APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Abernethy
Lord Philip
Lord Penrose
|
[2006]
HCJAC 44
Appeal No: XC561/05
OPINION OF THE COURT
delivered by LORD ABERNETHY
in
NOTE OF APPEAL AGAINST
CONVICTION and SENTENCE
by
STEVEN JAMES HARKNESS
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: A. Brown; Wardlaw Stephenson & Allan, Galashiels
Alt: D. Bain, A.D.; Crown Agent
19 May 2006
Introduction and
background
[1] The appellant
is Steven Harkness. On 30
June 2005
after a two-day trial he was convicted by a jury in the Sheriff Court at Selkirk of the following charge:-
"On 04 September 2004 at Port Brae, Peebles you STEVEN
JAMES HARKNESS did assault Richard Petrik, c/o Lothian and Borders Police,
Peebles, strike him on the head with a broken bottle all to his severe injury,
permanent disfigurement and permanent impairment."
The Sheriff then adjourned the diet until 21
July 2005 in
order to obtain Social Enquiry and Community Service Reports. The appellant was remanded in custody. On 21 July 2005, the Reports having been obtained,
the Sheriff sentenced the appellant to 2 years detention in a Young Offenders
Institution with effect from 30 June 2005.
[2] The appellant
appealed against both conviction and sentence.
[3] The first
ground of appeal against conviction was to the effect that the Sheriff's
directions to the jury on the question of reasonable doubt were inadequate and
amounted to a misdirection. For reasons
which will become obvious it is not necessary for us to say any more than that
we were not persuaded that this ground of appeal was well-founded. While the Sheriff's directions on this matter
were somewhat unorthodox, when read as a whole they did not in our opinion
amount to a misdirection such as to result in a miscarriage of justice.
[4] The second
ground of appeal against conviction was to the effect that in his review of the
evidence in his charge to the jury the Sheriff, despite telling the jury on a
number of occasions that the facts were for them and that he was going to try
to avoid suggesting to the jury what his view of the facts was, nevertheless on
a number of occasions did just that and as a result trespassed on the jury's province
as masters of the facts.
[5] The Sheriff's
Report does not contain a summary of the circumstances of the case but from
what was said in his charge to the jury it appears that the evidence at the
trial was within a short compass. The
Crown case was that the complainer was returning home after a night out with
friends when he was approached by the appellant, who was heavily under the
influence of alcohol. The appellant made
some derogatory remarks about the mother of one of the complainer's friends. The complainer's and his friends' reaction
was to tell him to go away. But he did
not go away and he started to try and pick a fight. At that stage the complainer thought it was a
good idea to take him away from the group, down a hill to an open green, and
there have a quiet word with him and try to persuade him to go away. After talking to the appellant, as he (the
complainer) thought successfully, the complainer walked away. He had almost reached his friends at the top
of the hill when the appellant ran up behind him and, when he turned round,
struck him in the face with a broken bottle.
According to the appellant, however, the complainer was the
aggressor. He (the appellant) was only
passing on a message from one of the complainer's friends (who was a little
distance ahead) to tell the complainer and the other friends he was with to
hurry up. The complainer, however,
wanted to go to the green to fight and he threw the first punch to the
appellant's head, hitting him in the area where his skull had previously been
fractured. The appellant then struck the
complainer on the head with a beer bottle.
He had previously picked it up in order to scare the complainer. It was agreed in a Joint Minute of Agreement
that the appellant had struck the complainer on the head with a broken bottle
all to his severe injury, permanent disfigurement and permanent
impairment. But the appellant's position
was that he had not intended to do that;
it was an accident.
[6] From their
verdict it is clear that the jury accepted the Crown's version of the incident
and rejected the appellant's. It is
equally clear that the credibility and reliability of the witnesses was at the
heart of the case.
The Sheriff's charge to
the jury
[7] At the outset
of his charge (page 2) the Sheriff stressed the differences between his and the
jury's functions. The law was for him
and him alone. The jury's province was
the facts and the facts were for them alone.
The Sheriff went on to tell the jury that if anything that he said
carried any suggestion as to what they might think was his view of the facts,
then he apologised in advance for that.
He said he was going to try studiously to avoid doing that because the
facts were nothing at all to do with him;
they were the jury's business. It
was their recollection of the facts that counted, no one else's. A little later in his charge (page 11) the
Sheriff suggested that in light of the fact that it was agreed in the Joint
Minute of Agreement that the appellant had struck the complainer with the
bottle, the only matter really for the jury to decide was whether he did so
intentionally.
[8] The Sheriff
then went on (from page 16) to give the jury a summary of the evidence. He started by directing them again that the
facts were for them and if they disagreed with anything he said about them,
they should ignore it. He summarised
first the evidence of the complainer to the point where he had first told the
appellant to go away. He then described
the supporting evidence of another Crown witness, one of the complainer's
friends, who had agreed "Yes, we probably did tell him to fuck off". The Sheriff then said (at page 18):-
"Well, that has a real ring of truth
to it, doesn't it? I have a feeling that
many people tried in that way, if that's how you were being tried, would say
just that, 'Oh, fuck off and leave me in peace'.".
[9] After
continuing to describe the evidence of the complainer and his friends the
Sheriff turned to the appellant's evidence, noting first that he had given a
very different version of events. The
Sheriff then said (at page 23):-
"He admitted having consumed what you
might regard as a prodigious quantity of alcohol for anyone, let alone a 16
year-old boy, a bottle of Buckfast and eight bottles of beer."
[10] The Sheriff
then continued to recount the evidence that the appellant had given about being
asked by one of the complainer's friends to go back and tell the complainer and
his friends to hurry up. The appellant
said he did that and then described the complainer's reaction. The Sheriff then continued as follows (page
24):-
"Now, you may think it's a fairly
astonishing reaction but he tells us that Mr. Petrik, regardless of what
his friends describe as the calm, peacemaking guy, he doesn't like fighting, he
doesn't want trouble, his reaction to being told this pretty innocuous piece of
information is to lose it, and go mental, to push him up against the wall, to
threaten to throw him over into the river."
[11] After
directing the jury that this presented them with a straight issue of
credibility and reliability the Sheriff narrated the appellant's account of
that part of the incident when he and the complainer went down the hill to the
green. This was to the effect that when
they were on the green and the fight was about to start the complainer's phone rang. He answered it and spoke briefly. He then put his phone in his pocket and just
walked away. The Sheriff then continued
as follows (page 25):-
"Now, these are facts, these are for
you to decide on, but does that sound like somebody who's looking to start a
fight? If he's looking to start a fight
he's got this little boy where he wants, down in the privacy and peace and
quiet of the green. If all he wants to
do is batter him then there's his big opportunity but he takes a phone-call and
walks away".
[12] The Sheriff
then narrated the appellant's evidence to the effect that three of the
complainer's friends at first ran and then walked towards him. He thought he was going to be attacked and
that his only option was to arm himself.
He then ran and picked up the bottle, which he had seen earlier, and
smashed it to make it a better weapon.
He then approached the group, making the bottle visible in the hope that
the complainer and his friends would be frightened and run away. The Sheriff then continued as follows (page
26):-
"Now, these are facts. These are for you to decide on but does that
sound very likely, that four young drunken boys hell-bent on having a fight are
going to run away from one little 16 year-old? Maybe they would. It's a fact, that's for you to decide."
[13] The Sheriff
then recounted the appellant's evidence that he was quite frightened by
now. The complainer and his friends,
however, stood their ground and so he walked right up to them in a face-to-face
encounter. Then the complainer punched
him on that part of his head where he had been seriously injured
previously. It was then that in some way
it came about that the bottle hit the complainer's face. After stating that he found the appellant's
description of that quite difficult to follow and understand but leaving it to
the jury to decide if that description was possible, the Sheriff said (page
27):-
"The strange thing is - and I myself
asked him, 'How long do you think it was between the punch and the
bottling?'. He said, 'Two seconds'. Well, if you think about two seconds, to say
any three syllable word is generally reckoned to take a second so elephant - ,
a photograph, so one elephant, two elephant, that's two seconds, so it's not as
if he's punched and all in the process of falling down, as a single continuous
action his arm swings out of control.
It's a two-second gap he said but these are facts, these are for you to
decide on."
[14] Shortly
thereafter (page 31) the Sheriff reminded the jury once again that the facts
were peculiarly for them to analyse and decide.
He then continued:-
"I have studiously tried not to
convey any impression to you of what I think.
If I have, ignore it: that's
quite unintentional and above all unhelpful."
[15] The Sheriff
then gave the jury directions on provocation, telling them that it was not a
defence to a charge of assault but it did affect sentence. He also directed them that to amount to
provocation there had to be some proportion between the original, provoking act
and the assault in retaliation. He then
gave some examples by way of illustration of what he meant, indicating that
there was a scale ranging between assaults in retaliation which were obviously
proportionate and assaults which were obviously not so. He then continued, with reference to the case
in question, as follows (page 33):-
"You have to decide at what point in
the scale you place it and you have to decide whether a punch justifies
retaliation with a pretty deadly, potentially murderous weapon. That's for you."
[16] The Sheriff
then went on to direct the jury as to the verdicts open to them and brought his
charge to a conclusion.
Counsel's submissions
[17] Counsel for
the appellant acknowledged that the Sheriff had repeatedly directed the jury
that it was their recollection alone of the evidence that counted and they
should not think that he was expressing any views about it. Nevertheless in the passages to which
particular reference has been made above the Sheriff did in fact impress his
views on the jury. He had therefore
trespassed on their territory. Reference
was made to McArthur v H.M. Advocate 1989 S.C.C.R. 646 and Hunter v H.M. Advocate 1999 S.C.C.R. 72.
Counsel recognised that one must look at the totality of the charge. He was not suggesting that the Sheriff
deliberately trespassed on the jury's territory and he was not suggesting that
it was a matter of the intonation used by the Sheriff. He relied on the words the Sheriff used and
it was a matter to be judged objectively from those words. Reference was made to Clark (C) v H.M. Advocate
2000 S.C.C.R. 767. Counsel then took us
through the charge with particular reference to the passages mentioned
above. He submitted that this ground of
appeal was well-founded and that the appellant's conviction should therefore be
quashed.
[18] In response
the Advocate depute submitted that the Sheriff's charge should not be looked at
as if it were a conveyancing document.
The whole charge had to be looked at to see if what the appellant
complained of in the passages referred to amounted to a miscarriage of
justice. She examined each of the
passages. She accepted that even
although none of them might individually amount to a miscarriage of justice,
there could be a compounding effect when they were added together. She also accepted that it was not enough for
the Sheriff to pay lip service to the rule that the facts were for the jury
alone and then go on to impress his view of the facts upon them. She submitted, however, that that was not
what had happened and that, when the charge was reads as a whole, there had been
no miscarriage of justice. The appeal
against conviction should therefore be refused.
Discussion
[19] As we have
said, the evidence in this case was in short compass. It lasted only a day and a half. Although it must have been fresh in the minds
of the jury, the Sheriff decided to go through it in some detail in his charge. This he was entitled to do. But in doing so it was essential that he took
the utmost care to avoid trespassing on the jury's province as masters of the
facts. The well-known passage to that
effect in the Opinion of the Lord Justice General (Cooper) in Simpson v H.M. Advocate 1952 J.C. 1 at page 3 was referred to with approval
both in Hunter v H.M. Advocate, supra and Clark (C) v H.M. Advocate, supra. Here there was a clear issue as to the
credibility and reliability of the evidence of the witnesses on either
side. It was therefore essential that
the Sheriff did not impress his own view of the evidence on the jury. There is no suggestion that he intended to do
that and from what he said both at the start and towards the end of his charge
it is clear that he did not intend to and did not think that he had done
so. We must, however, look at the matter
objectively (Clark (C) v H.M. Advocate, supra). When a trial judge
chooses to comment on the evidence in his charge he should do so in a fair and
balanced way and exercise restraint in his use of language. Otherwise there is a real risk that he will
impress his view of the evidence on the jury.
It is to be noted that in each of the passages in his charge which was
criticised by counsel for the appellant the Sheriff's comments were either
adverse to the appellant's case or supportive of the Crown's and for the most
part strongly so. The balance in these
passages was therefore tipped against the appellant. There was nothing by way of counterbalance. There were only the directions that if the
jury did not agree with anything the Sheriff said about the facts they should
ignore it. In our opinion that was not
sufficient in the circumstances. We
recognise the difficulty that an appellate court has in recapturing the situation
as it was at the time in the lower court.
We only have the printed page of the transcript. We do not go so far as to say that each of
the passages in question taken by itself was sufficient to conclude that a
miscarriage of justice had taken place. Having
read the charge as a whole, however, we have come to the conclusion that,
despite his expressed intention to the contrary, the Sheriff did impress his
view of the evidence on the jury and trespassed on the jury's province as
masters of the facts in such a way as to result in a miscarriage of justice.
Decision
[20] For these
reasons we have allowed the appeal and quashed the conviction. In that situation the appeal against sentence
is superseded.
