Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2013/2013HCJAC72.html
Cite as: 2013 GWD 23-438, [2013] ScotHC HCJAC_72, 2013 SCL 737, [2013] HCJAC 72

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Mackay of Drumadoon

Lord Hodge

Lord Wheatley

[2013] HCJAC 72

Appeal Nos: XC448/12 and XC454/12

OPINION OF THE COURT

delivered by LORD HODGE

in

NOTES OF APPEAL AGAINST CONVICTION

by

PAUL GEORGE McKAY and STEPHEN JOHN McKINNEY

Appellants;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Keenan, solicitor advocate; Wilson McLeod

Souter, solicitor advocate; C & N Defence

Respondent: Wade; Crown Agent

19 June 2013

[1] On 3 August 2012 the appellants were convicted by a majority verdict of the jury at the Sheriff Court at Edinburgh on this amended charge:

"(1) on 11 March 2012 at G3, Hutchison House, Moat Drive, Edinburgh you PAUL GEORGE McKAY and STEPHEN JOHN McKINNEY did assault Henry Archibald, c/o Lothian and Borders Police, Edinburgh and did repeatedly strike him on the head and body with a meat cleaver and a screwdriver all to his severe injury, permanent disfigurement and to the danger of his life

you PAUL GEORGE McKAY did commit this offence while on bail, having been granted bail on 23 November 2011 at Edinburgh Sheriff Court."

[2] Both appellants appealed against their conviction on the ground of miscarriage of justice. Mr McKay's first ground of appeal was that Sheriff McIntyre misdirected the jury because he did not recognise that a statement by a Crown witness, Rachel Tracey Louise McHugh, was a mixed statement and direct them accordingly. We granted Mr McKinney leave to advance a similar ground of appeal. Mr McKay also appealed on the basis that the learned sheriff's direction to the jury concerning the evidence of Ms McHugh lacked balance, because it failed to mention, or give sufficient emphasis to, aspects of her evidence that were helpful to the defence. Mr Keenan, for Mr McKay, referred to McCutcheon v HM Advocate 2002 SCCR 101 and Shepherd v HM Advocate 1996 SCCR 679.

[3] Mr Soutar, for Mr McKinney, adopted Mr Keenan's submissions and linked his ground of appeal, that the sheriff had failed to mention Ms McHugh's evidence that Mr McKinney was apparently unarmed when she saw him leave Mr McKay's flat, to the submission, which Mr Keenan had made, that there had been a lack of balance in the sheriff's presentation to the jury of Ms McHugh's evidence.

[4] The advocate depute conceded, correctly in our view, that Ms McHugh's statement had contained some exculpatory material in the context of a special defence of self-defence, as well as incriminating material, and that the sheriff ought to have directed the jury on the basis that it was a mixed statement. She submitted however that that had caused no miscarriage of justice as the only defence, that of self-defence, could not have succeeded.

[5] The incident on 11 March 2012 began when the complainer, Mr Archibald, and Mr Derek Hogg, who were armed with knives or similar weapons, banged on the door of Mr McKay's flat, shouting "YNT ya bas". Later Ms McHugh heard the appellants come out of Mr McKay's flat. She looked through the peephole in her front door and could see Mr McKinney's face as he descended the stairs. She did not see Mr McKay and did not see the appellants carrying weapons. But she did not give evidence that they were unarmed. She had only a partial view of Mr McKinney as he descended.

[6] There was evidence from which the jury could infer that the appellants were looking for the complainer and Mr Hogg (a) as they associated the latter with "YNT" as he came from Niddrie and (b) as the incident in which the complainer was seriously injured took place on the landing outside Mr Hogg's flat, which was one floor below the flats which Ms McHugh and the appellant, Mr McKay, occupied.

[7] In the incident the appellants used a meat cleaver and a screwdriver to inflict serious injuries on the complainer. There was evidence that Mr Hogg retreated into his flat and shut the door, leaving the complainer on the landing with the appellants.

[8] Ms McHugh in her evidence accepted the accuracy of the statements she had made to the police after the incident when the police detained the appellants in her flat. Her statement included several incriminating comments which she heard one or other of the appellants make when they came to her flat after the incident. Those comments included a discussion of the seriousness of the complainer's head injury and a fear of being charged with attempted murder. In a part of her police statement, which Ms McHugh accepted was accurate in her evidence, she stated that one of the appellants said to the other that when they went to Mr Hogg's door "Derek and Henry jumped out with machetes".

[9] The sheriff's failure to refer to this statement and his treatment of Ms McHugh's evidence of what the appellants said to each other as purely incriminatory was a misdirection.

[10] In our opinion, however, there was no miscarriage of justice. In our view there was no prospect of the defence of self-defence assisting the appellants by creating reasonable doubt in the minds of the jury. We recognise that the evidence that the complainer and Mr Hogg emerged from Mr Hogg's flat carrying machetes would suggest the first element of self-defence, namely that the appellants were attacked and were in imminent danger. But there was no evidence in the case to support the other two elements of self-defence. Those elements are (1) that the violence used was as a last resort and that all safe means of escape had been taken, and (2) that the person pleading self-defence used only reasonable force in his defence. On the contrary, the obvious inference from the evidence was that the appellants went armed to Mr Hogg's flat to confront him and Mr Archibald. The injuries which they inflicted on the complainer were not consistent with the use of reasonable force. The sheriff charged the jury correctly on the elements of self-defence. In our opinion that defence, as the advocate depute submitted, was bound to fail.

[11] Other than the misdirection on the mixed statement, we detect no lack of balance in the sheriff's presentation of Ms McHugh's evidence. The sheriff pointed out to the jury that Ms McHugh had seen the complainer and Mr Hogg armed with weapons outside Mr McKay's door before the incident. He also referred to evidence that Mr McKay had what appeared to be defensive injuries to his hands after the incident. He had no reason to refer to Ms McHugh's evidence that she had gained only a partial view of Mr McKinney as he descended the stairs. That did not support an inference that the appellants were unarmed.

[12] We therefore refuse the appeals.

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