|
APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Johnston
Lord Nimmo Smith
C.G.B.Nicholson,
C.B.E., Q.C.
|
[2006] HCJAC 26
Appeal No: XJ668/05
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
APPEAL
by
STATED CASE
in causa
WASIM MOHAMMED ARSHAD
Appellant;
against
PROCURATOR FISCAL, Glasgow
Respondent:
_______
|
Appellant: G. Forbes; Balfour &
Manson
Respondent: J. Hamilton, A.D.; Crown Agent
1 March 2006
[1] This
is an appeal by way of stated case against a conviction at the Sheriff
Court in Glasgow in respect
of the following charge:
"On 4 March 2004 at 600
Aikenhead Road, Glasgow he did
without lawful authority or reasonable excuse have with him in a public place
an offensive weapon, namely a wooden truncheon;
Contrary to
the Criminal Law (Consolidation)(Scotland) Act 1995
section 47(1)" (the Act).
There is no appeal against
sentence.
[2] The
sheriff found the following facts admitted or proved:
"1. On 4 March 2004, around 4 p.m. Owen Gallagher, aged 47, an
assistant works manager, drove into the car park at Holyrood
Sports Complex, Aikenhead Road, Glasgow. He attended there to see a football match
between boys' teams from Holyrood School and King's
Park School. Kick-off was at 4 p.m.
2. Stephen Capaldi, aged 30, a teacher at
King's Park School, was in
charge of the King's Park team, which included the appellant
and the co-accused. Some of his team
arrived by car and some on the school bus.
Those boys who had come by car waited for the bus to arrive as there
were some boys (not from King's Park School) hanging
around in a threatening way. Before the
match Mr Capaldi's team were in their changing room with him. He waited until all of the boys in his team
had left the dressing room and proceeded on to the pitch before he locked up
the dressing room and followed them.
3. As Mr Gallagher arrived at the car park
within the Holyrood Sports
Complex he
saw between ten and twenty boys on the pitch being chased by a boy behind them
who was waving a baseball bat or truncheon (Crown Label number 1) from side to
side above his head as if he was going to assault someone in the crowd. The boy with the baseball bat or truncheon
was in a King's Park School football
strip and the King's Park team was scattered about the pitch. The boys being chased were not dressed in
football strips. The boy with the
truncheon was between 16 and 17 years old and Asian. The boys in the crowd were younger than the
King's Park boy with the truncheon. Mr
Gallagher immediately reported what he had seen to the manager of the sports
complex, Mr Newall.
4. The King's Park boy with the truncheon
chasing the boys not in
football strips was the appellant.
5. When Mr Capaldi exited from the
changing room, which is some
distance from the football pitch, an incident was taking place
in that between seven and eight boys, not from King's Park School and not in
football strips, were on the pitch. This
group was demonstrating menace towards the King's Park boys including the
appellant. His boys were still scattered
over the pitch. Both his team and the
other boys on the pitch were shouting at one another. Other boys, also not from King's Park School, were
standing on the sidelines but not shouting or threatening the King's Park
team. One of the King's Park boys had
something in his hand.
6. Mr Capaldi proceeded to the centre of
the pitch and saw that the
appellant and the co-accused were each holding something. He took Crown Label 1, a wooden truncheon,
from the appellant and Crown Label 2, a metal baton, from the co-accused and
gave them to the sports complex manager Mr Newall.
7. The appellant could have left the
football pitch and returned to the
changing room to attract Mr Capaldi's attention, before Mr
Capaldi came on to the pitch.
8. The police were called and arrived just
before half-time. During half-
time police officers interviewed Mr Gallagher, Mr Capaldi, Mr
Newall, the appellant and the co-accused.
The truncheon and baton were seized as productions.
9. On 4 March 2004 at Holyrood Sports
Complex Aikenhead Road,
Glasgow the
appellant had with him in a public place an offensive weapon, namely a wooden
truncheon without lawful authority or reasonable excuse in contravention of
section 47(1) of the Criminal Law (Consolidation)(Scotland) Act 1995".
[3] The
questions posed for the opinion of the court are as follows:
"1. Did I err in finding that the respondent
had disproved that the appellant had a reasonable excuse for having the
truncheon, namely self-defence?
2. Did I err in finding the appellant
guilty of the charge?"
[4] The
relevant section of the relevant Act is in the following terms:
"Any person
who without lawful authority or reasonable excuse, the proof whereof shall lie
on him, has with him in any public place any offensive weapon shall be guilty
of an offence, ... ".
[5] Opening
the appeal, counsel for the appellant informed the court that there was no
dispute for the purposes of this case between the appellant and the Crown as to
the issue of legal or evidential burdens.
It was apparent from the note attached by the sheriff to the stated case
that she had proceeded upon the basis that there was
only an evidential burden upon the appellant in relation to the issue of
reasonable excuse, which resulted in the Crown having to negative any
suggestion that was being put forward in support of that position. This, it was agreed, was an approach
favourable to the defence and the Crown were prepared to accept that position
in the context of this case, without making any general concession as to how
the questions of evidential and legal burden should be approached in questions
involving section 47 of the Act. The
advocate depute confirmed that was the case.
[6] At
the end of the day, before the sheriff, the issue appears to have been focused
on the question of self-defence as amounting to reasonable excuse and in this
respect the sheriff says as follows:
"Turning to
the question as to whether the respondent discharged the onus to disprove
self-defence, there was no dispute that the locus was a full sized football
pitch with fencing round it. Mr Capaldi
spoke of a menacing atmosphere before the game and of the other boys and his
boys on the pitch shouting at each other.
Mr Gallagher said that the appellant was chasing between ten and twenty of
the boys 'as if to hit people with it.'
He was so concerned that he immediately ran to the office of the
supervisor or manager (Mr Newall) to report what he had seen. Mr Capaldi said that there were around seven
or eight boys not from his school on the pitch shouting at his boys who were
shouting back. Accepting the evidence of
Mr Gallagher and Mr Capaldi, the Crown had proved that the incident took place
on a football pitch. The teacher in
charge of the team and a manager of the sports complex were within the
complex. I therefore considered that the
Crown had proved that the appellant could have run off the pitch or run to find
Mr Capaldi or staff at the complex, and that the danger was not as imminent,
urgent or serious such as to make it reasonable for the appellant to have the
truncheon for self defence."
[7] Finally,
the sheriff comments as follows on her approach:
"I may not
have said that I did not accept the appellant's evidence about the urgency of
his situation, or that it caused me to have a reasonable doubt about the
evidence of the Crown witnesses, but it must have been clear from the
conviction that I did not. Mr McCaig was
most helpful in his closing submission at the conclusion of the evidence in
setting out the three self-defence criteria and of course the appellant did not
require to establish anything. What the appellant said in his evidence did
not raise a doubt in my mind that the respondent had proved that there was room
to walk away and there were more of his own team there as well as Mr Capaldi
and Mr Newall and thus had negatived the special defence".
[8] Before
turning to the submissions of counsel it has to be noted that, firstly, the
entire issue before the sheriff in terms of reasonable excuse appears to have
been focused on the notion of self-defence and that, in effect, is the only
issue she decided in favour of the Crown for the reasons she gives in her note.
[9] Counsel
for the appellant before us accepted that he could not challenge the sheriff's
findings on the issue of self-defence but, in essence, his submission was that
given the facts, which were not seriously disputed, that the instrument in
question, to use a neutral word, was thrown to the appellant in the course of
the melee which is recorded in the findings in fact, any offence which might
have been committed was not to do with possession of an offensive weapon but
rather how it was used. This, it was
submitted, contradicted the important distinction made in the case of Glendinning v Guild 1998 S.L.T. (N) 252 that those two elements required to be
totally separated in terms of section 47 of the Act. Once, it was submitted, the use of the weapon
in question entered the scene as a matter of fact, the Crown had to determine
what offence should be charged in that respect and should depart from any issue
of simple possession in terms of section 47 which plainly directed the issue of
reasonable excuse to the reasons for possession rather than any issue of
use. Properly understood the section
should be looked at only in the context of a fact of possession of an offensive
weapon, which was not in dispute in this case in terms of its definition, and a
reasonable excuse for that possession.
Accordingly, it was submitted, while the sheriff may have been entitled
to determine the issue of self-defence on grounds of potential escape against
the appellant she had not properly addressed the issue as to whether or not
there was a reasonable excuse for being in possession of the instrument at the
material time, namely, when it first came under his control, which is generally
the sound ad hoc test of what is
meant by possession.
[10] The response of the advocate depute was very simple but
concise. There was no finding, he said,
in the case by the sheriff that there was a reasonable excuse for the
possession of the weapon at the material time, namely when it first came under
the control of the appellant. In the
absence of that and the fact that self-defence, which had been run as the only
answer, had been defeated in the mind of the sheriff, the court was left with
the simple proposition that the evidence revealed the possession of what would
have to be regarded as an offensive weapon at the material time by the
appellant and, accordingly, the conviction was justified.
[11] It has to be said that the findings of the sheriff are not
entirely satisfactory. If they are
supplemented by her note it seems that the eye-witness evidence establishes,
firstly, that when the appellant left the changing room he was not armed with
any weapon, and secondly he was subsequently seen pursuing people on the
football pitch armed with it. What
happened in between those events was said by counsel to be determined by the
evidence of P.C. Martin, but he was merely narrating what the appellant had
told him and, accordingly, how the instrument came into the possession of the appellant
has to be only related to the evidence of the appellant as recorded.
[12] The problem in this respect is that the sheriff has not made
any specific finding as to the credibility of the appellant. However, we consider it to be a reasonable
implication, having regard to the position that she reached on self-defence,
that she did not find his evidence acceptable, at least on the question of
reason for possession.
[13] It must be emphasised that the aim of section 47 is to deal
solely with a situation where a person is found in possession of an offensive
weapon, however that may be defined, and cannot offer any reasonable excuse, it
being for him to offer such in evidence and, thereafter, for the court to
consider whether such has been made out.
We accept that the issue of use is a wholly separate question in most
circumstances. It would have been more
appropriate if the sheriff had made a positive finding that she, in the absence
of self-defence, would not have found the appellant to have a reasonable excuse
for possession of the weapon once he obtained it. However, by implication we do not consider
this is fatal to the Crown's position.
[14] In simple terms we consider that this case can be decided by us
upon the basis that the facts stated yielded an argument before the sheriff
that self-defence was the justification and, thus, reasonable excuse for
possession of the weapon. She, quite
legitimately, rejected that and accordingly, upon the findings, there is no
other basis upon which any finding could be made supporting the idea of
reasonable excuse for possession.
Counsel did suggest we should remit the matter back to the sheriff for a
further determination of issues of credibility but we have not considered that
is appropriate or necessary.
[15] In these circumstances we consider, properly understood, that
the findings here do not support the view that, at the material time, namely
when he was seen with the weapon, the appellant had any reasonable excuse for
being in possession of it.
[16] In these circumstances we do not find it necessary to answer
question 1, but we will answer question 2 in the negative.
[17] Accordingly, the sentence imposed by the sheriff remains intact
and the case requires to be remitted back to the lower court to consider or
confirm the position in relation to sentence.
