20-22 of the transcript. It was submitted that this was done in a manner prejudicial to the defence. There were essentially four grounds of criticism in the submissions made to us. First, it was said that the Sheriff made a remark about the appellant's evidence suggesting a measure of scepticism in the view which he had formed of it. The appellant had said that he left the area of the public house by taxi and the Sheriff commented:"he has a very beneficial arrangement for transport you might all think if he can call a free taxi when it is convenient to him".
Second, with regard to the other defence witnesses, the Sheriff repeatedly used the word "apparently" when summarising their testimony, thereby again suggesting a measure of reservation on his part about their evidence. Third, in discussing the evidence of Allardyce and McFarlane, the Sheriff referred to certain observations of these witnesses as "curious". Finally, it was submitted that these comments taken along with the intonation and manner in which they were expressed by the Sheriff must have given the jury the impression that the Sheriff did not favour the evidence for the defence. This was prejudicial and resulted in a miscarriage of justice.
[5] We have examined the transcript of the charge and have listened to the recording of the Sheriff's voice. In our opinion, there is no substance in any of these criticisms. At an early stage in his directions, the Sheriff made it clear that the assessment of the evidence was for the jury alone, and with regard to his summary of the defence evidence, we observe that the Sheriff stated to the jury that the evidence of the supporting witnesses "confirmed" the appellant's evidence. As far as the detailed criticisms which we have noted, the remark about "the beneficial arrangement for transport" seems to lack context but in his report the Sheriff states that this was an observation on some evidence given by the appellant about a private arrangement of an innocuous kind between him and McDonald, the taxi driver, regarding the use of the latter's taxi. We see no merit in the complaint that the Sheriff used the word "apparently" when summarising the evidence of these witnesses. The use of this word in our experience is not infrequently met in the directions of judges and is usually, and in this case definitely, to be denoted as neutral in its effect. The remaining criticism relates to a particular parts of the evidence of Allardyce and McFarlane being described by the Sheriff as "curious". There is always a risk that a judge in his charge may stray into comments about a witness's testimony and that these will be put, as it were, under the microscope under appeal. For this reason such comments are perhaps best avoided. But in this case the comment did not relate to a matter which was in any way material to the determination of the central facts in the case.Finally, having listened to the part of the charge to which exception has been taken, we can discover nothing in the intonation or manner in which he spoke which could conceivably indicate that the Sheriff was hostile to the defence witnesses.
[6] For these reasons the appeal against conviction is refused.