Scottish High Court of Justiciary Decisons

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Cite as: [2005] HCJAC 31, [2005] ScotHC HCJAC_31

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JISCBAILII_CASE_CRIME SCOTLAND

Galbraith v. Her Majesty's Advocate [2005] ScotHC HCJAC_31 (09 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Macfadyen

Lord Kingarth

[2005HCJAC31]

Appeal No: XC1337/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

in

APPEAL AGAINST CONVICTION

by

MARGARET GALBRAITH

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Miss Ogg, solicitor advocate; McCourts, Edinburgh

Respondent: Di Rollo, Q.C., A.D.; Crown Agent

9 March 2005

[1] The appellant was convicted in the Sheriff Court, along with the co-accused Vickie Lyon, of a charge of assault to severe injury and permanent disfigurement. According to the terms of the charge of which she was convicted, she struck the complainer on the head with a bottle, repeatedly struck her on the head and body with a broken bottle, pushed her against a wall and repeatedly punched and kicked her about the head and body.

[2] The Crown case against the appellant was based on the evidence of the complainer and two eyewitnesses. The complainer gave evidence that the appellant assaulted her in the various ways libelled. The other witnesses did not see the appellant use a bottle to strike the complainer. However, one of them gave evidence that after the incident the appellant and the co-accused had blood on them. Medical evidence was given as to injuries which the complainer had sustained to her scalp, forehead, mouth, right hand and right forearm.

[3] The Crown also relied on what was said by the appellant in the course of an interview, the transcript of which was before the jury. In the course of the interview the appellant accepted that she was involved in an incident with the complainer, but she rejected the suggestion that she at any time used a bottle. She said that she attacked the complainer after finding out that the complainer had become involved with her boyfriend. She grabbed the complainer by the hair, and punched and kicked her. She admitted running up to the complainer and kicking her in the mouth. She accepted that she had had blood on her hands.

[4] It is not in dispute that the appellant's statement was a mixed statement. The sheriff gave the following directions to the jury in regard to the statement (page 22 of the transcript):

"You have already heard some reference to what is called in law a mixed statement and you will have noticed that when the accused Margaret Galbraith was speaking to the police she said some things which are capable as being interpreted as pointing to her innocence of certain aspects of the attack and some which are capable of pointing to her guilt. You should therefore consider the whole of those statements, both the parts which point to the accused's guilt and those which do not, and determine whether the whole or any part of what the accused said is accepted by you as the truth. The interpretation to be put on what the accused said is a matter for you"

[5] Miss Ogg, who appeared for the appellant, accepted that, as far as they went, these directions were in accordance with Morrison v H.M. Advocate 1990 JC 299, in respect that the sheriff directed the jury that the statement was admissible as evidence of the facts contained in it and that it was for the jury to determine whether and to what extent it was the truth. However, the sheriff failed to give directions to the jury as to what they should do in regard to the exculpatory part of the statement, that is to say, if they accepted that part as the truth or, if in any event it created a reasonable doubt as to the guilt of the appellant in regard to part of the libel. She emphasised, under reference to Scaife v HMA 1992 SCCR 845 and Smith v HMA 1994 SCCR 72, that it was for the sheriff to set out clearly what the jury should do in either eventuality.

[6] We are not persuaded that the sheriff failed to give adequate directions to the jury. The present case is not similar to Scaife v H.M. Advocate or Smith v H.M. Advocate, in which the jury had merely been directed that they could take the evidence of the appellant's answers into account without being further told what they were entitled to do with that evidence. Furthermore, as is pointed out in McLeod v H M Advocate 1994 SCCR 528 at pages 535F and 537D, the critical question is whether the directions given in a particular case amount to sufficient compliance with what was said in Morrison. This should be determined by having regard to the terms of the charge as a whole. In Irvine v H.M. Advocate 2000 SCCR 234 the court observed at page 237D that it was recognised that slavish adherence to the Morrison formula was not required. A similar approach has been taken to the evidence of the accused in the witness box (Meighan v H.M. Advocate 2002 SCCR 779).

[7] In the present case the sheriff pointed out (at page 10 of the transcript) that the accused did not have to prove her innocence and might elect to put the Crown to the proof of her guilt. She went on to state: "The Crown itself must prove its case beyond reasonable doubt. If you have a reasonable doubt about that, whatever causes you to have that doubt, then the accused is entitled to the benefit of the doubt and she must be acquitted". Later in her charge the sheriff stated (at page 25 of the transcript):

"If you decide to convict the accused of a particular charge you can do so exactly as it is charged or under deletion where you think that part of a charge has not been established to your satisfaction beyond reasonable doubt"

[8] In a straightforward case like the present the jury cannot have been in any doubt as to how they should treat the exculpatory part of the appellant's statement. They would have understood that if they accepted it as the truth, or if at any rate it created a reasonable doubt as to the guilt of the appellant in respect of the part of the charge to which it related, they should not convict the appellant in that respect.

[9] The appeal against conviction is refused.

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