IN THE SHERIFF COURT at EDINBURGH
CASE
for the Opinion of the High Court of Justiciary at Edinburgh
STATED
by
James Peterkin Scott, Advocate,
Sheriff in the Sheriffdom of Lothian and Borders at Edinburgh
in causa
Stephen Tierney,
Appellant,
Versus
Procurator Fiscal, Edinburgh,
Respondent
Relevant procedural history, etc.
The appellant was charged with assaulting a young woman to her injury on 3rd October 2009, allegedly while on bail. He intimated a special defence of self defence. After sundry procedure, on 15th September 2010 the appellant appeared before me for trial. I convicted him of the charge under deletion of the bail aggravations, which had been deleted by amendment during the proceedings. On 17 November 2010, having considered the contents of a social enquiry report and having heard the appellant’s agent, I imposed a fine of £100.
Findings in fact
NOTE
The Crown evidence
The complainer, Casey Tyler, deponed that in the hallway at the locus on 3rd October 2009 she became involved in an argument with the appellant. She went into the living room. The appellant followed her into the living room where he punched her on the face, causing her to fall and strike her head on a TV stand. As a result of the assault she sustained a black eye and a “bump” on her head.
Police Constable Elliot Napier deponed that about 2230 hours on 4th October 2009 he spoke to the complainer, who told him that the appellant had assaulted her on the previous evening. He observed that the complainer had bruising and swelling to her right eye, which she said had been sustained during the assault. On 4th January 2010 PC Napier interviewed the appellant under caution.
Objection to the admissibility of the interview under caution
With customary clarity and brevity Mr Clark, solicitor for the appellant, objected timeously to the admission into evidence of the police interview on the ground of unfairness, in that the appellant had not been given access to a solicitor prior to the commencement of the interview: Salduz v Turkey, 2008 49 EHRR 421.
Mr Clark was aware of the (then) pending case of Cadder v Her Majesty’s Advocate (now reported at [2010] UKSC 43) which was, in effect, an appeal against the decision of a bench of seven judges in the case of HM Advocate v McLean [2009] HCJAC 97, 2010 SLT 73.[1]
Response for the Crown
The procurator fiscal’s equally brief and clear response was that the judgement in Cadder had not yet been given. The law on the issue was as stated by Your Lordships’ Court in McLean. Therefore the objection should be repelled.
The objection repelled
Having concluded that I was bound by the law of Scotland as stated by Your Lordships’ Court in the case of McClean, and that according to our law at the time of the trial no unfairness had occurred during the police interview, I repelled the objection.
PC Napier’s testimony (continued)
PC Napier noted the following questions and answers in his notebook:
‘Q: I'm investigating an incident that happened at 1 Burdiehouse Drive on 3/10/2009. What can you tell me about that?
A: I went up to see Megan. Is that Casey? We were in and we started arguing. She said her boyfriend was gonna batter me and then she went mental. I went in to the living room and sat down. She chucked something at me, maybe a phone. Then she grabbed my throat and whacked my head off the wall twice.
Q: Who else was there?
A: Casey, Megan and some other lassie I've never seen before.
Q: Is that Megan Fleming?
A: Aye
Q: How do you know Casey?
A: I used to muck about with her.
Q: Did you and Casey argue that night?
A: We had an argument and flew for me, bashed my head against the wall.
Q: Why did she go for you like that?
A: I dunno. We were arguing. She chucked something.
Q: What did you do?
A: I got up and flung her.
Q: Why did you fling her?
A: I hate people grabbing my throat. I just whacked her. I helped her up and she was alright.
Q: Did you punch her in the face?
A: I can't remember, I was rcekin. I don't think so.
Q: Tell me again why you pushed her?
A: She'd attacked me by grabbing my throat and banging my head off the wall. It was to make her stop it.
Q: Were you injured?
A: Nah, I had a lump on my head where she hit me off the wall. We were talking after.
Q: Was she hurt after you pushed her?
A: Nah she was just greetin. She was on a pure rampage then it happened. Both of us apologised to each other and I thought that was the end of it.
Q: Did you call the police?
A: No cos she said everything was sorted. We both apologised.
Q: Is there anything else you want to say?
A: No.’
Having concluded the interview under caution, PC Napier cautioned the appellant and charged him with assault on the complainer. He replied, “She started it.”
Defence evidence
The appellant Stephen Tierney deponed that on the evening of the 3rd October 2009 he had been drinking with pals. He was drinking vodka and beer. He had a good bit to drink. He said, “I was drunk, but I can remember what I was doing. When I get angry I seem to sober up quicker.”
He said, inter alia, that the complainer “lobbed something” at him which bounced off his head. She “bashed his head off the wall” two or three times. He said, “I stood up and pushed her away. It was self defence. It was a reaction. I punched her.” Later he said, “She was raging. I stood up. I punched her. She came towards me again. I skelpedher. I thought she was going to attack me.” Immediately afterwards he realised what he had done. He put his arm around her and apologised.
In cross-examination the appellant said that the complainer was “raging, really angry.” He said that she came forward and that’s when he punched her. He must have punched her hard. She fell. He felt guilty because she was a lassie. He was stronger than her and he should not have hit her. He was angry. He hates people touching his throat.
Submissions on the evidence
For the Crown
The procurator fiscal submitted that resolution of the case involved issues of credibility and reliability.
For the appellant
Mr Clarke submitted that if the court accepted the appellant’s testimony it amounted to a defence of self defence. Moreover there were two stories here. The accused did not falter in giving his testimony. The complainer’s accounts, both to the police and to the Court, were given in the presence of her mother. He asked the Court to find that there was reasonable doubt and to acquit.
Conclusions on the evidence
Put shortly, I believed the complainer, whose testimony I found to be truthful, reliable and compelling. I did not find the appellant to be truthful or reliable. From his demeanour and the way in which he answered questions I did not believe the appellant’s accounts to the police or in court except insofar as unchallenged and coinciding with the account given by the complainer. The complainer’s account ruled out self defence on the part of the appellant. PC Napier’s credibility and reliability were unchallenged. I found him to be a credible and reliable witness. Having rejected the appellant’s defence of self defence and having no reasonable doubt concerning the appellant’s guilt, I found him guilty under deletion of the bail aggravations (which had been deleted by amendment in the course of the trial).
The grounds of appeal
Fairness
The appellant appeals on the basis that evidence of the police interview ought to have been excluded on the ground of unfairness, in that the appellant was not given access to a solicitor before or during the interview. Although the judgement in Cadder v Her Majesty’s Advocate [2] was issued after the appellant’s trial had ended, having appealed timeously he is entitled to found on that judgement in this appeal.[3] Therefore it seems, with respect, that the appellant’s proposition in law is well founded and that the evidence of the interview ought to have been excluded by me.
Sufficiency of evidence
The appellant submits that as a result of the Court’s failure to apply the law as stated in the case of Salduz [4] and confirmed in the case of Cadder, a miscarriage of justice has occurred in that:
‘In the absence of the evidence of the police interview there was no other evidence to corroborate the complainer’s identification of the Appellant as responsible for the assault upon her. There was accordingly insufficient evidence of identification which could have entitled the Sheriff to convict the appellant.’
As presently advised I do not accept that the appellant’s submission on sufficiency of identification is well founded. The complainer knew the appellant from school. Her identification of the appellant as the person who assaulted her was clear, unequivocal and unchallenged. As noted above, when the accused was cautioned and charged with assaulting the complainer he replied, “ She started it. ” That part of PC Napier’s testimony was unchallenged. It seems to me, with respect, that in the circumstances of this case the appellant’s reply is capable of supporting the complainer’s testimony to a degree that provides corroboration of her identification of the accused as the person who punched and injured her. But since I heard no argument on the sufficiency of the evidence of identification, it would be inappropriate to express any concluded view.
QUESTIONS of LAW for the COURT
(i) Did I err in repelling the objection to the admissibility of the evidence of the police interview of the appellant under caution on 4th January 2010?
(ii) Was there sufficient admissible evidence before me to entitle me to make finding in fact number 6?
(iii) On the facts stated was I entitled to convict the appellant of the charge as amended?
This Case is stated by me
J.P. Scott
Edinburgh, 11th January 2011
[1] Cadder v Her Majesty’s Advocate, supra, per Lord Hope, para. 1
[2] Supra
[3] Cadde r, per Lord Hope at para. 60
[4] Supra
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