Lord Advocate's Reference (No. 2 of 1992)
| Jurisdiction | Scotland |
| Judgment Date | 23 October 1992 |
| Date | 23 October 1992 |
| Docket Number | No. 8 |
| Court | High Court of Justiciary |
JC
L.J.-C. Ross, Lords Cowie, Sutherland.
Crime—Assault—Mens rea—Accused entering shop, presenting imitation gun at owner, demanding money and running off when realising other people in shop—Accused explaining actions committed as a joke—Whether defence to charge of assault
A person, referred to as "X", was charged on indictment with assault with intent to rob and attempted robbery. X entered a shop and presented an imitation gun at the owner. Holding the gun in both hands outstretched in front of him, he said words to the effect: "Get the money out of the till and lay on the floor." On realising that there were other people in the shop, X ran out of the shop. In evidence X explained that his actions were a joke. The judge gave directions to the jury to the effect that if they believed X's evidence that he had no evil intent, they should acquit him. X was acquitted and the Lord Advocate thereafter referred to the High Court of Justiciary for their opinion whether X's evidence constituted in all the circumstances a relevant defence to a charge of assault.
Held (1) that X's assertion that it was a joke meant no more than that that was his motive or ulterior intention in acting as he did; (2) that X was acting deliberately and accordingly he had the necessary intent for his actions to amount to assault, his motive for acting as he did being irrelevant.
H.M. Advocate v. Edmiston (1886) 5 Irv. 219,considered.
Opinions reserved on whether the claim that it was a joke would be a relevant defence to the crime of attempted robbery.
Her Majesty's Advocate petitioned the High Court of Justiciary under sec. 263A of the Criminal Procedure (Scotland) Act 1975 following the acquittal of an accused, X, on charges of assault with intent to rob and attempted robbery and a contravention of sec. 17 (2) and (5) of the Firearms Act 1968 in the High Court at Glasgow before Lord MacLean and a jury. The petition was in the following terms: "Humbly sheweth:
"(1) That the material facts which give rise to this reference are as follows: (a) A person (hereinafter referred to as X) was indicted for trial in the High Court of Justiciary on charges of (1) assault with intent to rob and attempted robbery; and (2) contravention of the Firearms Act 1968, sec. 17 (2) and (5). (b) The case proceeded to trial before Lord MacLean at the sitting of the High Court of Justiciary at Glasgow which began on 17th February 1992. The jury found each charge not proven by a majority, (c) The complainers in charge (1) were Marie Carberry or Daly and Tiffany Sali Rubin. In the course of the trial Mrs Daly gave evidence that in the late afternoon of 4th November 1991 she was standing behind part of the counter in the shop premises mentioned in charge (1) when the door was thrown open and X entered the shop and presented a handgun at her. He was holding the gun in both hands with his arms outstretched in front of him. He said words to the effect, "Get the money out of the till and lay on the floor." At this time Tiffany Sali Rubin was crouched down behind a different part of the counter putting a jacket on to a small boy who was there with his mother. Miss Rubin stood up to see what was happening and X, seeing her, ran out of the door. Mrs Daly stated that she did not take what the accused did as being a joke and that if she had been in the shop by herself she would probably have handed over the money to him. Miss Rubin gave evidence that at approximately quarter to five or 20 minutes to five on the afternoon of 4th November 1991 she was working in the shop and was trying to get a jacket on to a little boy who was in the shop with his mother. At that time she was crouched down behind the counter, her head being below the counter. She heard a buzzer which operated when the door was opened and looked up to see X pointing a gun at Mrs Daly. X was standing with his arms extended in front of him and the gun between his hands. X said words to the effect, "Get the money out of the till and lie down on the floor." She said that he sounded serious and she took him seriously. She stood up and X, upon seeing her, ran out of the shop. She said that she did not find the incident funny and she took it as a serious incident, (d) In the course of the trial, X admitted entering the premises mentioned in charge (1), presenting an imitation firearm at the complainers in charge (1), stating, "This is a hold-up", ordering them to get down on the floor, and demanding money from them. He accepted that they were alarmed by his actings, (e) X's defence was that his actions were a joke, that he had no evil intent to assault or rob the complainers and that accordingly his actions lacked the criminal intent necessary for the commission of the crimes libelled, (f) The advocate-depute in her address to the jury submitted that it was not a relevant defence to an assault charge that the actions constituting the assault were carried out as a joke. (g) Counsel for X in his address to the jury submitted that if the jury accepted X's evidence that the actions were carried out as a joke, the necessary evil intent for the commission of the crime of assault would be lacking and X would require to be acquitted, (h) The trial judge directed the jury that assault is any attack on the person of another with evil intent, that whether or not there was evil intent was at the heart of the instant case, that the accused's evidence was that his actions were a joke and there was no evil intent, and that if the jury believed X's evidence that he had no evil intent, they would acquit him. (2) It is submitted that the trial judge ought to have directed the jury in relation to charge (1) that the accused's admitted actions constituted the crime of assault; that the necessary evil intent was inevitably to be inferred from the deliberate commission of the acts themselves; that it was not a relevant defence that the said acts were committed as a joke; and that, if the jury accepted that the said acts were committed as a joke, the jury, if otherwise satisfied as to the accused's guilt, were bound to convict. The petitioner accordingly refers the following point of law to your Lordships for an opinion: “Did the evidence of the accused that his admitted actions were carried out as a joke constitute, in all the circumstances, a relevant defence to the charges libelled against him?”"
The case was heard before the High Court of Justiciary, comprising the Lord Justice-Clerk (Ross), Lord Cowie and Lord Sutherland on 24th September 1992. Eo die their Lordships made avizandum.The arguments presented on behalf of the petitioner and X are summarised in the opinion of the Lord Justice-Clerk (Ross).
At advising on 23rd October 1992:
LORD JUSTICE-CLERK (Ross)—The circumstances which have given rise to this reference in terms of sec. 263A of the Criminal Procedure (Scotland) Act 1975 are that a person X was indicted for trial in the High Court of Justiciary at Glasgow on charges of (1) assault with intent to rob and attempted robbery; and (2) contravention of the Firearms Act 1968, sec. 17 (2) and (5). The case proceeded to trial at the sitting which began on 17th February 1992. The jury found each of the charges on the indictment not proven by a majority.
The first charge on the indictment was in the following terms: "(1) On 4th November 1991 in the premises known as Pablo's Clothing Baby wear, 1116 Maryhill Road, Glasgow, you did assault Marie Carberry or Daly, proprietrix there, and Tiffany Sali Rubin, employee there, present an imitation handgun at them, place them in a state of fear and alarm for their safety, demand money, demand that they lie on the ground, all with intent to rob and you did attempt to rob them."
In the course of the trial Mrs Daly gave evidence that in the late afternoon of 4th November 1991 she was standing behind part of the counter in the shop premises referred to in charge (1) when the door was thrown open and X entered the shop and presented a handgun at her. He was holding the gun in both hands with his arms outstretched in front of him. He said words to the effect, "Get the money out of the till and lay on the floor." At this time Tiffany Sali Rubin was crouched down behind a different part of the counter putting a jacket on to a small boy who was there with his mother. Miss Rubin stood up to see what was happening and X...
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