Appellant: Mitchell; Paterson Bell

Respondent: Fairley QC, AD; Crown Agent

18 July 2013

[1] The accused was convicted after trial of charges 2,5,10,11, 12 and 13 on an indictment in respect of which he had tendered pleas of guilty to a further 5 charges at the conclusion of the crown case. The pleas of guilty were in respect of charges under the Road traffic Act 1988 and the Firearms Act 1968, the latter relating to the possession of a prohibited weapon in the form of a stun gun. Of the charges on which the accused was found guilty after trial, the significant ones for the purpose of the appeal were (a) hamesucken and abduction, in the course of which the accused assaulted the householder with a stun gun; and (b) possession of a firearm disguised as another object, namely, an electronic stun gun having the appearance of a mobile telephone.

[2] Four grounds of appeal were advanced: that the trial judge's directions on corroboration tended to suggest that the requirement for corroboration could be satisfied on the evidence of one witness alone; that the trial judge's directions on credibility and reliability in relation to the evidence of the householder James Nicholson, were unclear; that the trial judge erred in inviting the jury, when assessing whether the stun gun was "disguised", to consider their own impression of that item; and that the trial judge misdirected the jury that, on the charge of hamesucken, the defence of self‑defence was only available to the appellant if he believed that he was being subjected to a "potentially lethal attack".

[3] Apart from the cases referred to below, reference was also made to Brodie v HMA 2013 SCCR 23; A v HMA 2012 SCCR 384; Lienhe v HMA [2011] HCJAC 51; HMA v Withers 1947 JC 109; and Gemmill v HMA 1980 JC 16

[4] The relevant facts which the jury must have accepted can be briefly stated. The complainer owed money to the accused for a drug debt. In the middle of the night, the accused and a co‑accused forced their way into the house of the complainer, who was in bed with his girlfriend. The appellant assaulted the complainer by punching him and discharging the stun gun at him, injuring his face. The appellant had denied forcing his way in to the house, saying that he knocked, before entering the unlocked property in the dark. He claimed that he acted in self‑defence by punching the complainer who had leapt at him, with his hand in the air, causing the appellant to panic. The complainer fell to the ground on being punched. The appellant claimed that he was carrying the stun gun for self‑defence but did not use it. Indeed, the stun gun was not even switched on. The appellant's account was clearly rejected by the jury.

Ground 1
[4] The trial judge, in the course of his directions on corroboration, said the following:

"It is not every single aspect of the case, ladies and gentlemen, that has to be proved by corroborated evidence. But there are two matters which must be proved by corroborated evidence, and these are that the offence charged was committed, in its essentials, and secondly that the particular accused was responsible for committing it. And when I say 'that the offence was committed', I mean that the essentials of the offence have to be proved by corroborated evidence. You can be satisfied that details are proved on the evidence of one credible and reliable witness.

To give one example from a charge to which the second accused pled guilty, charge 7, dangerous driving, in that particular context, a jury could be satisfied, if they accepted the evidence, of some detail of the dangerous driving spoken to by one witness only"

[5] On behalf of the appellant, it was submitted that from this direction the jury might have concluded that the rule requiring corroboration could be satisfied on the evidence of one witness alone. The matter was compounded by the reference to a charge in respect of which the appellant had pled guilty. The misdirection was a material one, corroboration being a cornerstone without which the crown cannot obtain a conviction.

[6] It was originally contended that the trial judge was in any event incorrect to say that individual details of a charge of dangerous driving could be established on the evidence of one witness, but this position was departed from at the appeal.

[7] The advocate depute submitted that, read fairly, there had been no misdirection. The pleas had been tendered at a late stage in the case, in the presence of the jury, and certain deletions had been made to the dangerous driving charge. The jury had therefor seen the way in which details could be deleted from a charge, and it had not been unreasonable for the trial judge to use this as an example.

Discussion of ground 1
[8] It was submitted that there was a risk that the jury would think that there was no distinction between something which was "essential" and something which was a "detail", and that therefore the evidence of one witness alone would be enough to constitute proof on any of the essentials of a charge. We disagree. In the passage under attack, the trial judge was making a distinction between the essentials of a charge, which require corroboration; and details, which do not. His report makes it clear that these two matters were addressed in separate sentences, not together. It is trite to say that one requires to look at the charge as a whole. On doing so, one can see that the trial judge properly explained corroboration at page 7 of his charge where he said in terms that no-one can be convicted on the unsupported evidence of a single witness, however credible his or her evidence may seem to be. At p28 he made it quite clear that all essential facts of any crime require to be corroborated, emphasising that point again at p 29. This general explanation is followed up with a definition of each individual charge. In our view there was no risk of the jury being misled into believing that the essentials of any crime could be established on the evidence of a single witness.

Ground 2
[9] In the course of giving his evidence, the complainer Nicholson had certain parts of his police statement put to him for the purposes of comparing what he said there with what he had said in court, thus putting in question his reliability and credibility. He admitted having lied at a particular portion of his statement, and when pressed on the point of lying to the police, asserted that "90%" of his police statement was true. It is important to note that the only parts of the police statement which were before the jury were those in respect of which the witness was challenged. No parts of his statement which were consistent with his evidence were put before the jury, the trial judge having properly refused to allow such a course of action. The part of the charge which is attacked under this ground of appeal is as follows:

"You may think that James Nicholson was all too ready to disown passages in his police statement where that did not coincide with his recollection in the witness box; what you make of that is a matter for you. On the other hand, he asserted, and he was not challenged on this, that 90 per cent of his police statement was true. As a matter of law, ladies and gentlemen, civilian witnesses are not entitled to have copies of their police statements or to see their police statements before giving their evidence, and you may wish to bear that in mind when assessing their credibility and reliability, depending how old the police statements are".

[10] It was submitted that the trial judge ought to have directed the jury that when a witness has made a prior inconsistent statement, which he does not accept as having been true, it should not be accepted as truth of its contents but only for the purposes of reflecting on credibility and reliability. In the passage quoted above, the trial judge was inviting the jury to consider the effect of "90%" of the statement being true, and to use it to bolster credibility. The credibility and reliability of Nicholson being central to charge 2 (the hamesucken) this was again a material misdirection.

[11] The advocate depute submitted that there had been no misdirection, the trial judge having given clear directions overall on the use to which prior inconsistent statements might be put.

Discussion of ground 2
[12] Again, it is necessary to have regard to the charge as a whole. In the course of the charge (pp15-17) the trial judge gave detailed and accurate directions about the use to which a prior statement may be put. He distinguished between situations where a witness adopts the statement; where the witness can't remember; and where the witness denies what is in a statement, but the content is proved to have been said. He made it clear that, in contrast to situations in which the statement could be accepted for truth of its contents, the use to which a statement could be put in the latter situation was solely as a test of credibility and reliability. That is an absolutely clear and correct direction, and is precisely the direction which this ground of appeal says should have been given. Immediately after this direction, the trial judge linked this latter part of his directions with the witness Nicholson by saying "We have had more than one example of that with James Nicholson". In addition he went on to explain, in the same part of his charge, (p17) that any parts of a statement which a witness did not confirm were not evidence. In the context of the charge as a whole, and in particular the passages referred to here, it does not seem to us that the trial judge was inviting the jury to use the statement for any purpose other than looking at the credibility and reliability of the witness, and in particular he was not inviting the jury to use something which was not evidence, namely the remaining parts of the statement, to bolster the credibility of the witness. It is to be noted that the trial judge gave very careful directions about the approach which the jury should adopt in relation to the credibility and reliability of this witness at pp 55‑59. He pointed out that an issue arose regarding the credibility and reliability of the witness; marked that by saying "And then if you accept the evidence of James Nicholson and Natasha Love, I emphasise 'if', a big 'if',"; and reminded the jury that there were many reasons advanced for disbelieving Nicholson. In the context therefore of the whole charge, it is impossible to read the passage complained of as inviting the jury to consider evidence which was not before them to bolster the credibility of Nicholson in any way.

Ground 3

[13] This relates to charge 5, which was a charge of possessing a firearm disguised as another object, namely "an electronic stun gun having the appearance of a mobile telephone". It was not disputed at the trial that the item in question was a stun gun and that it had the appearance of a crude mobile phone. It was argued that, having apparently been manufactured in this way, it could not be said to be disguised. Expert evidence had been led as to the nature and functions of the object in question. The trial judge notes that it was for the experts to instruct the jury as to the appearance and functions of the item and then for the jury to determine whether it was "disguised". They were specifically told that any object of real evidence is only evidence to the extent referred to in a joint minute or spoken to by a witness (pp17‑18). The trial judge directed the jury that they required to take into account the evidence given by the experts, adding:

"But the matter is entirely one for your judgement interpreting what you have seen of the object in the photographs and on the viewing screen, and possibly when handled in the witness box, in light of the descriptions given by the witnesses as to the appearance and functions of the object".

[14] It was submitted that the trial judge was there inviting the jury to base their conclusion on their own assessment of the item. This was not a permissible approach - see Irvine v Donnelly 2012 SCCR 486

[15] The advocate depute pointed out that there had been several sources of evidence in relation to the stun gun. First, the complainer who described it as an imitation of a mobile phone; secondly, two forensic scientists led by the crown who referred to it as an electronic stun gun which had the external appearance of a crude mobile phone; and thirdly, a defence expert who also said that it looked like a mobile phone. Reference was made to Steele v HMA 1992 SCCR 30.

Discussion of ground 3
[16] Ultimately the question whether the item was disguised or not was a matter for the jury. The direction in question did no more than explain that they could use what they saw of the object in their assessment of the expert evidence about it. There was no dispute that the item in question was a stun gun. The jury heard evidence about its appearance as a mobile phone and could test that against what they saw when handling it. Irvine v Donnelly and HMA v Steele are both authorities for the proposition that a jury would be entitled to proceed in this way. This is a wholly technical ground of appeal with no merit whatsoever.

Ground 4
[17] The appellant had denied forcing his way into the house, claiming that, having knocked and entered through an unlocked door, he was met with the complainer rushing at him, arm held high. In order to defend himself against an apprehended attack, he punched the complainer who thus fell to the ground. He denied using the stun gun and it was never suggested that use of the stun gun had occurred in the course of self‑defence. The issue was limited to that of punching the complainer. In this regard, and on the hypothesis that the jury accepted that the appellant had not forced his way into the house, the trial judge gave appropriate general directions on self-defence which were not criticised.

[18] However, the trial judge went on to direct the jury in the following terms:

"if you find that there was forced entry and that the purpose was criminal, then I direct you that the legal defence of self-defence is not available to the second accused unless Ross Walker reasonably believed that he was subject to a potentially lethal attack."

[19] It was argued that there was no warrant for requiring the appellant to apprehend a potentially lethal attack before self-defence could be considered. This was a material misdirection going to the heart of the defence.

[20] The Crown conceded that this was a misdirection, but maintained that there had been no miscarriage of justice. Self‑defence had been advanced only in relation to the punch, and on an account which denied either forcing a way in to the house or using the stun gun. The jury having clearly rejected that account, there had been no miscarriage of justice.

Discussion of ground 4
[21] The trial judge explains that he gave this direction on the view that, in the event that the appellant had forced his way into the house for a criminal purpose, there nevertheless remained scope for a defence of justifiable violence in self‑defence by the appellant. But the scope thereof had to be narrow: nothing short of an attack by James Nicholson on the intruder that was significantly disproportionate to the threat constituted by the appellant's intrusion could be capable of providing justification in law. To mark this, he used the phrase potentially lethal attack.

[22] In our view the trial judge did indeed fall into error. However, his error lay in concluding that the issue of self‑defence arose at all on the facts of the case, if the hypothesis were that the appellant had forced entry to the house, in the middle of the night and for a criminal purpose. A householder faced with a violent intrusion into his house in the middle of the night is entitled to be apprehensive of violence and to offer resistance to that. The violent intrusion into the house in these circumstances had to be interpreted as a threat of violence, against which the complainer would have been entitled to respond to defend himself. Accordingly, if the complainer "leapt at" the accused, especially without touching or hurting him, he was perfectly entitled to do so, and any action on the part of the accused was merely carrying out, or carrying on, the violence initially apprehended by the complainer. In our view, self‑defence would only arise in such circumstances if the complainer had acted totally out of proportion to the violence offered to him, in which case only the intruder would in turn be entitled to defend himself. The question, however, would be whether the retaliation of the complainer was so excessive that the intruder was entitled to defend himself by further violence. We stress that this is not a case of mere defence of property: the householder was entitled to apprehend a threat of violence from the appellant and to act to defend himself. It seems to us that the trial judge's attempt to limit self‑defence in the circumstances to a potentially lethal attack arose from his misconception that self-defence had entered the picture at all, on the hypothesis under consideration. Had his direction ended at the words "not available to the second accused" he would have been correct. Accordingly, there was a misdirection, but it was a misdirection which caused no prejudice to the accused and left open a defence which should not have been considered in the circumstances. Accordingly, there has been no miscarriage of justice.

Decision
[23] For the reasons given above the appeal will be refused. We would only wish to add that this appeal is a classic case of fastening on isolated parts of a charge and subjecting those parts to meticulous examination without considering the context of both the charge as a whole and the trial to which it relates. That this is an illegitimate approach should not require repeating.