APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon Lord Bonomy Sheriff Principal Lockhart	[2012] HCJAC 67 Appeal No: XJ73/12 OPINION OF THE COURT delivered by LORD BONOMY in APPEAL AGAINST CONVICTION AND SENTENCE by STATED CASE BY ROSS CARTNER Appellant; against PROCURATOR FISCAL, AYR Respondent: _______

Appellant: Shead; Levy & McRae, Glasgow

Respondent: Wade, A.D.; Crown Agent

16 May 2012

Background

[1] After trial on 21 and 22 November 2011, the appellant was convicted by the sheriff of a charge of assault in the following terms:

"on 24 December 2010 outside the Black Bull public house, Earl Grey Street,

Mauchline you ROSS CARTNER did whilst acting along with another, assault Scott Donald Biggart, care of Strathclyde Police, Kilmarnock and did repeatedly punch him on the head, knock him to the ground, kick him on the head and body and pursue him when he tried to escape, all to his injury".

On the motion of the Procurator Fiscal Depute at the close of the Crown case, the original libel was amended by deletion of the word "repeatedly" before the reference to kicking on the head and body and by the further deletion of "and repeatedly strike him on the head and body with your knee" immediately after the reference to kicking on the head and body.

[2] The sheriff made the following findings-in-fact:

"(1) On 24th December 2010 about 12.35am the appellant was in the Black Bull Public House, Earl Grey Street, Mauchline. Also present was the complainer Scott Biggart. They were not in each other's company.

(2) For no apparent reason the complainer verbally abused the appellant calling him a 'polis bastard' and 'fucking policeman cunt' as well as other expletives.

(3) The appellant asked the complainer to speak to him outside the pub.

(4) On exiting the pub the complainer punched the appellant in the face. A minor scuffle between the appellant and the complainer ensued.

(5) Witnesses Kevin Hunter and John Brown pulled the complainer away from the appellant to a distance of approximately fifty yards. The complainer continued to hurl abuse at the appellant.

(6) The appellant then walked towards the complainer. They grabbed a hold of each other and punched each other.

(7) The appellant then kicked the complainer on the head causing injury around his left eye.

(8) The complainer then walked away from the scene protesting that he had 'had enough'. The appellant pursued him as the complainer attempted to escape.

(9) Following the incident the appellant was angry with himself because he is a police officer. He made it known to friends at the scene that he should have shown restraint.

(10) The complainer had drank (sic) about twelve pints of lager from about 2.00pm on 23^rd December until about 1.00am on 24^th December 2010".

It can instantly be seen that these findings contain no reference to the appellant acting along with another, knocking the complainer to the ground, or kicking the complainer on the body, or where on the complainer's body he was punched.

[3] In relation to conviction there were broadly two issues raised in the application for a stated case. The first related to the appellant's special defence of self defence. The sheriff had indicated that the incident should be viewed as consisting of two separate parts. The application stated that the sheriff had erred in law by excluding self-defence. In elaborating upon the point, this was said:

"In respect of the second incident, there was evidence that the appellant approached the complainer in an unaggressive and in an unconfrontational manner whereupon he was attacked again by the complainer".

The second issue related to the evidence supporting a finding of kicking. It was submitted in the application that the sole source of evidence of kicking was the complainer and that no reasonable sheriff could have concluded that the complainer was a credible and reliable witness on account of the contents of two prior inconsistent statements given in the course of the police investigation.

[4] Since the appellant considered that the first point was not adequately dealt with in the draft stated case and the second required an elaboration of the evidence not initially contained in the draft stated case, he proposed substantial adjustments to the draft, including a summary of the evidence of each of the witnesses and in finding in fact 6 the deletion of the second sentence quoted above and the substitution therefor of the following:

"The complainer punched the appellant again to the face. As the complainer went to punch the appellant on a further occasion, the appellant tried to grab the complainer's arms. The complainer continued to attempt to and did manage to strike the appellant as a result of which punches were exchanged between the complainer and the appellant. The complainer and appellant were separated. The complainer continued to shout threats and abuse at the appellant and the others present".

He also proposed the deletion of finding 7, and the substitution for finding 8 of the words:

"The complainer walked off down a lane. The appellant stood at the top of the lane".

[5] The revisals to findings 6, 7 and 8 were rejected by the sheriff as "not in accordance with the evidence". The proposal to add a summary of the evidence of each of the witnesses was refused on the basis that "it is not proper to record the evidence on which the findings in fact are based".

[6] When the stated case came before Lady Stacey on the appellant's application for leave to appeal, she remitted the stated case to the sheriff "in order that he may advise the basis in evidence for his decisions". She noted that he had declined to record the evidence and in so doing had not dealt with the matters sought by the appellant to be put under review, "namely that there was evidence that the appellant approached the complainer in an unaggressive manner, and that no other witness spoke of the appellant kicking the complainer". She considered it necessary to know if there was other evidence that the complainer had been kicked.

[7] In response the sheriff explained that he had decided that it was not appropriate to incorporate into the stated case "a recitation or resumé of the appellant's recollection of the evidence of the witnesses" in accordance with the opinions expressed in Pert v Robinson 1956 SLT 23. He then added:

"Notwithstanding the foregoing given that the first sift Judge has requested further information on two particular matters I comment on these as follows:-

(1) Evidence that the appellant approached the complainer in an un-aggressive manner.

My recollection is that the witness Kevin Hunter said that his friend the appellant had approached the complainer in this way. On the contrary, however, the defence witness Stewart Richmond's evidence was that the appellant walked towards the complainer and demanded to know 'what the fuck was that about'. I did not accept the evidence of Mr Hunter on this point. It was at odds with not only the evidence of Mr Richmond but also the evidence of John Brown and Alexander Jess who spoke to the appellant approaching the complainer while engaged in an argument with him following which punches were thrown.

(2) The only evidence that the appellant kicked the complainer came from the complainer.

I confirm that no witness apart from the complainer said that the appellant had kicked him on the face. While no corroborative evidence of the complainer's testimony on this point was required to make a Finding in Fact to this effect there was the agreed evidence of injury sustained by the complainer, consistent with his account, contained in the Joint Minute of Agreement".

That minute recorded that when the complainer was examined at hospital he was found to have a subconjunctival haemorrhage to the left eye. Having considered the sheriff's response, Lady Stacey granted leave to appeal.

[8] Apart from findings-in-fact the only additional material in the stated case relating to the sheriff's reasons for conviction are, firstly, a brief note following the findings, and secondly, his comments on the grounds of appeal. After identifying the significant witnesses, who were four friends of the appellant, his note is as follows:

"There was general consensus among the appellant's friends that initially the complainer had verbally abused the appellant before punching him. Equally there was consensus that the appellant had approached the complainer after they had been separated following the initial blow. No one denied that the appellant had then punched the complainer. I believed the complainer when he said he was kicked in the face by the appellant which kick resulted in the injury to his left eye area referred to in the Joint Minute of Agreement which was lodged in evidence. The complainer's evidence was that after the kick he said he had had enough. He said he was pursued by the appellant when he tried to escape. This was corroborated by witnesses Brown and Richmond which evidence I accepted. I accepted the evidence of Alexander Jess to the effect that after the event the appellant expressed regret and anger with himself for getting involved with the complainer".

In relation to the grounds of appeal he said this:

"i. I did not accept the evidence that the appellant approached the complainer in the way described or that at this stage the complainer initiated the fight. I did not accept that the force used by the appellant was not excessive - I did not accept he was then acting in self-defence.

ii. I did not reject all of the complainer's evidence save for him being kicked by the appellant. I accepted his evidence that after the first part of the incident had concluded he had been punched and kicked by the appellant who then pursued him as he tried to escape. The complainer's account of this was corroborated in part by Crown witnesses Brown, Jess and Richmond.

I accepted the complainer's evidence on oath that the appellant had kicked his head. Although he had told the police that he did not know whether the appellant or another had kicked him he explained that he now remembered things he had not been able to recall on the day of the assault due to concussion. His recall of the appellant wearing Timberland boots at the time of the kick enhanced his credibility".

Submissions

[9] Against that background it was the principal submission of Mr Shead, counsel for the appellant, that the stated case did not contain an adequately reasoned basis for the sheriff (i) accepting the complainer's evidence as credible and reliable on the crucial question of kicking, (ii) excluding the special defence of self-defence, (iii) convicting the appellant, and (iv) in particular for convicting him in terms which included acting in concert, knocking the complainer to the ground and punching him on the body. The sheriff had given no meaningful indication of how he had assessed the credibility and reliability of the various witnesses. That had to be explained properly and not simply dealt with in a perfunctory manner - Jordan v Allan 1989 SCCR 202 and Petrovich v Jessop 1990 SCCR 1. Parts of the sheriff's note and responses to the grounds of appeal were inconsistent with the proposed summary of evidence which he had rejected. He recognised that the Court could remit the stated case to the sheriff with instructions to elaborate upon the evidence but submitted that, since the sheriff had twice shown a distinct reluctance to do that, the appropriate course was to allow the appeal.

[10] In response the Advocate depute, who was unable to indicate what the attitude of the procurator fiscal depute had been to the proposal to adjust into the stated case a summary of the evidence, submitted that remitting the matter to the sheriff or continuing it would not only enable the sheriff to provide further detail but would give an opportunity to the procurator fiscal depute to report on the adjustment process. Were the Court to decide not to remit the matter, then her submission, under reference to Campbell v Vannet 1998 SCCR 207, was that the appeal should be refused since the complainer's evidence of having been kicked was adequately corroborated by the independent evidence of the injury around the complainer's left eye.

Discussion

[11] Pert v Robinson pertains to a time when the provisions relating to summary criminal appeals, and the practices followed by this Court, were different from those that apply today. It pre-dates by 25 years the introduction in 1980, by section 19 of the Criminal Justice (Scotland) Act 1980 ("1980 Act"), of the right of an accused person to seek acquittal at the close of the Crown case on the ground that there is insufficient evidence for conviction. It has been an inevitable consequence of that amendment that a stated case must contain an adequate account of the evidence to enable this Court to determine any appeal based on insufficiency of evidence. In such cases it has been standard practice since then for the sheriff to record the evidence as well as making findings in fact - see Wingate v McGlennan 1991 SCCR 133 at 135-136.

[12] Another example of circumstances in which a full account of at least certain parts of the evidence may be necessary is where the appeal is based on the absence of the necessary conjunction of testimony to satisfy the essential test of sufficiency, as in McDonald v Scott 1993 SCCR 78. That question may also arise in light of the terms of the ultimate conviction, which may involve deletion of certain parts of the libel, thus focusing attention on the sufficiency of the evidence for what remains.

[13] Part VI of Schedule 2 to the Summary Jurisdiction (Scotland) Act 1954, repealed following the 1980 Act by paragraph 4(2) of the Act of Adjournal (Procedures under Criminal Justice (Scotland) Act 1980 No.2) 1981, required that a stated case should:

"state concisely and without argument the nature of the cause and the facts if any admitted or proved in evidence, any objections to the admission or rejection of evidence taken in the proof, the grounds of the decision, and any

other matters necessary to be stated for the information of the superior court".

In terms of Rule 19.2(2) and Form 19.2-B of the Act of Adjournal (Criminal Procedure Rules) 1996, the provision applicable today, the court of first instance is required to:

"summarise the relevant charges;

state concisely the relevant procedural history of the proceedings;

set out in numbered paragraphs the facts admitted or proved;

where the appeal is against a decision on a submission of no case to answer, identify and summarise the Crown evidence and inferences drawn;

state the reasons for the decision with the reference to the evidence on which the facts were found admitted or proved, objections to the admission or rejection of evidence, the grounds of the decision, and any other matters necessary to be stated for the information of the superior Court".

The requirements of the modern stated case are thus significantly more elaborate than those of stated cases prior to 1980.

[14] Appeal by stated case is dependent upon the presentation to this Court, by the judge or judges of the court of first instance of an account of the material events of the trial, of the evidence led, and of the court's reasons for making the findings and decisions challenged so far as necessary to enable this Court properly to determine the matters raised for review in the application for the stated case. In the vast majority of stated cases that is what happens. We stress "necessary". We do not mean to suggest for one moment that, where a stated case involves a contention that there was insufficient evidence for conviction, every last word of evidence noted should be reported. The provision of unduly detailed and verbose accounts of evidence, occasionally in a fairly chaotic form, is, if anything, a more regular failing of stated cases than the failure to provide adequate material for this Court to determine the questions raised.

[15] The events of the present case are commonplace - a quarrel or barney between two people who had had too much to drink. It is plain from the findings-in-fact that the complainer was the initial aggressor and was persistently aggressive. There was also evidence from which, if believed, it could be concluded that the appellant was aggressive. That the situation was confused is confirmed by the statement in finding- in-fact 6 that, when the second part of the episode began, "they grabbed a hold of each other and punched each other". There is no finding that that punching was on the head as libelled. Against the background of a special defence of self-defence, it was incumbent upon the sheriff to explain why he considered that what the appellant did at that stage amounted to an assault. As Mr Shead conceded, that could have been because it was followed by a kick. However, the finding that the appellant kicked the complainer in the face was dependent upon the acceptance of the complainer's account as true and accurate. Standing the raising as an issue for review in the application for a stated case of the sheriff's basis for accepting the complainer's evidence of being kicked by the appellant, the sheriff was bound to explain why he accepted that part of the evidence of the complainer. In his note the sheriff said simply that he believed the complainer when he said he was kicked in the face by the appellant, and added that a later part of his evidence was corroborated by other witnesses. In his comments on the grounds of appeal he repeated that, and added reference, firstly, to accepting the complainer's explanation that he could not remember who had assaulted him at the time because of concussion and, secondly, to considering that his credibility had been enhanced by his recall of the appellant wearing Timberland boots. We note, however, forensic examination of the boots revealed nothing of assistance.

[16] Having carefully reread all that the sheriff has reported on this case, we are unable to understand on what basis he convicted the appellant of assault, whilst acting along with another, by punching the complainer on the head, by knocking him to the ground, and by kicking him on the body, since there is no specification of any of these in the findings-in-fact or in any of the explanations given. The sheriff has also given us no indication of the basis upon which he rejected self-defence. In addition, standing the submission to us that the complainer had on two previous occasions made statements to police officers inconsistent with his evidence that it was the appellant who attacked him, we do not consider that the sheriff has adequately explained why he accepted the evidence of the complainer about being kicked by the appellant as credible and reliable. The sheriff has failed to provide in the stated case and supplementary report an adequate account of the trial, the evidence led and his reasons for making the findings and decisions he made to enable this Court to determine the appeal.

[17] That we have good reason to be concerned about the absence of an adequate explanation for accepting crucial evidence of the complainer is confirmed by a perusal of the summary of the evidence included in the appellant's note of adjustments. There is no indication there of any witness other than the complainer stating that the appellant ran after him at the end of the incident. The summary of the complainer's evidence indicates that he denied abusing the appellant, claimed that he was first assaulted by being punched on the back of his head, and said in his initial statement that he was first assaulted by the appellant by being punched to the face as he was leaving the pub while he was between two sets of doors. He also denied punching the appellant outside the pub. We were initially reluctant to consider the terms of the rejected adjustments, but decided that it was appropriate in view of the erroneous basis on which they were rejected, and because the Advocate depute did not dispute that the complainer had given statements which were inconsistent with his evidence in a material respect and did not suggest that the summary of the evidence was inaccurate. That course was followed in Amoco v Frame [2008] HCJAC 49, 2008 SCCR 833, as explained at paragraph 28. Other examples of a similar course being followed can be found in Ballantyne v MacKinnon 1983 SCCR 97 and McDonald v Scott supra, in both of which adjustments were rejected for what the Court considered to be unsatisfactory reasons and in the latter of which the Lord Justice-General (Hope), in delivering the Opinion of the Court, at p.79E-F said this:

"That adjustment sought to add to the sheriff's note an account of the evidence. The purpose of it was to reveal that there was a sharp divergence between the evidence of the complainer on the one hand and the eyewitness on the other as a basis for the submission that there was insufficient evidence for a conviction...The sheriff ... goes on to say that he was satisfied on both the evidence of the complainer and that of Mrs Ross that, in the course of the struggle between the two women, the appellant had punched at the victim. When one examines the proposed adjustment, however, it appears that the accounts given by the complainer and Mrs Ross were of an entirely different character".

Decision

[18] Since the stated case and the sheriff's supplementary note are deficient in a number of important respects, and since that remains the case even after the sheriff has had two opportunities to correct them, we have decided that the appropriate course is to allow the appeal and quash the conviction rather than remit the matter to the sheriff again. We shall accordingly answer the second question - whether the sheriff erred in convicting the appellant of the charge as amended - in the affirmative and quash the conviction. In all the circumstances it is unnecessary to address the other questions.