APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lady Paton Lord Carloway	[2010] HCJAC 68 Appeal No: XC227/09, XC228/09 and XC226/09 OPINION OF THE LORD JUSTICE GENERAL in APPEALS by (FIRST) BARRY BURGESS, (SECOND) KERI-ANNE CONNOLLY and (THIRD) CARRI-ANN STEPHEN Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant: J Macdonald; Drummond Miller, Edinburgh

Second Appellant: S Collins, Solicitor Advocate; Capital Defence, Edinburgh

Third Appellant: K McCallum; Drummond Miller, Edinburgh

Respondent: A Mackay, A.D.; Crown Agent

9 July 2010

Introduction

[1] I agree with Lady Paton that, broadly for the reasons which she gives, the appeals of the first and third appellants must be refused. I have only one qualification. It relates to her discussion of Rauf v HM Advocate 1997 SCCR 41.

[2] In that case the sheriff directed the jury that:

"... one of the rules about cross-examination is that if an accused is later to give detailed evidence of what happened in a certain situation, the main points of what he is later to say ought to be put to others who were there at the time so that they have an opportunity to comment. Now, that wasn't fully done in this case and that may, depending on the view you take, lead you to the view that some of the accused's evidence was an afterthought and may be less reliable than it otherwise might be."

The High Court, presided over by Lord Justice Clerk Ross, held that the sheriff was entitled to give that direction, the appellant's credibility having been put in issue in cross-examination.

[3] There is, in my view, no difficulty with that direction if "the rules" are understood as being rules of good professional practice, rather than of law, and the obligation ("ought to be put") is likewise understood to be an observation as to what is consistent with that practice. Failure by an accused's representative to observe it may expose the accused to adverse comment as to his credibility if he later testifies as to matters which could have been, but were not, put to earlier witnesses. It does not, of course, render such testimony inadmissible (McPherson v Copeland 1961 JC 74; Mailley v HM Advocate 1993 SCCR 535). The assumption on which the comment is based is that an accused, if he is straightforward, will be expected to give to his legal representative in advance of the trial a frank account of all important and relevant matters within his knowledge. There is the further assumption that the appropriately informed representative will follow good professional practice. In the present case the sheriff was clearly entitled to make the comment which he did about the unforeshadowed evidence of the first appellant.

[4] Similar comment may be open when a witness other than an accused gives in evidence an account which has not been put to an earlier witness or witnesses. In McPherson v Copeland the issue arose because a line of evidence being elicited from a Crown witness had not been put to an earlier Crown witness. Lord Justice Clerk Thomson clearly contemplated that such failure was open to comment. But in such a case the first assumption may not be so securely founded. Although the indictment gives a list of Crown witnesses, it does not follow that they will all have been precognosced, or fully precognosced, by the accused's representative. Something may genuinely emerge at the trial unexpectedly. In these circumstances presiding judges and sheriffs should, in my view, be cautious about commenting adversely upon such unforeshadowed evidence - although they will certainly be entitled to observe that the earlier witness has not been given the opportunity to comment on it.

[5] In the present case, however, I am not persuaded that there was a misdirection by reason of the sheriff's comments about Mr Carswell's evidence. The issue of credibility and of reliability of the witnesses was clearly left by him to the jury. The observations about pre-trial and trial action were all expressed hypothetically:

"... if a statement was taken from Mr Carswell, you might think he might have made mention of these matters in such a statement";

"if that were the case, when Mr Singh was cross-examined in the understandable detail he was by all those representing the accused, you might expect these matters would have been investigated with Mr Singh, by asking him questions on these matters".

At the conclusion of this chapter of his charge the sheriff said:

"Now ... depending on the view you take, you may come to the conclusion that these remarks were an afterthought by Mr Carswell and may be less reliable than they might otherwise be."

[6] As regards the second appellant, I agree with Lord Carloway, for the reasons which he gives, that her appeal must fail. I would only add that, there being no evidence in the case which could support a special defence of "self-defence" of another, the sheriff would have been entitled to withdraw that special defence from the consideration of the jury.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lady Paton Lord Carloway	[2010] HCJAC 68 Appeal No: XC227/09, XC228/09 and XC226/09 OPINION OF LADY PATON in APPEALS by (FIRST) BARRY BURGESS, (SECOND) KERI-ANNE CONNOLLY and (THIRD) CARRI-ANN STEPHEN Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant: J Macdonald; Drummond Miller, Edinburgh

Second Appellant: S Collins, Solicitor Advocate; Capital Defence, Edinburgh

Third Appellant: K McCallum; Drummond Miller, Edinburgh

Respondent: A Mackay, A.D.; Crown Agent

9 July 2010

Introduction

[7] An incident in a nightclub in Perth on 21 October 2007 resulted in confrontations between Gary Singh and the first appellant, and between Mr Singh's partner Eilidh Duncan and the second and third appellants. During subsequent police inquiries, the first appellant told officers "I'll take the full rap". The appellants were charged with assault. They stood trial at Perth Sheriff Court. Each appellant lodged a Special Defence of self-defence. Each appellant gave evidence. On 17 February 2009 the jury found the first appellant guilty of assaulting Mr Singh to his severe injury and permanent disfigurement by punching and kicking him and striking him repeatedly with a bottle and a broken bottle (Charge 1). The jury found the second and third appellants guilty of assaulting Miss Duncan by punching and kicking her, to her injury (Charge 3).

[8] The appellants appeal against conviction. The first appellant contends that the sheriff misdirected the jury by making comments about defence failures to cross-examine. The second appellant submits that the sheriff gave inadequate directions about her Special Defence of self-defence based on her attempt to protect the third appellant. The third appellant criticises a passage in the sheriff's charge where he refers to her acceptance that she "assaulted" Miss Duncan, whereas she had acted in self-defence.

The Special Defences

[9] The relevant Special Defences were in the following terms:

The second appellant:

"Scott for the Second Named Panel ... states that in respect of charge three on the said Indictment any injuries sustained by the Complainer, Eilidh Margaret MacDonald Duncan, as a result of the actings of the said Keri-Anne Connolly were received while the said Keri-Anne Connolly was acting in self-defence, the said Keri-Anne Connolly acting in defence of Carri-Ann Stephen who was being assaulted and was under threat of further assault from the said Eilidh Margaret MacDonald Duncan."

The third appellant:

"Holmes, for the Panel Stephen, states that the Panel Stephen pleads not guilty to all charges and specifically, and without prejudice to said pleas, that:

...

(c) In relation to charge 3 the Panel was acting in self-defence, she having been attacked by the complainer Eilidh Margaret MacDonald Duncan."

Outline of the relevant evidence

[10] The appeals were conducted on the basis of the evidence as summarised in the sheriff's three reports to this court. What follows are brief paraphrases of the relevant sections of those reports.

Evidence relating to the first appellant

[11] The first appellant described the sequence of events in the nightclub. He blamed Mr Singh as the troublemaker. In relation to his subsequent remark ("I'll take the full rap"), the first appellant explained that when he was interviewed at the police station, Constables Forbes and Strachan accused and taunted him. In particular Constable Forbes told him that both he and the third appellant would be "going away" (i.e. going to prison). The third appellant was the first appellant's partner, and he was scared for her. He was worried that they would be jailed for something they had not done. As a result, he made the remark. Later however, when released on bail, he returned to the police station and gave another wholly exculpatory statement. He was angry about the way he had been treated by Constables Forbes and Strachan, and felt that he had not been given an opportunity to give his own account of events. He made a complaint about the officers' behaviour to another officer, Constable Hail who, according to him, agreed with him. The lack of cross-examination commented on by the sheriff in his charge was the fact that when the police officers gave evidence earlier in the trial, none of these allegations was put to them for their comment.

[12] A Crown witness, Christopher Carswell, was working at the nightclub on 21 October 2007. He gave evidence about the incident. When cross-examined by the third appellant's agent, he mentioned (for the first time) bad behaviour on the part of Mr Singh prior to the incident, resulting in two warnings from staff. Mr Singh had behaved as if he were drunk, or an "ignorant git". He had bumped into one male and almost knocked him out. None of this had been put in cross-examination to Crown witnesses who had given evidence earlier (for example, Mr Singh and Miss Duncan). The first appellant's agent subsequently relied upon this part of Mr Carswell's evidence in his jury speech. The sheriff notes:

"If Mr Singh had indeed acted in the way [Mr Carswell] described, then this was of significance. It was not a minor matter."

Evidence relating to the second appellant

[13] Relevant evidence relating to the second appellant was as follows:

(a) Mr Singh gave evidence that the second and third appellants attacked Miss Duncan. At some point Miss Duncan was bent over a handrail, being kicked and punched by those two appellants. The second appellant stood on Miss Duncan's back and kicked her head. The third appellant pulled Miss Duncan back, and kicked, punched and stamped on her. The second appellant took off a shoe and hit Miss Duncan with the heel. Miss Duncan eventually managed to get away.

(b) Miss Duncan gave evidence that the second and third appellants approached her. The third appellant was shouting and swearing at her. Miss Duncan's head was grabbed from behind and she was stamped upon and kicked. The second appellant took off her shoe and hit Miss Duncan with the heel. Miss Duncan denied that the second appellant had come to the aid of the third appellant: the third appellant had begun the attack, and the second appellant joined in.

(c) Hamish Brackett, the second appellant's cohabitee, said that he had told the second appellant to break up the fight between the third appellant and Miss Duncan. The second appellant then took off her shoes and gave them to him. He did not see what she did thereafter.

(d) The second appellant said that she became aware that the third appellant and Miss Duncan were fighting. Mr Brackett told her to stop the fight. She gave him her shoes. She ran over to Miss Duncan and the third appellant who had both fallen onto the fire escape. Miss Duncan grabbed the second appellant's ankle, possibly in an attempt to stand up. The second appellant shook her foot to make Miss Duncan release it. The second appellant accepted that, in so doing, her foot might have made contact with Miss Duncan. The second appellant wanted to separate the fighters, and she shouted at them to stop. Apart from trying to extricate her foot, she denied doing anything to Miss Duncan.

(e) The third appellant gave evidence that the second appellant tried to separate Miss Duncan and herself. The third appellant accepted that the second appellant kicked Miss Duncan in order to try to break free, but any kick was unintentional.

Evidence relating to the third appellant

[14] The third appellant gave evidence that Miss Duncan grabbed her by the hair and pulled her back. As a result, the third appellant landed on her stomach. She and Miss Duncan traded blows with their hands and feet.

The sheriff's charge

[15] The sheriff charged the jury inter alia as follows:

"Now, ladies and gentlemen, you have to decide which evidence you accept as credible and reliable and which evidence you do not accept as credible and reliable. What evidence is to be accepted is always an issue for you to decide, it is entirely for you to decide which evidence you accept and which you do not. It is perfectly possible for you to accept part of the evidence of a witness and reject another part of that witness's evidence ...

... there is one specific matter which I wish to deal with regarding credibility and reliability, which arises in this case. The matter firstly arises in connection with the evidence of Christopher Carswell ... you will see that Mr Carswell's name appears on the list of Crown Witnesses on the Indictment. The reason for that is to give those representing the accused notice of the Crown Witnesses, to enable them to take statements and to make investigations from these witnesses, so that they may have a reasonable idea of what a Crown Witness is going to say. Accordingly, if a statement was taken from Mr Carswell, you might think that he might have made mention of [the circumstances relating to Mr Singh's previous bad behaviour] in such a statement; they appear relevant. If that were the case, when Mr Singh was cross-examined in the understandable detail he was by all those representing the accused, you might expect these matters would have been investigated with Mr Singh, by asking him questions on these matters ... it is a well known function of cross-examination not simply to test credibility and reliability, it is also to put to a witness relevant matters upon which they should be properly given an opportunity to comment by giving an explanation or denial as a matter of fairness. These specific matters spoken to by Mr Carswell [about Mr Singh's previous bad behaviour] were not put to Mr Singh. Indeed, such matters were also not investigated with any other witness who might have been able to comment; Miss Duncan, for instance. Now, ladies and gentlemen, depending on the view you take, you may come to the conclusion that these remarks were an afterthought by Mr Carswell and may be less reliable than they might otherwise be.

... a similar observation can be made regarding certain aspects of the evidence of the accused Barry Burgess. I refer to his comments regarding police officer Constable Gair Forbes taunting him, and that being the reason for his comment that he would take the full rap. Further, he commented that he mentioned this to Police Constable Hail, that he had been mistreated when he had been first in custody, and that officer agreed with him; neither officer was cross-examined on these matters. If an accused is later going to give detailed evidence on a certain material matter, the main points of what he is to say later ought to be put to the witnesses who can comment on these matters, so that they can indeed comment. Now, that was not done ... and once again, that may, depending on the view you take, lead you to conclude that some of the evidence from Mr Burgess was an afterthought and may be less reliable that it might otherwise be. [The sheriff gave the jury further detailed guidance about assessing credibility and reliability, and continued:]

Turning to Charge 3, ladies and gentlemen, involving Miss Connolly and Miss Stephen, the Crown says, again, that the evidence shows there was a joint or common purpose in the commission of this crime between the accused and you can infer both accused's actings came within that. Now, really the operation of this doctrine [concert] is only of relevance in considering the case of Miss Connolly. The reason I say this is because Miss Stephen accepts that she assaulted Miss Duncan, but says that in doing so she acted in self-defence, and I shall deal with that later ...

I now wish to turn to various statements that were made at various stages, or various remarks.

The first one I wish to deal with is the remark the accused Barry Burgess made to Police Constables Forbes and Strachan; I think this was along the lines of 'I'll take the full rap.' In this case there has been evidence about what the accused said to the police. Before you could take into account what the accused has said you have to decide if he did say anything, if it is accurately recorded and if it was fairly obtained. Now, in this case, ladies and gentlemen, there does not appear to be any dispute that Mr Burgess made the remark. It is accepted, as I understand it, that he made that remark to the officers. As I understand his evidence he says this information was not fairly obtained, that he was taunted. Now, the Crown say it was fairly obtained. Whether it was fairly obtained or not, you have to decide ... But if you thought it has been fairly obtained it is part of the evidence in this case and you then have to consider its significance. And again, I would simply remind you ... that the police officers were not cross-examined to the effect that they taunted Mr Burgess and as a result the remark was made ...

[The sheriff read the terms of the second appellant's Special Defence of self-defence, and continued:] The term Special Defence is rather misleading. The only purpose for lodging this is to give the Crown advance notice of a line which the accused may take. The important thing for you is that the accused does not have to prove to any particular standard that he or she acted in self-defence; it is for the Crown to prove that the accused did not act in self-defence. But if you come to the view that the accused did act in self-defence, you must acquit. Furthermore, any aspect of the evidence in this case, irrespective of who gives that evidence, which gives you a reasonable doubt about the guilt of the accused must again result in an acquittal.

... in our law, if a person is attacked or is in reasonable fear of attack, that person is entitled to use such force as is needed to ward off that attack. The same is true if it is a friend or relative who is endangered. So an accused person would not be guilty of an assault if acting in self-defence. In those circumstances, the accused would fall to be acquitted ... [The sheriff outlined the conditions which had to be satisfied for self-defence, namely, being under attack, avoiding the attack if possible, and not using excessive force, and continued:]

Turning to Miss Connolly and Miss Stephen, the assault charge they face relates, of course, to Miss Duncan. You will require simply to consider whether the Crown had established beyond reasonable doubt that Miss Connolly was not acting in self-defence in protecting Miss Stephen, and likewise that Miss Stephen was not protecting herself from any actions by Miss Duncan.

Now, ladies and gentlemen, it does not follow from the fact that an accused person has joined in a fight that the defence of self-defence is not available to that person. Whether or not self-defence can be considered depends on the view you take of all the circumstances."

Submissions for the appellants

The first appellant

[16] Counsel submitted that there was no obligation upon the defence to lay a foundation for future defence evidence by cross-examining witnesses: McPherson v Copeland 1961 JC 74; Mailley v HM Advocate 1993 SCCR 535. While a lack of cross-examination might expose the accused to comment, the court's power to comment was restricted. In particular, questions of credibility and reliability were for the jury alone, and the sheriff was not entitled to invite the jury to take an adverse view of the accused. In the present case, the sheriff's comments had gone beyond assisting the jury with the weight of the evidence. The sheriff had been pejorative in his approach to the first appellant, and had invited the jury to take an adverse view of him. As a result, there had been a material misdirection in relation to significant evidence led on the first appellant's behalf (namely the evidence explaining why he had made an admission against interest). The sheriff had also made inappropriate comments in relation to the Crown witness Christopher Carswell. Mr Carswell had, apparently unexpectedly, given evidence in cross-examination that Mr Singh had behaved badly prior to the incident in question. The sheriff's comments relating to the lack of cross-examination of Mr Singh on that matter went too far. There had been a miscarriage of justice, and the conviction should be quashed. The decision in Rauf v HM Advocate 1997 SCCR 41 could be distinguished. In that case, the Crown jury speech made no issue of the lack of cross-examination (although there had been some Crown cross-examination of the accused to the effect that he was embellishing his story); by contrast in the present case, the Crown had relied upon the lack of cross-examination when addressing the jury. However if the court took the view that Rauf was binding, the case should be remitted to a bench of five, as Rauf appeared to have been decided without reference to Mailley, and to be out of line with the authorities.

The second appellant

[17] Mr Collins referred to the terms of the second appellant's Special Defence. The second appellant's position was that she became involved because she was attempting to protect the third appellant, and to separate the third appellant from Miss Duncan. But the sheriff had failed to direct the jury appropriately on the proper legal test applicable where someone intervenes in order to protect a third party: cf Dewar v HM Advocate 2009 SCCR 548 (a decision which became available after the trial in the present case). That failure was material, and had led to a material miscarriage of justice. The second appellant's conviction should be quashed.

The third appellant

[18] The third appellant's position was that she had acted in self-defence when attacked by Miss Duncan. Thus she was not guilty of "assaulting" Miss Duncan. In such circumstances, it was unfortunate and inappropriate that the sheriff characterised her position as an acceptance that she had assaulted the complainer. While the sheriff gave appropriate directions on self-defence elsewhere in the charge, the sheriff's characterisation of the third appellant's actings as an assault gave such a colour and flavour to her actions that the misdirection was material and a material miscarriage of justice had occurred. The third appellant's appeal should be sustained and the conviction quashed.

Submissions for the Crown

[19] The Advocate depute invited the court to refuse all three appeals.

The first appellant

[20] Mr Singh had not been given an opportunity to comment on the allegations about his earlier behaviour. In those circumstances the sheriff was entitled to give the jury some guidance. The sheriff referred to an inference which the jury might choose to draw from the lack of cross-examination: cf Rauf v HM Advocate cit sup. However the sheriff left all questions of credibility and reliability for the jury to decide. As for the lack of cross-examination about alleged inappropriate behaviour by the police when interviewing the appellant, the sheriff gave the jury some guidance about the way in which they might approach matters, but again left questions of credibility and reliability for them. It could not be said that the sheriff had misdirected the jury.

The second appellant

[21] The second appellant gave evidence that she was told to stop the fight. She ran over and shouted to the protagonists to stop. She denied doing anything to Miss Duncan, other than trying to extricate her foot from Miss Duncan's grasp. The second appellant's position was therefore that she denied taking part in the assault. Thus there was no evidential basis upon which to found any Special Defence of self-defence in the protection of a third party, such as that referred to in Dewar v HM Advocate cit sup.

The third appellant

[22] It was accepted that the reference to "assault" was unfortunate. However the directions as a whole left the jury in no doubt that if the third appellant had been acting in self-defence as legally defined, satisfying all three conditions outlined by the sheriff, then she was not guilty of assault.

Discussion

The first appellant

[23] I accept that issues of credibility and reliability are matters entirely for the jury. I also accept that there is no obligation upon the defence to lay a foundation for future defence evidence by putting questions in cross-examination before that defence evidence is led: Mailley v HM Advocate 1993 SCCR 535. Nevertheless a failure to put such questions may expose the accused to comment from both prosecution and judge. For example, it may be explained to the jury that witnesses who gave evidence earlier were not given an opportunity to respond to, and comment upon, the matters later led in evidence by the defence.

[24] The primary criticism in the present appeal relates to the sheriff's comments that the first appellant's allegations of inappropriate police behaviour were not put in cross-examination to the officers in question. In my view, the sheriff was entitled to give the jury the guidance he did. If the first appellant considered that his statement against interest had been extracted from him under duress by inappropriate treatment by police officers, it would be remarkable if he had not shared that information with his defence lawyers. Accordingly the sheriff was entitled to explain to the jury that one function (i.e. one use or purpose) of cross-examination was to put to witnesses what the accused maintained had occurred, thus allowing those witnesses an opportunity to comment (for example, by admitting, denying, explaining or qualifying the allegation). Further, in the circumstances of this case, the jury would be entitled to consider whether the alleged police misbehaviour described by the first appellant - apparently for the first time in the witness-box - might be a last-minute embellishment of his evidence (or, as the sheriff put it, an "afterthought"), and for that reason might be regarded as less reliable than it might otherwise be. The guidance given by the sheriff was appropriate in the circumstances, and left issues of credibility and reliability for the jury to decide.

[25] As for the observations made in relation to the Crown witness Mr Carswell, I agree with the Advocate depute that, as Mr Singh, Miss Duncan, and others, were not given an opportunity to comment upon Mr Carswell's evidence that Mr Singh had earlier been behaving badly in the nightclub, it was appropriate that this lack of opportunity should be drawn to the jury's attention. The guidance given by the sheriff again left all issues of credibility and reliability for the jury to decide.

[26] The case of Rauf v HM Advocate is distinguishable. In Rauf the sheriff refers to "one of the rules about cross-examination", a phrase suggestive of a mandatory requirement. By contrast in the present case the sheriff accurately referred to a "function" of cross-examination, in other words, a "use" or "purpose" of cross-examination. As Rauf is distinguishable from the present case, the question of a remit to a larger bench does not arise.

The second appellant

[27] On the evidence as recorded by the sheriff, the jury were faced with two different versions of events. In one version (described by Mr Singh and Miss Duncan), the second appellant deliberately joined in the physical attack upon Miss Duncan, standing on her and kicking her in the face. In the other version (described by the appellants), the second appellant approached the struggle between the third appellant and Miss Duncan with a view to separating them. In that version, there is no indication in the sheriff's summary of the evidence that the second appellant made any physical contact with either protagonist, other than one accidental contact with Miss Duncan when the second appellant tried to extricate her foot from Miss Duncan's grasp. On the basis of the second appellant's description of her own limited and accidental physical contact, the sheriff in effect concluded that it was neither necessary nor appropriate to direct the jury about self-defence in the protection of another.

[28] However in his report to this court, the sheriff makes the following observations:

"Having regard to the opinion of your Lordships in Dewar v HM Advocate 2009 HCJAC 40, I concede that the direction I gave regarding this appellant could have been better if the appellant's position was that she had assaulted Miss Duncan in an effort to have her stop any assault upon Miss Stephen. I would, however, make a number of observations ... the appellant's evidence did not actually fit in with the special defence she had lodged. Her evidence was to the effect that Miss Duncan had grabbed hold of her foot and she had shaken her foot in an effort to have Miss Duncan release her grip ... This seemed to suggest that any contact was accidental ... [The sheriff then refers inter alia to Fitzpatrick v HM Advocate 1997 SLT 796, where the admissions of the accused that they could have left the locus rather than become involved were destructive of self-defence.] Having said that, I do appreciate that it was open to the jury to accept certain parts of evidence from certain witnesses and reject other parts of their evidence. In that event, there was a potential scenario before the jury that the appellant was intentionally hitting Miss Duncan whilst trying to protect Miss Stephen from the attentions of Miss Duncan. Your Lordships might consider for that to be the case, the jury would have had to accept much of the evidence of Mr Singh and Miss Duncan insofar as relating to what the appellant actually did to Miss Duncan, but then to have entertained a reasonable doubt to the effect [that] the appellant had so acted to protect Miss Stephen."

[29] I agree with the sheriff's analysis. I consider that it was open to the jury to disbelieve the second and third appellants about the nature and extent of the second appellant's physical involvement, and on that matter to accept the evidence of Mr Singh and Miss Duncan, namely that the second appellant was physically involved in the struggle, and that she deliberately stood on Miss Duncan and kicked her in the face. It was also open to the jury, despite having disbelieved the second appellant about the nature and extent of her physical involvement, to accept that the second appellant acted as she did, not because she wanted to join in the attack on Miss Duncan, but because she wanted to protect her friend (the third appellant) by stopping the fight and separating the protagonists. In such circumstances the jury would require adequate directions about the concept of self-defence in the protection of another: cf Dewar v HM Advocate cit sup. No such directions were given. The question then arises whether that lacuna was productive of a material miscarriage of justice. In my view, it was: for if the jury attempted to apply the standard directions relating to self-defence, as given by the sheriff, it was obvious that the second appellant would fail to satisfy the condition of being unable avoid the attack (for example, by leaving the locus). I consider therefore that the jury required specific guidance about self-defence in the protection of a third party as envisaged in Dewar v HM Advocate. In the absence of that guidance, the jury may not have followed the appropriate line of reasoning, to the prejudice of the second appellant. I would accordingly sustain the appeal on behalf of the second appellant and quash her conviction. However as I am in the minority on this matter, the second appellant's appeal fails.

The third appellant

[30] The sheriff's charge must be construed as a whole. The charge gives clear directions inter alia that (i) three conditions must be fulfilled in order to satisfy the legal definition of self-defence; (ii) no onus of proof rests on the accused; rather it is for the Crown to prove that the accused was not acting in self-defence; and (iii) someone acting in self-defence cannot be guilty of the crime of assault. The sheriff's reference in his charge to the third appellant's acceptance that she had "assaulted" Miss Duncan was, in my view, a rather loose short-hand reference to the third appellant's acceptance in her evidence that she had indeed been engaged in a physical struggle with Miss Duncan, during which she (the third appellant) had inflicted blows upon Miss Duncan. It was perhaps unfortunate that the sheriff used that particular word, but when viewed in context, I am unable to accept that the jury would be under any misapprehension about the law applicable to self-defence. Accordingly I am not persuaded that there was any material misdirection leading to a material miscarriage of justice.

Decision

[31] For the reasons given above, the first, second and third appellants' appeals are refused.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lady Paton Lord Carloway	[2010] HCJAC 68 Appeal No: XC227/09, XC228/09 and XC226/09 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEALS by (FIRST) BARRY BURGESS, (SECOND) KERI-ANNE CONNOLLY and (THIRD) CARRI-ANN STEPHEN Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

First Appellant: J Macdonald; Drummond Miller, Edinburgh

Second Appellant: S Collins, Solicitor Advocate; Capital Defence, Edinburgh

Third Appellant: K McCallum; Drummond Miller, Edinburgh

Respondent: A Mackay, A.D.; Crown Agent

9 July 2010

[32] I agree with Your Ladyship's introduction, narrative of the special defences, evidence, charge and submissions. I also agree with Your Ladyship's disposal of the appeals of the first and third appellants for the reasons given. I concur with the qualification outlined by Your Lordship in the chair concerning the effect of a failure to cross-examine. However, I am unable to agree with Your Ladyship that the appeal for the second appellant should be sustained.

[33] At the conclusion of the trial, the jury were faced with two different accounts in relation to the second appellant. On the one hand, the testimony of Gary Singh and Eilidh Duncan pointed to a straightforward concerted attack upon Miss Duncan by both the second and third appellants. On the other, the second appellant gave evidence that she approached Miss Duncan with a view to separating Miss Duncan and the third appellant. But in carrying out that exercise, she denied delivering any deliberate blow to Miss Duncan, although she may have touched her when trying to release Miss Duncan's grip on her foot. The third appellant said that the second appellant had kicked Miss Duncan, but only to free Miss Duncan's grip on her (the second appellant's) foot. There was no testimony pointing to any blow being struck by the second appellant in defence of the third appellant.

[34] Although, as the Sheriff reports, it is, of course, open to a jury to accept parts of the witnesses' evidence and to reject others, no matter what parts were selected in this case, there were none that pointed to a blow being stuck by the second appellant in defence of the third appellant. The "potential scenario" referred to by the Sheriff could only be regarded as a speculation running counter to the testimony. The reality is that this appellant did not say that she had struck Miss Duncan deliberately at all. She certainly did not say that she struck any blow in defence of the third appellant.

[35] When her law agent came to address the jury, she mentioned that the second appellant "went in" to split up Miss Duncan and the third appellant. In that context the agent referred, in passing, to the second appellant as "acting in defence of" the third appellant. But when she came to deal with the evidence of assault, her address to the jury was that the evidence of Gary Singh and Miss Duncan should be rejected as incredible or unreliable. She proceeded to ask the jury to accept the evidence of the second and, to a degree, the third appellant that any kick on Miss Duncan by the second appellant was: (a) accidental and thus could not constitute an assault; and (b) delivered when trying to free herself from Miss Duncan's grip.

[36] In that situation, there was no requirement upon the Sheriff to give the jury directions on the defence of another. The jury had an alternative. They either accepted the evidence of Gary Singh and Eilidh Duncan of a concerted attack by the second and third appellants or they accepted that the accounts of the second and third appellants, that there had been an accidental kick or one used to free the second appellant, raised a reasonable doubt in their minds. But there was no middle ground whereby they could accept that the second appellant had attacked Miss Duncan but only in order to protect the third appellant. In these circumstances, the second appellant's appeal ought to be refused.