Anthony Mcguiness V. Procurator Fiscal, Alloa
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Brian A Lockhart,Lord Brodie,Lady Paton |
| Judgment Date | 11 July 2013 |
| Neutral Citation | [2013] HCJAC 82 |
| Published date | 11 July 2013 |
| Court | High Court of Justiciary |
| Date | 11 July 2013 |
| Docket Number | XJ219/13 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lady Paton Lord Brodie Sheriff Principal Lockhart | [2013] HCJAC 82 Appeal No: XJ219/13 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by ANTHONY McGUINNESS Appellant; against PROCURATOR FISCAL, ALLOA Respondent: _______ |
Appellant: J Keenan, Solicitor Advocate; Public Defence Solicitors Office, Edinburgh
Respondent: A Edwards, AD; Crown Agent
11 July 2013
Introduction[1] On 19 December 2012, after a summary trial at Alloa Sheriff Court, the appellant was convicted of the following offence:
"On 22 November 2012 at 53 Tenacres, Sauchie, Alloa you ... did conduct yourself in a disorderly manner and did ... approach Leanne Kane causing her to lock herself in a motor vehicle, placing her in a state of fear and alarm, and commit a breach of the peace."
[2] The appellant appeals against conviction. At page 15 of the Stated Case, three questions are posed. Question 2 failed to pass the sift. Questions 1 and 3 are in the following terms:
"1. Did I err in law by repelling an objection to the evidence of the complainer relating to an alleged assault on her by the appellant on 21 November 2012? ...
3. Upon the facts found to be admitted and proved was I entitled to convict the appellant of the charge of breach of the peace?"
Issues in the appeal[3] Two issues arose in this appeal: first, whether certain evidence about an alleged previous assault by the appellant on his wife (the complainer Leanne Kane) was properly admitted during the trial (Question 1); and secondly, esto that evidence was properly admitted, whether the facts found amounted to a breach of the peace (Question 3).
[4] For reasons which will become apparent, we address the second matter first.
[5] The Findings-in-Fact at pages 3 to 6 of the Stated Case disclose a deteriorating relationship between the appellant and the complainer. Findings-in-Fact 3 to 8 relate to an alleged previous assault, referred to in paragraph [2] above. Read short, the complainer maintained that on an earlier date in November 2012 (agreed by the parties to be 20 November, and not 21 November as in the Stated Case) the appellant had pushed her onto a bed, put one hand on her throat and another over her mouth, and refused to desist until the complainer was forced to say that she would try to resume a full relationship with him (the whole incident occurring in the presence of the complainers' young children aged 7 and 2). According to the complainer, she felt petrified. She went to her mother's workplace in a state of distress (a fact corroborated by her mother). She called the police and was advised that if the appellant came near her again, she should immediately telephone them. The complainer then went home, packed some belongings, and went to stay with her parents at their home at 53 Tenacres, Sauchie, Alloa. Subsequently, as is noted in Finding-in-Fact 8, the appellant was released from Alloa Sheriff Court on 21 November 2012 without being charged with, or subsequently prosecuted for, any offence.
[6] On 22 November 2012, the complainer, her young children, and her mother, returned to 53 Tenacres after an outing. The sheriff's Findings-in-Fact are as follows:
"9. The following day, Thursday 22nd November 2012 the complainer was at the home of her parents at 53 Tenacres, Sauchie in the afternoon. She and her mother had done some shopping. They collected the complainer's son from school in Tullibody at about 03:05 pm and arrived at the complainer's parents' house at between 03:15 and 03:30 pm.
10. They travelled in the complainer's mother's Nissan Micra 4 door motor car. The complainer's mother was driving. The complainer was the front seat passenger and the children travelled in the rear seat. Her younger child was in a baby seat. The car was parked by the complainer's mother in a parking bay facing onto the side of the complainer's parents' house and nose onto the pavement between the house and the parking bay. There were other parking bays there.
11. The complainer's mother and elder son went to the house. The complainer was getting out of the car. She went to get her younger son out of the back seat. She heard a car drive up and realised the Appellant was driving up the scheme. She said, 'Oh no'. She felt alarmed. The Appellant parked beside the complainer's mother's car about a car's width away.
12. The complainer's mother told the complainer to get back in the car. The complainer was in the front passenger seat. Her mother locked the car using the remote key control. She gave the complainer's elder son the keys to open the house.
13. The complainer had been provided with a 'Sky Tracker' personal alarm by the police. She was under instruction from the police to use it if the Appellant should come anywhere near her. She pressed this and telephoned the police from within the car.
14. The Appellant approached the complainer, placed his hand on the window of the car and knocked a couple of times. He said in a normal tone of voice that he wanted to talk. The complainer's mother told him to go away and he said, 'I'll get back in the car'. The complainer was on the telephone to the police. The Appellant eventually...
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