Scottish High Court of Justiciary Decisons

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Cite as: 2017 SCL 982, [2017] ScotHC HCJAC_66, [2017] HCJAC 66, 2017 GWD 30-475

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Brodie

Lord Drummond Young

[2017] HCJAC 66

HCA/2017000002/XJ

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in the STATED CASE

following a REFERENCE from the SCOTTISH CRIMINAL CASES REVIEW COMMISSION

CAROL KIRK

against

PROCURATOR FISCAL, STIRLING

Appellant

Respondent

Appellant: S Collins (sol adv); Collins and Co (for McCready and Co, Stirling)

Respondent: I McSporran QC (sol adv) AD; the Crown Agent

29 August 2017

Introduction

[1] On 11 May 2015, at the Justice of the Peace court in Stirling, the appellant was

convicted of a charge which libelled that:

“on 29th April 2014 at… Cambusbarron, Stirling you…did assault CM…and did

repeatedly strike her on the body with a dog lead to her injury”.

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She was acquitted of a contravention of section 38 of the Criminal Justice and Licensing

(Scotland) Act 2010 involving threatening and abusive conduct on the same occasions. The

justice deferred passing sentence on the appellant for six months before, on 13 November

2015, admonishing her.

[2] On 20 November 2015, the appellant made a late application for a stated case based

upon a contention that the verdict was unreasonable because the complainer’s evidence was

contradicted by an audio recording taken by the appellant. On 30 December 2015, the

Sheriff Appeal Court refused the appellant’s application for an extension of time to lodge the

application on the basis that the appeal was “completely unarguable”.

Scottish Criminal Cases Review Commission

[3] The appellant asked the SCCRC to review her conviction on three grounds. The first

was that the identification evidence from an eyewitness was compromised by inappropriate

discussions which had taken place in the witness room at a calling of the case in November

2014. The Commission rejected this ground, primarily on the basis that identification was

not an issue. Secondly, it was said that the police investigation had been “irregular” as,

despite the fact that the appellant had telephoned the police herself, the investigating officer

had attended at the complainer’s house first, had failed to take a formal statement from the

appellant or her husband and had refused to listen to the recording of the incident which the

appellant had made. The Commission rejected this ground as unstateable. The appellant

had failed to identify how the role of the officer had impacted on either the Crown or

defence case.

[4] The third ground of review was that the justice had reached a decision that no

reasonable justice could have reached in acquitting the appellant of the section 38 charge

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(“statutory breach of the peace”), whilst convicting her of the assault. The Commission did

not accept this contention. However, the Commission went on to consider the explanation

which the justice’s legal adviser had provided to them setting out the basis for the verdict.

This stated:

“I noted that even if the defendant (sic) had meant to hit only the dog initially, the

complainer had been holding the dog. On my view the intent was there initially in

that it would have been difficult to ensure that only the dog was hit, under the

circumstances. The defendant in my view should not have hit out at the dog

precisely because she might have hit the other person and in fact the recording

distinctly recorded 4 strikes made against the complainer who was holding the dog.

You could hear the complainer screaming each time she was hit. Even if the

defendant had not intended initially to hit the complainer and only intended to hit

the dog the fact that the complainer was holding the dog by the collar and screamed

audibly in pain after the first strike connected with her hand meant that the

defendant would have known that she had made contact with the complainer and

she thereafter had the intent to strike her 3 more times using the excuse that she had

only meant to strike the dog. I found this to be a lie given that it would have been

obvious to the defendant that she had hit the complainer but she still thereafter

decided to continue striking said complainer…

I was therefore satisfied that the deliberate intention to assault was there with evil

and wicked intent… I did not regard the injury suffered by the complainer to have

been suffered accidentally”.

[5] Having analysed this passage, the Commission determined that the justice had

misdirected herself in concluding that the applicant had intended to assault the complainer.

The Commission interpreted the passage as meaning that the justice had accepted that the

appellant had, with both the first and subsequent strikes, intended to strike the dog and not

the complainer. That is a misunderstanding of the justice’s reasoning. Had it been correct, it

is true that the justice would have erred in holding that the necessary intent was present.

The Commission identified the justice’s finding, that the complainer had screamed in pain

after being hit, as a factor in her conclusion that the appellant had the necessary intent. The

screaming had been said to be audible on a recording made by the appellant on a

Dictaphone, which she had been carrying at the time of the incident. The appellant’s law

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agent had informed the Commission that “the disc contained within his file was the disc

played in court during the cross-examination of the complainer. The file … was … ‘played

straight from [the agent’s] machine rather than lodging a copy with the court’.” It is not

clear from this whether the file containing the recording was on a DVD (or other similar

device) inserted into the computer or stored on the computer’s hard drive. From the

discussion at the hearing and the minute of the JP court, the court assumes the former. The

Commission decided to listen to the recording but were unable to hear the screams to which

the justice referred in the explanatory letter. On this basis also, the Commission regarded

the justice’s reasoning as flawed. It was on these “narrow” bases, as the Commission

described them, that the case was referred.

The stated case and the DVD

[6] Following upon the reference, the appellant lodged a “Note of Appeal” against

conviction. By interlocutor dated 11 April 2017, the court directed that the Note of Appeal

be treated as an application for a stated case, since this was a summary prosecution. This

Note addressed only the question of whether the justice had erred in law in holding that the

appellant had the requisite intent even if she had only been trying to hit the dog. The issue

concerning whether the justice could have heard the screams on the recording was not

raised at all.

[7] In the stated case, the justice reports that the complainer’s dog had confronted that of

the appellant. In relation to what happened next, she found the following facts proved:

“17. While holding [her dog] by the collar the complainer was struck on the left

hand by the appellant several times using the metal part of the dog lead.

18. After each strike by the Appellant on the Complainer, the Complainer was

heard immediately screaming loudly on the Dictaphone recording.

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19. These screams by the Complainer were screams of pain, due to the injury

inflicted on her.

20. [The dog] was not struck by the Appellant …, only the Complainer was

struck.

21. The initial strike by the Appellant … was not intended to strike the

Complainer, but to strike the dog…

22. The second and subsequent strikes by the Appellant … were intentional by

the Appellant to assault the Complainer.

23. The complainer suffered bruising to her left hand…

24. On 29 April 2014 at… Cambusbarron… the Appellant did assault the

Complainer by repeatedly striking her on the body with a dog lead to her injury.”

[8] The questions in the stated case are:

“1. Standing finding in fact 23 (sic) did I err in law in determining that the

Appellant had the necessary mens rea for assault when she inflicted the first blow

upon the complainer’s hand?

On the facts stated was I entitled to convict the Appellant ?”

The reference to finding in fact 23 may have been intended as one to finding in fact 21 in the

final case. It was explained that an adjustment had been proposed by the appellant adding a

question: “On the evidence, was I entitled to make Findings in Fact 18 to 22 and 24 to 26?”

This again may be a reference to slightly different findings in the final case. The adjustment

was rejected by the justice because this issue was not something which was raised in the

application for the stated case (“the Note of Appeal”). The questions stated, which do not

seek to challenge any of the facts found, would normally not prompt any examination of the

evidence; the findings in fact found by the justice would be decisive. In summary

prosecutions, subject to there being supporting evidence, the trial judge is final on questions

of fact (Anderson v HM Advocate 1974 SLT 239, LJG (Emslie) at 240).

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[9] Nevertheless, the justice provided a narrative of the evidence. The complainer spoke

to the appellant striking her on the back of the hand with the metal clip that was attached to

her dog lead some 8 to 9 times before pulling herself together. This had caused extensive

bruising and swelling to her hand. In cross-examination, the appellant’s agent said that he

had a copy of a Dictaphone recording of the incident which he wished to play to the court.

This is referred to as Defence Production 1, but that is a transcript of the recording. It would

appear that the recording itself, in whatever physical form it was stored, was never formally

lodged as a label (cf the JP court minute). Its status appears to be simply as a recording used

to test the complainer in cross-examination. Had it been formally lodged, it would have to

have been appropriately marked by the justice or her legal adviser/clerk. The recording was

played to the complainer. The transcript refers to a female shouting in the background and

a dog snarling and barking. Otherwise it contains only words said to have been recorded.

[10] It was put to the complainer that there was nothing on the recording to demonstrate

that she had been assaulted by the appellant. However, the complainer said that:

“you can hear her on the tape hitting me 5 or 6 times, she was not hitting the dog, she

was hitting her (sic) with the lead.”

The justice, combining either what she or the complainer had heard on the recording and the

transcript, narrates the totality of the recording as including:

“The noise of something metal hitting another person’s skin several times … and the

victim immediately screaming out in pain each time she is hit.”

The justice describes the recording as quite harrowing in that the complainer could be heard

screaming each time that she was hit. The sound of the lead hitting the complainer could be

heard before each scream.

[11] A passer-by, and thus an apparently independent witness, said that she saw the

appellant hitting the complainer repeatedly, more than 3 to 4 times, with the lead. There

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were about 10 strikes. A police officer spoke to the bruising and swelling on the

complainer’s hand.

[12] The appellant denied hitting the complainer. She maintained that she had been

hitting the dog.

[13] The justice’s reasoning in the stated case is broadly as set out above (and largely “cut

and pasted”) as follows:

“Even if the Appellant had not intended initially to hit the Complainer and only

intended to hit the dog …the fact that the Complainer was holding … [the dog] by

the collar and screamed audibly in pain after the first strike connected with her hand

meant that the Appellant would have known that she had made contact with the

Complainer and she thereafter had the intent to strike her 3 more times using the

excuse that she had only meant to strike the dog. I found this to be a lie given that it

would have been obvious to the Appellant that she had hit the complainer but she

still thereafter decided to continue striking said Complainer, using the quite

unbelievable excuse that she thought she was only striking the dog… and not

striking the Complainer. As I say I found this evidence to be incredible and a lie.”

[14] As noted above, according to the appellant’s agent, the recording was played in court

on a computer provided by the appellant’s law agent. In whatever form it existed, it was

removed from court by the agent at the end of the trial. As also already noted, the content of

the recording was not made an issue in the application for a stated case. It was therefore not

dealt with by the justice, who signed the stated case in July 2017 when the conviction was

already 2 years distant. Meantime the SCCRC had provided copies of the recording to the

court and the Crown. By letter dated 25 July 2017 the Crown requested the court to seek the

justice’s comments on the state of the recording. The court forwarded a DVD containing

what was said to be a copy of the recording to the justice. She responded that it was not in

the same format, as her recollection was that the one used at the trial had been played using

the court’s equipment and not that of the agent. Having listened to the DVD on a computer,

she was unable to confirm that it was the same recoding as had been played at the trial. It

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did not have the requisite clarity whereby the strikes and screams referred to in the stated

case could be heard.

Decision

[15] This was a straightforward case in which the complainer said that the appellant had

struck her repeatedly with a dog lead. Under cross-examination, the complainer said that

the blows and screams could be heard on the recording. The content of the recording thus

became evidence in the case notwithstanding that the recording does not appear to have

been formally produced. The complainer’s evidence was corroborated by an independent

by-stander who said the same. According to the justice, the audio recording supported their

evidence. The justice found the appellant’s evidence, that she had only struck the dog, to be

incredible, for the reasons given above regarding multiple strikes causing the complainer to

scream. The justice accepted that the first blow may have been an accident, but rejected the

idea that the subsequent ones were other than deliberate.

[16] There is no substance in the contention that the justice had accepted that throughout

the incident the appellant had been trying to hit only the dog. That is not what is said either

in the letter from her legal adviser to the Commission or in the stated case. There is no merit

in an argument that, just because the justice accepted that the first blow may not have been

intended to strike the complainer, there was somehow an absence of the requisite intent

when the appellant had continued with the remaining strikes. The justice’s finding (22) is

clear that the second and subsequent strikes were intended for the complainer. Her

reasoning is consistent with the explanation proffered to the SCCRC that she had concluded

that the appellant was lying about hitting the dog since it would have been obvious to her

that she was striking the complainer and not the dog.

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[17] The unusual feature of the case is the contention, put bluntly, that the justice’s

findings in fact, and her narrative of the evidence, are simply wrong because the blows and

the screaming are not detectable on the recording. There are several problems with this. The

first is that the procedure in an appeal in summary procedure is by stated case. The

appellant is confined, inter alia, to matters which he desires to be reviewed in his application

(Criminal Procedure (Scotland) Act 1995 s 182(3). The court stating the case does so in a

manner which deals with those specific matters (s 178(2)) as set out in the application

(s 176(1)(b)). Sometimes, matters can emerge after the stated case is drafted, in which case

the appellant can seek to amend his application (s 176(3)). However, the reasoning of the

justice in this case concerning the content of the recording was set out by the legal adviser in

her letter to the SCCRC and the concerns about this formed part of the reasons for the

reference. These were not included in the Note of Appeal which became translated into the

application; hence the matter is not properly focused in the stated case. On this basis alone,

the court would not have found in the appellant’s favour.

[18] Secondly, even if the matter had been properly focused, in the absence of an

agreement by the parties to the contrary, or some deficiency obvious from the court’s own

observations of a piece of real evidence formally produced in the case, this court cannot go

behind the findings in fact stated, or (were an appropriate question to have been posed) the

justice’s narrative of the evidence, and conclude that finding in fact 18 concerning the

recording is wrong. That would negate the purpose of the stated case procedure with its

dependence on the account given by the court of first instance. The justice’s narrative of

what the complainer said could be heard on the recording, with which the justice agreed, is

decisive, at least in the absence of an agreement that the DVD made available to the SCCRC

and copied to the court is a true copy of that on the Dictaphone and that it does not record

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the screams and blows. There was, of course, no obligation upon the appellant to lodge the

recording in a summary trial. She would have been able to use it to test the evidence of the

complainer in cross in any event. However, where, as is now the case, an accused maintains

that a piece of real evidence either demonstrates his innocence or provides a reasonable

doubt as to his guilt, then it would be, at the very least, prudent to lodge the item formally

with the court, to have it marked as such by the clerk and to refrain from removing it until

such times as any appeal or intended review process is completed.

[19] The first question must be answered in the negative, the second in the affirmative

and the appeal refused.