APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Smith Lady Dorrian Lord Philip	[2013] HCJAC 87 XC681/12   OPINION OF THE COURT   delivered by LADY SMITH   in   APPEAL AGAINST CONVICTION   by   MARC CARR   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

 

Appellant: Stephenson; Paterson Bell, Edinburgh

Respondent: Edwards, AD; Crown Agent

 

27 June 2013

 

[1] On 5 November 2012 the appellant Marc Carr was convicted on indictment at Glasgow Sheriff Court of the following charge:

"On 28 March 2012, at flat 11/8, 12 Dobbies Loan Place, Glasgow you did assault Lee Tobin residing at flat 11/8, 12 Dobbies Loan Place, Glasgow and did repeatedly strike him on the head and body with a sword to his severe injury, permanent disfigurement and permanent impairment."

 

He was sentenced to a period of two and a half years imprisonment backdated to the date he was first remanded in custody - 26 April 2012.

[2] There was a joint minute. The Crown and defence agreed, amongst other things, that Lee Tobin was, on 28 March 2012, taken to Glasgow Royal Infirmary and found to have three injuries, namely, a superficial laceration to his right hand, a one centimetre long, half centimetre wide vertical laceration to the left side of his top lip and a three centimetre long, six millimetre wide vertical incised wound to the left side of his lower lip. It was also agreed that the injuries were consistent with Crown witness Lee Tobin being struck with force to the face with a sharp implement and that he would be left with permanent scarring and permanently reduced sensation in his lower lip. It was also agreed that Crown label five, a sword, had been examined by Strathclyde Police forensic scientists and found to have a spot of the blood of Lee Tobin on its metal guard.

[3] Lee Tobin gave evidence at the trial. He said he lived in a flat on the eleventh floor of the tower block at the address in the charge, and that the appellant lived on the eighth floor. They knew each other. On 27 March 2012, the complainer had been socialising with the appellant in the appellant's flat and that afternoon, the appellant had called at the complainer's flat and asked him to look after 4000 valium tablets for him. The complainer said he'd think about it. The appellant was not pleased and left the house in a bad temper. On 28 March 2012, the complainer received a telephone call from the appellant who was angry and asked the complainer to go outside to fight with him. The complainer thought the appellant was angry because he had not agreed to look after the drugs. He told the appellant to come to his flat hoping he would have calmed down. The appellant did so. When he arrived there, he shouted that the complainer should open the door. The complainer saw through the spy hole in his door that the appellant had his hands behind his back and thought he must be concealing a weapon. He opened the door. After it was opened, the appellant produced a Samurai sword from behind his back, raised it above his head, brought it down and struck the complainer in the face with it. He also struck him on his hand. The complainer said to the appellant; "I'm going to stick you in for this Marc."

[4] The appellant gave evidence and his account of events was, in certain respects, different. He and the complainer knew each other, but he hadn't asked the complainer to look after drugs for him. There had been an incident on 15 March involving the complainer being arrested, as a result of which the complainer bore him a grudge. On 28 March there had been a series of telephone calls between the two men. The complainer was ranting and raving and making threats, and the appellant's nerves were shredded as a result. He expected something would happen because Lee Tobin "seemed out of control, just a crazy man". He expected to find someone at his door at any moment. An acquaintance had told him that morning that the complainer was threatening to "take his fucking head off" and accordingly "all his fears were coming true. His paranoia was going through the roof". His fears were cemented and he was certain that something was going to happen, so he telephoned the complainer who suggested they meet in a public place. He said he went outside, but the complainer did not appear. He was agitated and telephoned the complainer again. He was aggressive. The appellant said he had debated with himself whether or not to go up to the complainer's flat. If he stayed in his own flat, as he saw it "I was just putting off the inevitable of being assaulted" so he decided to go and confront the complainer. Before leaving his own flat he removed what he referred to as "an ornamental Samurai sword" and accepted was "big and scary" looking from its sheath and put it down the back of his trousers. He did not intend to use the sword. He took it to frighten the complainer.

[5] The appellant's account of what happened at the complainer's door was that when he knocked on it, the complainer shouted from behind the closed door, "what is it?", at which he crouched down and spoke through the letter box asking the complainer to open the door. The door wasn't opened. The appellant began to walk away and the complainer said, "what do I want to speak to a grass for?". The appellant said that he took a few steps from the door, it then opened behind him and on turning, he saw the complainer coming towards him, swinging a baseball bat above his head. He couldn't escape; he would have been struck if he'd turned and run, so he took out his Samurai sword and struck the complainer with it. "That was because he was trying to hit me with the bat and he's a big boy." The complainer then dropped the bat, the appellant picked it up and he returned to his flat.

[6] When the police subsequently searched the appellant's flat, they found, in addition to the sword, a baseball bat. The appellant's DNA was found on the baseball bat. The forensic scientist who carried out the DNA examination, Jacqueline Marshall, could not exclude the complainer as being one of the contributors to the DNA that she found on it. Further, the complainer accepted that he may have handled the bat at some point.

[7] We turn to the special defence in this case. The appellant had lodged a notice of special defence of self-defence which was in the following terms:

"McWilliams, Solicitor for the accused Marc Carr, pleads not guilty to the indictment and specially and without prejudice, in respect of charge two on the indictment, stated that the accused, Marc Carr, was acting in self-defence when he struck the complainer, Lee Tobin, once on the face with the sword. He, the accused Marc Carr, having come under attack by the complainer, Lee Tobin, who was wielding a baseball bat."

 

[8] At the close of the Crown case, the sheriff asked the appellant's solicitor whether the special defence of self-defence "...had been made out according to the established criteria?". Having heard submissions on that issue from the defence and from the Crown, the sheriff decided:

"That I would direct the jury the special defence of self-defence had not been made out on the evidence." (See: paragraph 35 of the sheriff's report.)

 

because, in particular, the appellant had not taken steps to avoid the imminent danger which he had identified. The sheriff thus directed the jury in the following terms;

"Normally you would have to assess the evidence and decide what evidence you accept and what evidence you reject. You would have to decide what has been proved and what has not. However, in the particular circumstances of this case, that does not arise and that's because there's no factual dispute about the crucial facts in the case. The accused accepts that he landed two blows on the complainer, he accepts (and it's in joint minute) that Lee Tobin sustained certain injuries. The issue therefore is whether or not the accused was acting in self-defence. Now, ladies and gentleman, self-defence isn't just available because someone says 'well I was acting in self-defence, please acquit me', the law regulates the self-defence and insists that three conditions, or circumstances are met. I have considered, after hearing submissions, the position about self-defence in this case and I have ruled that the self-defence is not available to Marc Carr in this case. That is because his evidence - I'm not taking sides, it's not for me to decide which version of events to accept - but on his own evidence, he explained to you he knew about the threats which were made against him. He said he anticipated trouble. He decided to go to Lee Tobin's flat and most significantly, he decided to take with him a Samurai sword. I have decided in these circumstances, in my responsibility, that Marc Carr cannot make a defence of self-defence in those particular circumstances. Now if I am wrong about that, that can be corrected in the appeal court, but the consequence of my ruling is this: you are not entitled to acquit on the charge on the basis of self-defence. Self-defence does not, in my ruling, apply here."

 

[9] In his report for this court, the sheriff explains that he considered it was not appropriate to confine his analysis of the appellant's claim of self-defence to the events on the landing, because it was not the appellant's position that he had grabbed an item that was to hand after having been attacked by the complainer. Rather, he had identified a danger, he hadn't contacted the police and rather than choosing to avoid it, he had taken a sword with him to confront an individual who bore him ill will and had, on his account, already threatened violence towards him.

[10] In the note of appeal, the written case and argument and the oral submissions made before us today, the following were, in particular, relied on: that the appellant had given evidence that he had no intention of attacking the complainer; that the appellant had given evidence that he was placed in imminent danger and couldn't leave or he would have been struck on the head by the complainer with the baseball bat; that the appellant's actions were, in the circumstances, proportionate; that the fact that the appellant took a weapon to the locus did not preclude the jury from deciding that he had been defending himself when there: Burns v Her Majesty's Advocate [1992] SCCR 536, White v Her Majesty's Advocate [1992] JC 187, Boyle v Her Majesty's Advocate [1992] SCCR. Further, in directing the jury that they could not acquit the appellant, the sheriff had usurped the function of the jury.

[11] For the Crown, the advocate depute invited us to refuse the appeal. The sheriff was, it was submitted, entitled to take a broad view of events and apply what was referred to as "the full test" as per Crawford v Her Majesty's Advocate [1950] JC 67 at 69. Here, the appellant had presented himself at the complainer's door when there was no risk to him; he had done so in possession a sword. Whilst these were matters of fact, the sheriff was obliged to apply the broad "Crawford" test. The weapon he had with him was significant and frightening. The advocate depute also referred to the case of McKay and McKinney v Her Majesty's Advocate 19 June 2013 [2013] HCJ AC 72. It was relied on because, although the court there had not been asked to consider whether or not a defence of self-defence that had been left to a jury should have been withdrawn, the elements of self-defence were said by this court not to have been made out on the evidence and to have been bound to fail. We observe in passing, however, that the court voiced no criticism of the trial judge in that case for having left the issue to the jury.

[12] The advocate depute's second submission was that if there was a misdirection, then there was no miscarriage of justice because, as in the case of McKinney, self-defence would have been bound to fail. That was because of the appellant's evidence that he took the weapon to the locus where the complainer was in his own house, where there was no immediate danger to the appellant and where he had not had to go to the complainer's flat.

[13] We turn to our decision. We accept that there are circumstances in which it is the duty of a trial judge to withdraw a special defence of self-defence from the jury, but that is, as was said in the case of Crawford, always a strong step and it is only appropriate to do so if there is no evidence from which it can possibly be inferred that the accused was acting in self-defence at the relevant time. To put it another way, so long as there is any possibility of the jury being satisfied that an accused acted in self-defence, or in the light of evidence given in support of the plea of self-defence, entertaining a reasonable doubt as to his guilt, the issue must be left for them to determine. We cannot conclude, in all the circumstances, that that possibility could be ruled out in this case on the basis explained by the trial judge. In paragraph 32 of his report, he accepts that, on one view of the evidence, the requisite criteria for the special defence of self-defence could be met. However, he then withdrew that defence on his own assessment of the evidence. He considered that it was not open to the appellant to plead the defence on the basis of what happened at the locus because of having taken a weapon to the locus. At paragraph 33 of his report he states:

"On a broad view of the whole events, including the appellant's decision to take a sword and go to the complainer's flat, it was not clear that the criteria were met"

 

but that is a reversal of the relevant test. Further, his approach to the evidence and the issue of whether it was relevant to self-defence is plainly not correct for the reasons explained by the Lord Justice General in the case of Burns and the Lord Justice Clerk in the case of Boyle where, on page 836, the Lord Justice Clerk said that it was an "over simplification" for the trial judge to direct the jury:

"If you go into a fight armed with a lethal weapon prepared to use it, then you cannot successfully plead self-defence if you do use it in the course of the fight."

 

[14] The circumstances of the present case, where the appellant's evidence was not that he was prepared to use the weapon but that he did not intend to harm the complainer, was certainly no weaker than that. In all these circumstances, we are satisfied that it was not open to the trial judge to withdraw this special defence from the jury and that a miscarriage of justice has occurred. We will, accordingly, uphold this appeal.