Sean Stephen Hughes V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon,Lord Marnoch,Lord Eassie |
| Judgment Date | 22 January 2009 |
| Neutral Citation | [2009] HCJAC 35 |
| Published date | 16 February 2009 |
| Docket Number | XC268/07 |
| Court | High Court of Justiciary |
| Date | 22 January 2009 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Eassie Lord Mackay of Drumadoon Lord Marnoch | [2009] HCJAC 35 Appeal No: XC268/07 OPINION OF THE COURT delivered by LORD MARNOCH in NOTE OF APPEAL AGAINST CONVICTION by SEAN STEPHEN HUGHES Appellant against HER MAJESTY'S ADVOCATE Respondent: _______ |
[1] When we refused the appeal against conviction in this case we stated that we would give our reasons in writing at a later date. Only three grounds of appeal were insisted in and with two of these, ground 1 and ground 3(ii), we can deal quite briefly.
[2] Ground 1, which was related to a charge of assault, was to the effect that the sheriff should have charged the jury on the subject of the special defence of "defence of another". The need for this was said to arise from the evidence of the appellant to the effect that he became involved in fighting with the complainer in an effort to help his companion, Mr MacDonald, who was getting the worst of a fight which he, MacDonald, had instigated a short time previously. MacDonald, for his part, deponed that the appellant was trying to stop the fight. Needless to say, however, there was other evidence to the effect that both men ran across the street and attacked the complainer. At all events, the main problem about this ground of appeal is that the only notice of special defence lodged on behalf of the appellant was in specific terms narrating, as it did, that the appellant had acted in self defence "he having been assaulted by the complainer(s) and having reasonable cause to believe that he would be further assaulted." Not only that, but it was also accepted that the defence agent had at no stage in the trial either referred or attempted to refer to the doctrine of "defence of another".
[3] In the foregoing circumstances we are quite satisfied that the sheriff was entirely correct in restricting his directions to the terms of the notice which had been lodged. It is very questionable whether on any view there was sufficient evidence regarding the alleged justification for the appellant's involvement in the fight or the particular part which he then played in it to justify recourse to the doctrine in question but, even if there was, the Crown had been given no notice that this was supposedly an issue in the case.
[4] We accordingly rejected this ground of appeal.
[5] Likewise, we rejected ground of appeal 3(ii) which alleged that a material misdirection arose out of the following passage in the sheriff's charge:-
"Now, you heard evidence from the defence. The rules about the presumption of innocence, these apply only to the Crown case. They don't apply to the defence case. The accused gave evidence. You treat his evidence in the same way as you would treat the evidence of another witness in terms of assessing his evidence, but there is no standard of proof to be met by the defence. Any evidence which clears him, you have to acquit him, even if that evidence stands alone and even if you don't completely believe him, if what he says leaves you with a reasonable doubt about his guilt, you have to acquit him."
[6] For the sake of completeness we should add that two pages earlier in his Charge the sheriff said this:-
"There are four important rules, really, the crucial rules of how you...
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