Marc Carr V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lady Smith,Lord Philip |
| Neutral Citation | [2013] HCJAC 87 |
| Court | High Court of Justiciary |
| Year | 2013 |
| Docket Number | XC681/12 |
| Published date | 23 July 2013 |
| Date | 27 June 2013 |
| 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...
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