Cartner v Farrell [Appeal Court, High Court of Justiciary]
| Jurisdiction | Scotland |
| Judgment Date | 16 May 2012 |
| Neutral Citation | [2012] HCJAC 67 |
| Date | 16 May 2012 |
| Docket Number | No 24 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Mackay of Drumadoon, Lord Bonomy, Sheriff Principal BA Lockhart
Justiciary - Appeal - Stated case - Sheriff failing to include summary of evidence relied upon and reasons - Whether stated case deficient
Justiciary - Crime - Assault - Self-defence - Whether sheriff erred in convicting
The appellant was convicted of assault after trial in the sheriff court at Ayr. The complainer had approached the appellant, an off-duty police officer, and had verbally abused him. The complainer had punched the appellant on the face. A scuffle or fight ensued during which the men punched each other. It was alleged, and the sheriff found proved, that the appellant kicked the complainer on the head. The only evidence of this had come from the complainer. The terms of the libel, which included the appellant acting in concert and knocking the complainer to the ground, are set out in the opinion of the court. The sheriff rejected the special defence of self-defence and the appellant was convicted. The appellant appealed by stated case against his conviction. When the stated case came before the sift judge for leave to appeal, she remitted the case to the sheriff to advise on the basis in evidence for his decisions. The stated case had contained findings in fact but no summary or analysis of the evidence. The sheriff, in response, produced a brief supplementary report. Before the court, it was argued for the appellant that the stated case did not contain an adequately reasoned basis for: (1) accepting the complainer's evidence on the question of kicking; (2) excluding the special defence of self-defence; (3) convicting the appellant; and (4) in particular, for convicting him in terms which included acting in concert, knocking the complainer to the ground and punching him on the body.
Held that: (1) appeal by stated case was dependent upon presentation to the court of an account of the material events of the trial, of the evidence led, and of the court's reasons for making the findings and decisions challenged so far as necessary to enable the court properly to determine the matters raised for review in the application for stated case (para 14); (2) the stated case failed to disclose a basis for convicting the appellant of assault, while acting along with another, by punching the complainer on the head, by knocking him to the ground, and by kicking him on the body, since there was no specification of any of those in the findings in fact or in any of the explanations given; the sheriff also failed to give any indication of the basis upon which he rejected self-defence; in addition, the sheriff had not adequately explained why he accepted the evidence of the complainer about being kicked by the appellant as credible and reliable (para 16); (3) the sheriff failed to provide in the stated case and supplementary report an adequate account of the trial, the evidence led and his reasons for making the findings and decisions he made to enable the court to determine the appeal (para 16); (4) the second question as to whether the sheriff erred in convicting the appellant answered in the affirmative (para 18); and appeal allowed.
Ross Cartner was charged on summary complaint in the sheriffdom of South Strathclyde, Dumfries and Galloway at Ayr at the instance of Justin Farrell, Procurator fiscal there, the libel of which set forth a charge of assault. The appellant went to trial before the sheriff at Ayr and was convicted on 22 November 2011. The appellant appealed against his conviction to the High Court of Justiciary by stated case.
Cases referred to:
Amoco (UK) Exploration Co v FrameSCUNK [2008] HCJAC 49; 2009 JC 65; 2008 SCCR 833; 2008 SCL 1231
Ballantyne v MacKinnonUNK 1983 SCCR 97
Campbell v VannetUNK 1998 SCCR 207
Jordan v AllanUNK 1989 SCCR 202
McDonald v ScottSCUNK 1993 JC 54; 1994 SLT 673; 1993 SCCR 78
Pert v Robertson 1956 SLT 23
Petrovich v JessopUNK 1990 SLT 594; 1990 SCCR 1
Wingate v McGlennanUNK 1992 SLT 837; 1991 SCCR 133
The appeal called before the High Court of Justiciary, comprising Lord Mackay of Drumadoon, Lord Bonomy and Sheriff Principal BA Lockhart, for a hearing.
At advising, on 16 May 2012, the opinion of the Court was delivered by Lord Bonomy-
Opinion of the Court-
[1] After trial on 21 and 22 November 2011, the appellant was convicted by the sheriff of a charge of assault in the following terms:
'[O]n 24 December 2010 outside the Black Bull public house, Earl Grey Street, Mauchline you ROSS CARTNER did whilst acting along with another, assault Scott Donald Biggart, care of Strathclyde Police, Kilmarnock and did repeatedly punch him on the head, knock him to the ground, kick him on the head and body and pursue him when he tried to escape, all to his injury'.
On the motion of the procurator fiscal-depute at the close of the Crown case, the original libel was amended by deletion of the word 'repeatedly' before the reference to kicking on the head and body and by the further deletion of 'and repeatedly strike him on the head and body with your knee' immediately after the reference to kicking on the head and body.
[2] The sheriff made the following findings in fact:
'(1) On 24th December 2010 about 12.35am the appellant was in the Black Bull Public House, Earl Grey Street, Mauchline. Also present was the complainer Scott Biggart. They were not in each other's company.
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(2) For no apparent reason the complainer verbally abused the appellant calling him a "polis bastard" and "fucking policeman cunt" as well as other expletives.
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(3) The appellant asked the complainer to speak to him outside the pub.
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(4) On exiting the pub the complainer punched the appellant in the face. A minor scuffle between the appellant and the complainer ensued.
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(5) Witnesses Kevin Hunter and John Brown pulled the complainer away from the appellant to a distance of approximately fifty yards. The complainer...
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