Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2007/HCJAC_51.html
Cite as: 2007 GWD 30-517, [2007] HCJAC 51, 2008 JC 97, 2007 SCCR 363, [2007] ScotHC HCJAC_51

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Wheatley

Lady Paton

[2007] HCJAC51

Appeal No: XC797/04

OPINION OF THE COURT

Delivered by

LORD OSBORNE

APPEAL AGAINST CONVICTION

SASHA McLEAN

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Shead; Drummond Miller

Alt: Bell, Q.C., A.D.; Crown Agent

8 August 2007

The background circumstances
[1] The appellant in this appeal faced an indictment containing a single charge in the following terms:

"on 29 August 2003 at 1 Balmoral Place, Dundee and at Balmoral Place, Dundee you Sasha Linda McLean whilst acting along with another did assault Charli Lesley Fraser, born 6 September 1990, ... and did seize her by the hair, repeatedly punch and kick her on the head and body and drag her down a flight of stairs all to her severe injury, permanent disfigurement and permanent impairment."

After trial, on 17 August 2004, the appellant was found guilty by a majority verdict of the jury of an amended charge, but also under deletion of certain words. The words: "and drag her down a flight of stairs" were deleted by the Crown by amendment. The jury deleted the words "permanent disfigurement". Hence the terms of the charge on which the appellant was convicted were as follows:

Following conviction, on 7 September 2004, the sheriff, Sheriff Richard Alexander Davidson, sentenced the appellant to eighteen months imprisonment.

[2 ] The jury in this case had been empanelled on 12 August 2004. Shortly thereafter and before any evidence was led, the solicitor for the appellant tendered a plea of guilty to the charge under deletion of the words "whilst acting with another" and under deletion of "punch and", "head and", and "drag her down a flight of stairs all to her severe injury, permanent disfigurement and permanent impairment". This plea was recorded, but was not accepted by the Crown. Accordingly the trial proceeded.

[3 ] On 17 August 2004, following the conclusion of the leading of evidence for the appellant, the solicitor for the appellant tendered a plea of guilty in terms of the libel, as amended, but under deletion of the word "severe" and under deletion of the words "permanent disfigurement and permanent impairment". In view of the amendment previously made by the Crown, that meant that the appellant was tendering a plea of guilty to the effect that, "whilst acting along with another", she "did assault Charli Lesley Fraser ... and did seize her by the hair, repeatedly punch and kick her on the head and body all to her injury ...". That plea was not accepted by the Crown. Accordingly the trial then proceeded with the addresses to the jury by the procurator fiscal depute and the solicitor for the appellant. At the close of the address by the solicitor for the appellant to the jury he indicated to them that he was inviting them to find the appellant guilty under deletion of the words "severe" and "permanent disfigurement" and "permanent impairment".

[4 ] Against the foregoing background, the sheriff delivered a charge to the jury in unusual terms. In a passage beginning at page 3 of the transcript of his charge he said:

"Now, as I think may have become clear to you this has developed into a fairly unusual case and this is now going to be a fairly unusual charge and normally I would be advising you about how to go about deciding whether an accused person was guilty or innocent of a particular crime. In the present case, however, through Mr McIlreavy Miss McLean has made it clear that she accepts that she assaulted Charli Fraser on the date concerned and that what you are asked to decide essentially is the extent of her guilt. So, all the usual considerations, with due respect to Mr Cobb, about the presumption of innocence and the need for corroboration do not apply here because the essential elements of any assault charge as he said to you are that an act amounting to an assault took place, and we are quite clear that Miss McLean accepts that at some stage I think as I understand it at the close mouth or near the street outside 1 Balmoral Place, Dundee she kicked Charli Fraser a number of times, and so there is an act of assault, and secondly of course that Miss McLean perpetrated such an act, and these two matters are admitted. So, proof beyond reasonable doubt and corroboration and all those considerations no longer are required."

Furthermore, at pages 37 and 38 of the transcript of his charge, the sheriff went on to say:

"It is my direction to that (sic) you must return a verdict of guilty under the deletion of the word 'severe' and under deletion of the two aggravations, permanent disfigurement and permanent impairment, for that is Miss McLean's position ...".

The grounds of appeal
[5 ] The appellant has tabled eight grounds of appeal. For the present purposes it is necessary to quote only grounds 1, 2 and 8. These are in the following terms:

"The sheriff misdirected the jury in the following respects:

(1) The jury were told that they did not require to apply the principles of the presumption of innocence or corroboration (p.3). Despite the fact that the appellant accepted through her agent that she should be convicted of assault it was still for the Crown to prove her guilt on corroborated evidence.

(2) In any event it was wrong to suggest that it was not for the jury to consider whether the charge was proved beyond reasonable doubt (p.4). The Crown could not bring home the libel against the appellant without the jury applying that standard of proof.

...

(8) By directing the jury that they must convict the appellant in the terms referred to at page 37. The direction was contradicted almost immediately by reference to the issue of concert at page 38."

The present appeal
[6 ] When this case came before the court for a hearing, the Advocate depute on behalf of the Crown, indicated that the Crown did not seek to support the appellant's conviction, in the light of the misdirection of the jury by the presiding sheriff. In the subsequent discussion of the position of the Crown, it was made clear to us that among the misdirections of the jury which had influenced the Crown in adopting the position that they had were the misdirections that were focused in grounds of appeal 1, 2 and 8, although the Crown had also taken account of the other misdirections focused in the other grounds of appeal. It was indicated by the Advocate depute that, in the view of the Crown, the sheriff had fundamentally misapprehended the effect of the pleas of guilty tendered on behalf of the appellant, to which we have referred. However, the Advocate depute made clear that he contended that, in the light of the position of the appellant, as expressed in the pleas which she had tendered, the miscarriage of justice resulting from the sheriff's misdirection affected only the conviction in the terms returned by the jury. There ought to be substituted for their verdict a conviction of assault in the lesser terms accepted by the appellant. With that latter position counsel for the appellant agreed. It was thus a matter of agreement that the conviction returned by the jury should be quashed and that there should be substituted for it a conviction to the effect that, at the time and place in question, the appellant assaulted the complainer and "did seize her by the hair, repeatedly punch and kick her on the head and body all to her injury, ...". If that course were taken, it was a matter of agreement that the sentence imposed by the sheriff would also require to be quashed and an appropriate sentence substituted for it. Since we were in agreement with the position taken up by the Crown in relation to the appellant's conviction, we followed the course suggested, substituting a conviction in the agreed terms. We also quashed the sentence imposed by the sheriff, substituting for it a sentence of ten months imprisonment, which was ordered to run from the 7 September 2004, as was the previous sentence.

Some observations by the court
[7 ] It is quite plain from what was said by the sheriff at pages 3, 4 and 37 of his charge that he fundamentally misapprehended the significance of the fact that, on the two occasions mentioned, pleas of guilty in certain terms were tendered on behalf of the appellant, but not accepted by the procurator fiscal depute on behalf of the Crown, during the course of the trial. As he put it at page 3 of the transcript of the charge: "So, all the usual considerations, with due respect to Mr Cobb, about the presumption of innocence and the need for corroboration do not apply here ...". Having taken that view, the sheriff failed to give the jury the usual directions concerning the onus of proof, the standard of proof, and the need for corroboration of the Crown case. In taking the course which he did, the sheriff failed to appreciate that there exists a long line of authority to the effect that a plea of guilty which had been tendered and rejected cannot be founded upon by the prosecutor. In this connection we refer to Cochran v Ferguson (1882) 5 Couper 169; Brown v Macpherson 1918 J.C. 3; Strathern v Sloan 1937 J.C. 76. This line of authority is referred to in Renton and Brown's Criminal Procedure, 6^th ed., para.24-08. It follows from those authorities that, where a plea of guilty has been tendered but rejected, the trial must proceed in the ordinary way. The presiding judge or sheriff must give the usual directions regarding the matters mentioned to the jury. In short, the Crown must prove its case beyond reasonable doubt by corroborated evidence and the jury must be so informed. It is regrettable that the sheriff did not appreciate that.

[8 ] It is, of course, the case that, in certain circumstances, a jury becomes bound to accept certain facts. In so saying we refer to the provisions of section 256(3) of the Criminal Procedure (Scotland) Act 1995. Section 256 provides as follows:

"256(1) In any trial it shall not be necessary for the accused or for the prosecutor -

(a) to prove any fact which is admitted by the other; or

(b) to prove any document, the terms and application of which are not in dispute between them,

and, without prejudice to paragraph 1 of schedule 8 to this Act, copies of any documents may, by agreement of the parties, be accepted as equivalent to the originals.

(2) For the purposes of subsection (1) above, any admission or agreement shall be made by lodging with the clerk of court a minute in that behalf signed -

(a) in the case of an admission, by the party making the admission or, if that party is the accused and he is legally represented, by his counsel or solicitor; and

(b) in the case of an agreement, by the prosecutor and the accused or, if he is legally represented, his counsel or solicitor.

(3) Where a minute has been signed and lodged as aforesaid, any facts and documents admitted or agreed thereby shall be deemed to have been duly proved."

If the procedure envisaged in that section is operated then the facts agreed are deemed to have been duly proved. It is accordingly not open to a jury to reject any such facts. In this connection we refer to Kerr v Her Majesty's Advocate 2004 S.C.C.R. 319. However, it must be clearly understood that anything short of the statutory agreement in terms of section 256 of the 1995 Act does not supersede the requirement for proof.

[9 ] Finally, in a case such as the present, where an accused person accepts a measure of guilt, which position may be reflected in a plea tendered but not accepted, we should say that it may be quite appropriate for the position of the accused, as reflected in such a plea, to be drawn to the attention of the jury, as was done in this case by the solicitor acting for the appellant. The presiding judge or sheriff may also draw attention to that position. However, the giving of that assistance to the jury by way of explanation of the accused's position cannot affect the fundamental principles of the law of evidence in relation to criminal trials that require the Crown to prove its case beyond reasonable doubt by corroborated evidence.