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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> GEORGE STEWART v. PROCURATOR FISCAL, DUNDEE [2012] ScotHC HCJAC_167 (21 December 2012)
URL: http://www.bailii.org/scot/cases/ScotHC/2012/2012HCJAC167.html
Cite as: [2012] HCJAC 167, [2012] ScotHC HCJAC_167, 2013 SCL 209, 2013 GWD 2-70

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APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lord Justice Clerk

Lord Mackay of Drumadoon

Lord Philip

 

 

[2012] HCJAC 167

Appeal No: XJ808/12

 

OPINION OF THE COURT

 

delivered by LORD CARLOWAY,

the LORD JUSTICE CLERK

 

in

 

APPEAL

 

by

 

GEORGE STEWART

 

Appellant;

 

against

 

PROCURATOR FISCAL, DUNDEE

 

Respondent:

 

_______

 

 

Appellant: Duff; Capital Defence (for Boyles, Forfar)

Respondent: Brodie, QC, AD; the Crown Agent

 

21 December 2012

 

1 Procedure

[1] On 11 January 2012, at the Sheriff Court in Dundee, the appellant was found guilty of a charge of assault on a summary complaint, which as libelled read that:

"on 20 July 2010, at the East Port Bail Hostel ... Dundee [he] ... and (ST) did, while on duty as police constables, assault (AP), an employee there, and did handcuff her arms to a window, wrap sellotape around her head and cause her breathing to be restricted, all to her injury".

The sheriff convicted the appellant under deletion of the words "did handcuff her arms to a window", although he now considers that he should have convicted the appellant as libelled (see infra). The appellant was ordered to pay compensation of 1,000 to the complainer. The co-accused, ST, was acquitted.

[2] The incident concerned the activities of the appellant and his female colleague, ST, when, in the course of their duties, they visited a bail hostel where the complainer, AP, aged 47, was a social care assistant.

[3] Two matters require to be taken note of in limine. The first is that the appellant had previously been an accused in a prosecution under the Data Protection legislation. During that case, the sheriff, who convicted the appellant in the present proceedings, had presided at an intermediate diet at which an issue arose concerning the admissibility of statements made by the appellant to senior police officers. The contention for the appellant then had been that the senior officers had, in some way, misled the appellant and that their actions had thereby been oppressive. The details of the prosecution and the evidence heard by the sheriff were not further explored before this court. However, on 10 January 2011, following upon the intermediate diet, the appellant had been disbelieved by the sheriff, who had favoured the testimony of the senior officers. The appellant was subsequently acquitted after trial by a different sheriff.

[4] The sheriff reports that on 27 July 2011, during an intermediate diet in the present case, he raised the subject of his prior involvement with the appellant with his agent and asked the agent if there was any difficulty over him presiding at the trial, given the previous proceedings. The agent said "No". The sheriff did not, himself, consider that there was any material difficulty in that regard, since he was able, in terms of his judicial oath, to dismiss from his mind any previous findings on the appellant's credibility and reliability. It is worthy of comment that the minutes of 27 July 2011 contain no note of this exchange. The sheriff appears to have accepted, at the stage of adjusting the stated case, that what occurred thereafter was that, upon learning that the sheriff was to preside at the trial, the agent had telephoned the sheriff clerk depute and asked the depute to request the sheriff not to preside at the trial in the circumstances. The depute had returned the call and advised the agent that it was the sheriff's intention to preside but that, if the agent wished to do so, the matter could be raised with the sheriff in court. Notwithstanding the instruction of counsel, no application inviting the sheriff to decline jurisdiction was made at the trial diet.

[5] The second matter to mention is that, the sheriff reports that, when the trial commenced on 24 November 2011, he instructed the sheriff clerk depute to record the proceedings digitally, albeit that this was a summary trial where no such recording was required by statute or otherwise. The sheriff did not advise the parties of the reason for instructing the recording, but he explains in the stated case that it was for his own purposes, should a dispute about the evidence have arisen. It appears that the testimony was recorded on that date, on 25 November and on 20 December 2011. However, on 9 January 2012, when testimony was being given by the appellant, the proceedings were not recorded. The sheriff attributes fault for this to a substitute sheriff clerk depute (said to be "new to Dundee"), who had been unaware of the sheriff's previous instruction. Meantime, prior to the resumption of the trial on 20 December, the appellant had requested transcription of the recording (at the appellant's expense). This was refused on 15 December 2011. The only reason given for seeking transcription was the importance of the case. Ultimately the sheriff did not require to consult the recording and relied on the adequacy of his own notes.

 

2 The evidence
[6] The sheriff observes correctly that, because one of the grounds of appeal is that he erred in repelling a "no case to answer" submission, he required to "set out the evidence adduced by the prosecution" (Wingate v McGlennan 1991 SCCR 133, LJC (Ross) at 136 para (3)). The sheriff appears to have taken this dictum literally. He has taken it upon himself to rehearse almost verbatim what appears to be almost the entire testimony in the trial, including irrelevant minutiae such as the complainer's shift patterns, the intricacies of the hostel's entry-phone system, the configuration of furniture in the hostel office and a series of propositions put to witnesses, which they denied. Much of this lengthy narrative is repeated when the sheriff comes to rehearse the submissions made to him. It is recognised, in this context, that the appellant listing 406 proposed adjustments could not have assisted the sheriff in his task and may have contributed to the length of the stated case (57 pages) and related procedural documentation (a further 162 pages).

[7] The sheriff's approach to the preparation of the stated case, in its dense sequential recording of testimony, is unhelpful and has added to the burden of this court in trying to identify the essential and relevant evidence, bearing upon the issue of sufficiency. It is accordingly necessary for this court to carry out what ought to have been a straightforward exercise of paraphrasing the testimony.

[8] The complainer said that she had known the appellant for some three years through her work at the hostel. Although she had only ever met the appellant there, she had communicated with him through social networking sites up until mid-2009. The communication had been of a friendly nature, involving a mild degree of sexual innuendo. Shortly before the incident in question, on 16 July 2010 the appellant and another officer had called at the hostel to interview one of the residents, who had been complaining about a sexual assault. On this occasion, there had been some exchange of banter between the appellant and the complainer, during which the appellant had "pinged" elastic bands at her. The complainer was not, she testified, sexually attracted to the appellant.

[9] On the day before the date libelled, the same resident, who had reported the sexual assault, had approached the complainer and asked her to contact the police in connection with an outstanding arrest warrant, to which she wished to surrender. Contact was made with the police and, some time after midnight, the appellant and a female colleague, ST, called at the hostel. The complainer left the hostel office to tell the resident. When she returned, she had praised the appellant for the way in which he had dealt with the resident previously. For reasons which the complainer was unable to fathom, the appellant had responded aggressively by accusing the complainer of checking up on him. He had grown annoyed and angry. The complainer had been taken aback, but had attempted to laugh off the situation by saying something along the lines of: "Please don't flatter yourself"; and "Oh dear, are you going to take me into custody as well now?"

[10] At this the appellant took out his handcuffs and put one cuff on the complainer's right wrist, saying: "Right, where will I attach this to?" She had said "Nowhere", but he had locked her to the ring of a sash window. He had asked her if it was sore and she had replied "No", although it had been. The appellant had then approached ST and asked for her handcuffs, which he was given. He returned to the complainer, who was beginning to panic, took her other arm and handcuffed it to the other ring of the window. She was then in a "crucifix" position. Both hands were above her head. She felt humiliated and vulnerable. The appellant had then gone to her desk and taken out a roll of sellotape. The complainer was now in an "utter panic". The appellant had approached her, taken her by the head, and had begun wrapping the sellotape round and round it, fixing her spectacles to her skin. She had screamed for her co-employee, namely MC, who came to her aid. After a short period, the appellant released the handcuffs.

[11] The complainer left the office and went to tell the resident to hurry up and go with the police. She returned and the resident appeared soon after and left with the police. At that stage the complainer had burst into tears and vomited. She had been off work for several weeks after the incident and had received counselling for trauma. She had had trouble breathing during the course of the incident and the sellotape had been wrapped around her head so tightly that her glasses had been sore against her face. She had deep indentations to her skin caused by the handcuffs. The complainer was clear that it was nonsense to suggest that she had "fully participated" and "consented" to what had taken place.

[12] MC, aged 44, gave evidence. She confirmed that the appellant and ST had come to arrest the resident. The complainer had gone to get the resident and, on her return to the office, she had complimented the appellant on his handling of the sexual assault episode. She had heard the complainer asking him "Are you going to arrest me too?" At that point the appellant had taken his handcuffs and attached her to the window. MC thought this was strange, but assumed that it was meant to be "a bit of fun" and did nothing to intervene. The complainer had "kind of laughed" and had then gone quiet. The appellant had then asked for ST's handcuffs, which he took. He wandered back to where the complainer was and attached her other hand to the window. MC felt uncomfortable and awkward at what was happening as she did not understand what was going on. The complainer had remained "quiet, very quiet". She did not look happy, although she did not say anything. The appellant had then obtained the sellotape and wound it round the complainer's head "a lot" covering her nose, glasses and around her head. The complainer had made a kind of muffled noise at this point. MC had gone to her aid and cut the tape.

[13] The complainer was by this time very anxious. Her eyes were "wide" and she was breathing heavily. Once she had been released from the handcuffs, the complainer had walked out of the office, with tears in her eyes, and gone to get the resident. The police had left with the resident, after which the complainer had started to cry and had to go and be sick. She was completely distraught. She had red marks on her wrists where the cuffs had been. MC was asked various questions about the social networking communications involving the complainer and the appellant, although she had been unaware of any of this. She confirmed that the complainer had not been laughing, or engaging in banter, at the time of the incident.

[14] The third witness was a Detective Inspector, who had been asked to enquire into the appellant's conduct and that of ST. For reasons which are not immediately clear, the sheriff has narrated the content of the interview of ST (outwith the presence of the appellant) after she was detained. Although this is irrelevant to the question of sufficiency, the version of events given by ST was that the appellant had been having a carry on with the complainer. They were laughing and joking. The appellant had attached her to the window with his handcuffs and then with her handcuffs too. Although the complainer had been in a crucifix position, she was still mucking about laughing. She had not seen the appellant attaching the sellotape, but had noticed that this had been done when the complainer had told him to "get that off me". When the appellant was interviewed under caution, he had made no comment.

[15] The "no case to answer" submission, which was made on behalf of the appellant, focused upon the need for "evil intention" as being of the essence of assault. The Crown required to prove that the appellant had had the "mens rea" to commit assault. Under reference to Macdonald, Criminal Law (5th ed, page 115) and to Gordon, Criminal Law (3rd ed, para 29-30), it was contended that the Crown had failed to show that the appellant had the requisite mens rea. This was so, notwithstanding that it was accepted that it was not a defence that the appellant's actions were intended as a joke (Lord Advocate's Reference ( No.2 of 1992) 1992 SCCR 960) and that it was not possible to consent to assault (Smart v HM Advocate 1975 JC 30). The sheriff narrates, in considerable detail, passages relied on by the appellant in Young v McGlennan 1991 SCCR 738; Jamieson v HM Advocate 1994 JC 88 (applying Meek v HM Advocate 1982 SCCR 613) and Scott v HM Advocate 2012 SCCR 45. In developing the submission it was said that the sheriff required to consider the issue of consent and to ask himself whether there was evidence to show that the complainer was not consenting to what was going on. Even if the complainer had not consented, the sheriff still had to ask himself whether the appellant had a "genuine belief" that the complainer was a willing participant.

[16] Having heard the procurator fiscal depute in reply, the sheriff repelled the submission on the basis that, looked at objectively, the evidence was "potentially consistent with an act of assault" by the appellant. The sheriff narrates at length, once more, the various authorities on the subject of assault, holding that the issue of consent in relation to behaviour, which was not regarded as sexual behaviour, was irrelevant and that "if it looks like a crime, it is likely to be a crime, at least for the purposes of sufficiency".

[17] The appellant proceeded to give evidence, as did his then co-accused ST and Professor Anthony Busuttil. The appellant, who was aged 35 with 15 years' service, spoke to knowing the complainer through his visits to the hostel and contact on social networking sites over some two years prior to the incident. There had been the episode on 16 July 2010, when he said that he had had a "laugh and a joke" with the complainer and they had engaged in an elastic band fight. Much focus was made upon the content of the social networking communication. So far as the incident itself was concerned, the appellant's version of events was that the complainer had expressed surprise at how sympathetically he had dealt with the complaint of sexual assault and had said that she would write a letter of commendation. He thought that she had been joking. They were engaging in "banter and flirting" and she had put her wrists together and said: "Are you going to cuff me now?". She was giggling, so he had put the handcuffs on her. He had, in light of further chuckling, obtained his colleague's handcuffs and used them too. The complainer had continued laughing and was a bit bent over. She had said that her glasses were falling off and he had offered to sellotape them to her face if she "liked". At this, he had picked up the reel of sellotape, cut off a length, attached it to her spectacles and wound it round her head a couple of times. The complainer had said that she did not like that and had asked him to remove the tape. MC had assisted in that, but, up until then, the complainer had been "perfectly happy". He had released her from the handcuffs. The co-accused had given evidence broadly consistent with that of the appellant and her earlier statement to the police.

[18] The sheriff assessed the credibility and reliability of the witnesses against a background in which he had concluded that evidence of a deliberate attack on the person of another was all that was required to prove an assault. A victim could not consent to a non-sexual act and reasonable belief of consent was accordingly irrelevant. He accepted the complainer as "mostly credible and reliable" and MC as "wholly credible and substantially reliable". He did not regard either the appellant or ST as credible. He concluded that the complainer had not consented to what had taken place from the point of the application of the first set of handcuffs. Rather, the complainer had been, at various stages of the progressing incident, "taken aback, shocked, speechless, alarmed and terrified". Although he acquitted the appellant of that element of the assault relating to handcuffing, having had what he describes as a "an opportunity for full reflection generated by the application for this stated case", the sheriff now took the view that he had been unduly generous in having reservations about whether the handcuffing itself amounted to an assault. He now had no reservations about that and considered that to handcuff someone deliberately and without justification did amount to an assault. The appellant should, the sheriff reports, have been convicted as libelled.

[19] On the question of sentence the sheriff determined that a compensation order, in terms of section 249 of the Criminal Procedure (Scotland) Act 1995, was appropriate. He selected the figure of 1,000, having regard to his view that this assault was "painful, frightening and humiliating". He held that the sellotape was bound to have had some restrictive effect on her breathing. She had also been physically sick and been absent for several weeks and required counselling. The sheriff was told that the appellant was no longer a serving police officer as at the date of sentencing. He did, however, have some 15.5 years of service and the sheriff took the view that he would have an entitlement to a substantial pension, against which he could borrow 1,000, even if he did not have access to such funding immediately. He had been unemployed since August 2010, but had been undertaking training for well remunerated work in the off-shore industry. The sheriff was told that he could afford a financial penalty and was not invited to fix any instalment rate, as distinct from allowing a period of three months for payment.

 

Submissions
Appellant
[20] Although there were a variety of questions posed in the stated case, the submissions on conviction focused on three general areas: (1) "recusal" (question (v)); (2) sufficiency of evidence (questions (i) and(ii)); and (3) misdirection on "reasonable belief" of consent (questions (iii), (iv) and (vi)).

[21] The contention in relation to recusal was that, at the intermediate diet, the agent had understood the sheriff to be asking only about whether there was any objection to the sheriff hearing that diet. Under reference to Bradford v McLeod 1985 SCCR 379 (citing Stewart v Agnew, High Court 18 June 1953, unreported, and Law v Chartered Institute of Patent Agents (1919) 2 Ch 276, Eve J at 289), it was said that the sheriff had misdirected himself as to the appropriate test. This was not whether he was able to dismiss from his mind any previous considerations concerning the appellant's credibility and reliability, but whether the interests of justice required not merely that he should not display bias, but that the circumstances should not be such as to create in the mind of a reasonable person a suspicion of the sheriff's partiality. The question for this court was whether the circumstances were such as to create such a suspicion of bias. This was so even if, as was accepted, the appellant had not asked the sheriff to decline jurisdiction when the case called for trial. As part of this submission, there was focus on the fact that the evidence of the appellant had not been recorded. When the sheriff had instructed the recording of the proceedings, it had not been said that this was purely for the sheriff's own use. The sheriff had refused to allow transcripts to be obtained from the recording and that, coupled with the failure to record the appellant's evidence, would create suspicion in the mind of a reasonable person.

[22] The sheriff had erred in failing to sustain the submission of "no case to answer". There was no evidence that the appellant had the necessary "mens rea" to commit an assault. There was no evidence that the appellant had acted with evil intent and none from which that could be inferred. The appellant adopted the submissions which had already been made at trial level and repeated in the stated case (supra). Assault is a crime of intent and there had been no evidence that the appellant knew that the complainer was not happy about what had taken place. The sheriff had erred in holding that mere physical acts, against a background of flirtatious contact, were sufficient to establish assault. There was no evidence that the acts were calculated to cause any injury and it was not an assault to participate in a "carry on". The social networking communications and the incident four days previously were relevant.

[23] The sheriff had misdirected himself on the issue of consent. The issue was not whether there was consent to be a victim but whether the complainer had consented to participation in some form of contact where there was no intention to cause physical harm. The sheriff had erred in considering that an honest belief that the complainer was consenting did not amount to a defence (cf Scott v HM Advocate 2012 SCCR 45). It had not been, as the sheriff described it, a peripheral issue.

[24] There had been no evidence of any "injury" to the complainer and that part of the libel ought to have been deleted. Indeed the sheriff had specifically found that there was no sign of "petechial haemorrhaging" or "friction type" injury causes by the sellotape (ff 41). There was also no evidence that her breathing had been restricted.

[25] The absence of injury had a bearing on the issue of sentence. The amount of compensation ordered was excessive given the lack of injury. It was also excessive having regard to the appellant's straightened financial circumstances. He had remained unemployed and had been living on savings, which now amounted to only 2,000. He had been unable to obtain work off-shore because of his conviction. He had been able to obtain some work gardening, but that was not currently available because of the season. Finally, it was said that compensation was not appropriate in the case of a complainer who had been found to have lied in respect of certain matters and, as a matter of public policy, people who lie on oath, in relation to facts relevant to the charge, should not obtain compensation.

 

Respondent
[26] The advocate depute maintained that there was no apparent bias in the sheriff hearing this particular case. The fair-minded and informed observer would not have perceived the possibility of such bias in the circumstances. The appeal is taken against a supposed decision not to recuse taken at the trial diet. However, there was no such decision taken. It was inevitable, especially in small jurisdictions, that a sheriff might have some previous knowledge of a particular accused. That did not mean that, in every such situation, the sheriff could not preside over a trial diet. Prior knowledge was just one consideration involved. There had been no obligation on the sheriff to record the evidence, and no such suggestion that any substantial injustice had been caused as a result of the failure to record the appellant's testimony.

[27] The appellant's arguments, on sufficiency of evidence, proceeded upon a misconception of the place of consent in the crime of assault. The question was whether, in all the circumstances, the conduct, objectively assessed, had the quality which amounted to the actus reus of assault. The submissions had confused intention with motive. The fact that the appellant intended his actions to be amusing was not a defence. What was important was whether the conduct was deliberate (Lord Advocate's Reference (No.2 of 1992) 1992 SCCR 960). Especially at the stage of the no case to answer submission, it was clear from the evidence of the complainer, as corroborated by MC, that the complainer had been in a state of fear and alarm, caused at least by the sellotape being put round her head and obstructing her nose. This was a physical attack which, objectively considered, amounted to a deliberate assault.

[28] The sheriff had accepted the essentials of the complainer's evidence, as corroborated by MC. He had rejected the appellant's evidence and had a proper basis for doing so. It is true that there was some history of banter and there were situations where humour might be relevant. However, this was not one of them. The sheriff, having heard the complainer, considered that her evidence was acceptable on key matters and that the troubled areas were essentially peripheral. The question of injury was one of fact, and there was a basis in the evidence for the sheriff to hold that such an injury had occurred.

 

Decision
Declinature of Jurisdiction

[29] The question posed is whether the sheriff erred in failing to decline jurisdiction because of his previously having found the appellant incredible and unreliable. This is answered by the simple point that the sheriff was not asked to do so. An appellant is entitled to have his trial dealt with by an impartial court and that impartiality has to be objectively verifiable. Quoting the dictum of Eve J in Law v Chartered Institute of Patent Agents [1919] 2 Ch 276 (at 289), approved in Bradford v MacLeod 1985 SCCR 379 (LJC (Ross) at 382, Lord Hunter at 383-4):

"[I]f there are circumstances so affecting a person acting in a judicial capacity as to be calculated to create in the mind of a reasonable man a suspicion of that person's impartiality, those circumstances are themselves sufficient to disqualify although in fact no bias exists".

 

If the impartial and informed observer would suspect bias as a result of the judge's past involvement with an accused person, the judge must decline jurisdiction, if asked to do so. In that connection, he must, of course declare any such involvement, at least if it is unknown to the accused. In the appellant's case, the starting point for a consideration of whether bias would be suspected is the fact that the sheriff raised the issue of his past involvement with the appellant at an early stage in the proceedings. The appellant was, no doubt, aware of that involvement in any event. There was no objection to the sheriff continuing to preside. In these circumstances, the observer would assume that even the appellant did not consider that there was any suspicion of bias.

[30] The appellant's agent maintains that he understood that, when the sheriff was asking him about the matter at the intermediate diet, he was merely being asked about whether he had any objection to the sheriff presiding at that diet. That does seem somewhat improbable, given the procedural nature of the intermediate diet. Even if that was the agent's understanding, if the appellant wished to object to the sheriff presiding at the trial, it was incumbent upon him to state such an objection at the earliest possible opportunity. Once the trial was known by the appellant to have been allocated to the particular sheriff, the agent was certainly entitled to request the sheriff clerk informally to re-allocate the trial administratively in light of any perceived bias. As Lord Dunpark remarked in Bradford v McLeod (supra at 384), where such a perception exists then, especially if the matter has not previously been drawn to the court's attention, the proper practice is for the agent to do so in the manner in which it was done here. In that event, the case may be re-allocated and no issue would arise for decision. However, if it is not, the only appropriate course of action is to state the objection to the sheriff in open court so that there can be a judicial determination on the point. Such an objection can be properly minuted, if a party so desires (1995 Act s 157(2)). If no such objection is made, the sheriff (and the impartial observer) is entitled to take the view that the issue is not a live one and that the trial should proceed. In these circumstances, the court does not consider that there was, in the absence of an objection, any obligation on the sheriff to decline jurisdiction.

[31] It is correct to submit that the correct test is not whether the particular tribunal considers that it can determine the case without bias. However, the fact that a sheriff has made a previous determination on the credibility and reliability of an accused in a particular context does not automatically mean that he is prohibited from ever sitting in cases involving that accused. Were that to be the principle, considerable difficulties would be caused especially in rural or island sheriffdoms, where only one sheriff normally presides. Given the judicial training of sheriffs, and the terms of the judicial oath which they take, it is not to be assumed that the mere fact that a sheriff has found an accused incredible in respect of a particular matter means that he must be suspected of bias in a trial of that accused on a different issue. It may be a question of facts and circumstances, but no such suspicion can arise in the absence of objection in the full knowledge of the sheriff's previous involvement. Question (v) therefore falls to be answered in the negative.

 

Recording of Evidence

[32] Although the appellant seeks to place some significance on the recording of parts of the evidence but not others, the court is unable to see what relevance this had to the outcome of the trial or its fairness. The sheriff has explained that he had wished the proceedings to be recorded electronically for his own purposes, but there had been a failure to record the appellant's testimony as a result of human error. Even if there had been a question about this matter in the stated case, the court would have been unable to place any significance, especially a sinister one, on what had occurred.

[33] The proceedings were summary and there was no requirement to keep a record beyond those formal requirements prescribed by statute (Criminal Procedure (Scotland) Act 1995 s 157(1)). If a sheriff elects to keep a record of the evidence, or parts of it, in a summary trial, it is a matter from him to decide what form his record should take. He may, for example, choose to note the evidence using the traditional method of pen or pencil and paper or he may store it electronically using a keyboard and computer. He may decide to record it on a tape or in a digital file. He may use a combination of one or more of these. Whatever method, or combination of methods, is used, the sheriff is under no obligation to reveal his record to parties in a summary proceeding (cf for solemn proceedings, Act of Adjournal (Criminal Procedure Rules) 1996, rule 14.6). Indeed it would be most unusual for him to do so.

[34] Parties are free to take their own notes of the proceedings and can make such submissions to the sheriff as they wish, based on these notes. In the event of an appeal, it is for the sheriff, where appropriate, to translate his recollections, prompted by his record or otherwise, into the written stated case as prescribed by statute (1995 Act s 178(2)). In this regard, it should be observed that, even in solemn proceedings, the purpose of preserving notes or keeping a recording of the evidence is to enable review on appeal (Transco v HM Advocate 2005 JC 194) and not for first instance use. This is so even if, for the sake of convenience, authority is in practice occasionally given to a party to listen to a recording during solemn trial proceedings. Such authority would only normally be given if there were some ambiguity about what the testimony had been. No such issue arose in this case and no substantial reason for listening to the recording, far less obtaining a transcript, was advanced by the agent to the sheriff when the matter was canvassed mid-trial.

 

Sufficiency of evidence

[35] An assault is an attack on the person of another with evil intent (Smart v HM Advocate 1975 JC 30, LJ-C (Wheatley) delivering the Opinion of the Court, at 33, citing Macdonald: Criminal Law (5th ed) 115). In relation to pure sufficiency, what requires to be proved by corroborated evidence is that the accused attacked the complainer. It is not necessary in this appeal to explore potential intricacies of definition in relation to what might constitute an "attack", because handcuffing a person to a window and wrapping sellotape around a person's head both constitute physical interferences with the person of another and are undoubtedly attacks on that person, for whatever motive. If either is proved by corroborated evidence then there is a legal sufficiency of evidence to prove assault.

[36] It is not a requirement that there is corroborated evidence, or indeed any evidence in a direct sense, of an accused's intention in carrying out the attack. Intention is always a matter of inference from the proved facts (HM Advocate v Rutherford 1947 JC 1, LJ-C (Cooper) at 6; even in sexual offences, vide Spendiff v HM Advocate 2005 JC 338, Lord Penrose at para [30]). It is equally not necessary to have evidence concerning the state of mind, or attitude, of a complainer towards an apparent physical attack when applying the legal test of sufficiency. For these reasons, the appeal against the sheriff's decision to repel the "no case to answer" submission must fail. At that stage, and subject to what he made of any other evidence adduced by the defence, the sheriff would have been entitled to draw an inference from the proved facts that the appellant had the requisite intention to attack the complainer. He was therefore correct to repel the submission. Questions (i) and (ii) must be answered in the affirmative.

 

Consent

[37] Having established the sequence of events, in order to convict, the sheriff required to be satisfied beyond reasonable doubt that the appellant had acted with "evil intent"; in the sense of deliberately intending to interfere with the complainer's person, as distinct from doing something accidental or even reckless which affected her person (Lord Advocate's Reference (No 2 of 1992) 1993 JC 43, LJ-C (Ross) at 48, following Elizabeth Edmiston (1886) 5 Irv 219, LJ-C (Moncrieff) at 222-223), Lord Sutherland at 52-53, citing Macdonald (supra) at 115). On any view, the appellant's actions were deliberate and intended so to interfere with the complainer's person.

[38] Ultimately, in relation to the question of whether the sheriff was entitled to convict the appellant, the answer must be in the affirmative. He rejected the evidence that the complainer had consented to the appellant's actions, standing the complainer's testimony and that of MC in relation to the complainer's actions and state during the incident. Indeed it is perhaps difficult to grasp just how the complainer could ever have been said to have consented (as distinct from perhaps having tolerated), in advance or even at the time, to what was, on any view, bizarre behaviour in a hostel office occupied by at least two other persons. Despite the route which the law in relation to sexual offences may have taken, there is no defence of "reasonable" or "honest" belief on the part of an attacker about his victim's state of mind in the context of assault. Indeed, as the law stands at present, even if the complainer had in fact consented, it is doubtful whether that would have amounted to a defence (Smart v HM Advocate (supra), LJ-C (Wheatley) at 33). Be that as it may, whether the appellant thought he was engaging in "banter" or "horseplay" with the complainer, and no matter how he thought the complainer would react to his actions, what he did was deliberately attack the physical person of the complainer. That constitutes the crime of assault. It follows that the court does not consider that the sheriff misdirected himself on consent or belief. As the sheriff ultimately concluded, he ought to have convicted the appellant as libelled. Questions (iii), (iv) and (vi) must be answered in the affirmative.

[39] Before leaving this issue, and without exploring the matter in depth in the absence of developed argument, the court must express its reservations about the admissibility of evidence concerning communication, between the complainer and the appellant on a social networking site, which had ceased months before this incident. It is difficult to see what relevance such communication could have had to the determination of whether the appellant's actions in the office constituted an assault, in the sense of demonstrating that an assault probably did, or did not, occur. It was even more difficult to grasp the import of what a third party might have thought of such communication. On any view, the depths to which this communication was plumbed appear to have amounted to an unnecessary interference with the complainer's dignity and privacy, when compared with any probative value that the communication might have had.

[40] The question of whether the complainer suffered "injury" was a matter of fact for the sheriff to determine on the evidence. Where there was testimony which described an episode which undoubtedly involved pain and distress, provoked an episode of vomiting and resulted in a period off work because of apparent psychological sequelae, the court considers that the sheriff was entitled to conclude that the effects of the attack did amount to "injury". From the sheriff's narrative of the evidence, the complainer did experience trouble in breathing during the attack and also indentations to her skin caused by the handcuffs.

 

Sentence

[41] There is no rule of law or practice that complainers, who have been found to have lied about a particular aspect of the attack upon them, are prohibited from receiving compensation. Even if there were, the sheriff has not found that this complainer has lied, as distinct from having a poor understanding or recollection of what had happened. Having regard to the significant pain and distress caused to the complainer as a result of this unprovoked attack, occurring whilst she was engaged in the course of her employment, the court is unable to agree that the amount of the compensation order was excessive in the absence of any substantial evidence that, at the date of sentencing, the appellant was incapable of meeting the order from what appear to have been significant savings and the prospects of future employment. These prospects remain alive, even if the assault conviction has dampened them to a material extent. Question (vii) falls to be answered in the negative.

[42] This appeal is accordingly refused.

 


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