|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wray v Associated Newspaper Ltd and Anor  ScotCS 22 (23rd January, 2002)
Cite as:  ScotCS 22
[New search] [Printable version] [Help]
Wray v Associated Newspaper Ltd and Anor  ScotCS 22 (23rd January, 2002)
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Nimmo Smith
OPINION OF THE COURT
delivered by LORD KIRKWOOD
in the cause
Pursuer and Respondent;
ASSOCIATED NEWSPAPERS LIMITED and ANOTHER
Defenders and Reclaimers:
Act: Dorrian, Q.C., Dewar; Drummond Miller, W.S. (Pursuer and Respondent)
Alt: Mitchell, Q.C., R.W. Dunlop; Haig-Scott, W.S. (Defenders and Reclaimers)
23 January 2002
"Catherine Wray...says she was once in hospital for three days after he punched her in the eye. On another occasion he threatened her with a knife. She said: 'He is a bully, a control freak. He says he was a boxer but I've never seen him punch anything other than a punchbag that can't hit back or a woman who can't defend herself.'
She was hanging curtains when the violence first happened. 'I asked him to give me a hand. He was in a bad mood and he just punched me in the stomach.' Over the years she got used to the kicks and punches, trying hard not to provoke them. 'Anything would set them off - if I wasn't at home when he phoned; if I spoke to a man he didn't know...anything. He was obsessively jealous and possessive'.
'Over the years he punched me in the chest, punched me in the stomach, kicked me in the back. Once we were on holiday in France and he wanted me to go to a street market very early in the morning. I told him he should go on his own and he kicked me in the small of the back. I just lay there and cried.'
'He has flung me across bedrooms into wardrobes, thrown objects at me, roaring like a bull.
'In 1990 I was in bed and he came home from London. He started to bawl and scream at me, then started punching me. I curled up in a ball.
Then I thought if I could get to the patio door it would set the alarm off and the police would come. As I moved he punched me in the right eye. I ran and was behind the window when the police came but he told them something and they just left. The next day I went to hospital'. She told medical staff she had stepped on a brush but eventually admitted the truth to the surgeon who treated her.
For a while everything was fine. Then, in 1993, 'I walked into our bedroom and went to pick up his trousers off the floor. He told me to get my hands off them. I snapped and threw an ornament at the wall. That was the start again. He chased me and flung me into the wardrobe'.
'Once he pulled a kitchen knife on me, held it to my throat until it nicked me, telling me that I was doing his head in. I just stayed very still and he flung it down and went out.'
'...he turned into an obsessional, possessive, foul-mouthed control freak who would punch and kick me for no reason at all, except that he was in a bad mood'."
Submissions on behalf of the defenders
Submissions on behalf of the pursuer
"I desire to make some observations as to the circumstances in which an appellate Court may be justified in taking a different view on facts from that of a trial Judge. For convenience, I use English terms, but the same principles apply to appeals in Scotland. Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate Court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate Court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate Court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth, or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given".
"I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus:- (1) Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate Court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial Judge's conclusion. (2) The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question. It will hardly be disputed that consistorial cases form a class in which it is generally most important to see and hear the witnesses, and particularly the spouses themselves; and, further, within that class, cases of alleged cruelty will afford an even stronger example of such an advantage. Normally, the cruelty is alleged to have occurred within the family establishment, and the physique, temperament, standard of culture, habits of verbal expression and of action, and the interaction between the spouses in their daily life, cannot be adequately judged except by seeing and hearing them in the witness-box. The law has no footrule by which to measure the personalities of the spouses. In cases such as the present, it will be almost invariably found that a divided household promotes partisanship, and it is difficult to get unbiased evidence".
"In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong. If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment".
"The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it".