Appeal With Leave On A Point Of Law From The Sheriff Appeal Court By Grzegorz Stolarczyk Against Procurator Fiscal, Stirling
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Turnbull,Lord Menzies |
| Neutral Citation | [2017] HCJAC 23 |
| Court | High Court of Justiciary |
| Date | 30 March 2017 |
| Year | 2017 |
| Published date | 13 April 2017 |
| Docket Number | HCA/2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 23
HCA/2017/000122/XC
Lord Justice Clerk
Lord Menzies
Lord Turnbull
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL WITH LEAVE ON A POINT OF LAW FROM THE SHERIFF APPEAL COURT
by
GRZEGORZ STOLARCZYK
Appellant
against
PROCURATOR FISCAL, STIRLING
Respondent
Appellant: Macintosh, Findlater; Faculty Services Limited, Edinburgh for Virgil M Crawford & Co, Stirling
Respondent: Niven-Smith, AD; Crown Agent
30 March 2017
Background
[1] On 9 August 2016, at Stirling Sheriff Court, the appellant went to trial on a complaint of assaulting his former partner by pushing her on the body and causing her to fall to the ground to her injury.
Evidence
[2] The Crown led evidence from the complainer and a police officer. A joint minute of admissions, which agreed the transcript of the interview which the appellant gave to the police, was lodged. The appellant pled self-defence. He neither gave nor led any evidence. The sheriff convicted the appellant as libelled.
[3] The complainer gave unequivocal evidence of having been assaulted by the appellant just after 0600 hrs by being pushed from behind causing her to fall to the floor. She had a graze on her knee and banged her head on the wall. The police officer who interviewed the complainer with the assistance of an interpreter, noted that she had a graze to her right knee, about the size of a 50p piece. It was accepted that this was consistent with the complainer’s account of events.
[4] In the course of the police interview, the appellant initially denied that any assault took place, later admitted pushing the complainer, and finally added the qualification that he had been acting in self-defence. In the course of the interview the following statements were made:
“It didn’t happen.”
“I …..took her mobile………she wanted to grab it back and I pushed her away.”
“She turned facing the radiator and she fell on it but it was her own intention I didn’t push her enough to fall on it.”
When it was suggested to him that his admission of pushing her amounted to assault, he said:
“I just pushed her back, it was her who attacked me, I was defending myself.”
When charged with assault he replied:
“I was protecting myself and just pushed her back so she couldn’t attack me”
[5] In the statement, no further specification of the alleged attack by the complainer was given. It was suggested to the complainer in cross-examination that she punched, and tried to scratch, the complainer. The appellant did not give evidence.
The Sheriff’s decision
[6] The sheriff rejected that aspect of the appellant’s statement which contained the qualification of having acted in self-defence, and convicted the appellant. He did so because he considered that the necessary elements of self-defence could not be deduced from the terms of the statement. The elements were that the appellant had been attacked or was under reasonable apprehension of imminent danger of serious injury; and had no other means of avoiding the threat to his safety, other than to retaliate.
The decision of the Sheriff Appeal Court
[7] An appeal to the Sheriff Appeal Court by way of Stated Case was refused. The questions in the Stated Case were:
“(i) was I entitled to reject the exculpatory parts of the appellant’s statement to the police?
(ii) did the Crown lead sufficient corroborated evidence to entitle the court to conclude beyond reasonable doubt that the appellant was not acting in self-defence?
(iii) was there any direct or indirect evidence before the court which was no less strong than the appellant’s evidence as contained within his mixed statements to enable the sheriff to conclude that the appellant’s explanation was false?
(iv) was the court entitled to find that the injury to the complainer’s knee was caused by the appellant in the course of the incident referred to?
(v) was I entitled to convict the appellant?”
[8] At this stage three matters may be noted. First, that the statement appears to have been treated throughout as a “mixed statement”. Second, that despite the terms of question 2, it does not appear from the stated case that any argument as to sufficiency had been presented and no submission of no case to answer was made: the defence argument was simply that the case had not been established to the requisite standard in that self-defence could not be said to have been excluded. Third, question 3, inserted by an accepted defence adjustment, relates to the statement in Owens v HMA 1946 JC 119 at p 124 per the Lord Justice General (Normand) that in circumstances of a statement such as the present:
“The Crown cannot…take advantage of the admission without displacing the explanation or at all events presenting to the jury a not less strong case that shows directly or indirectly that the explanation is false.”
[9] The Sheriff Appeal Court refused the appeal for reasons given ex tempore and later issued to the parties in writing. Those reasons mistakenly refer to the appeal as being one against the refusal of a no case to answer submission. The court considered that Owens, decided prior to the enactment of section 160, was essentially concerned with the question of onus, and did not assist the appellant.
[10] On the basis of Morrison the court considered that the sheriff was bound to consider both the incriminatory and exculpatory parts of the statement and to decide whether he accepted the whole or any part of it. Taking the Crown case at its highest, the court was satisfied that there was a sufficiency of evidence and that the appeal must fail. The Sheriff Appeal Court stated that “the sheriff was correct to reject the section 160 submission, and in that connection the first four answers in the stated case required to be answered in the affirmative.” On the basis that the sheriff was entitled to accept the sufficiency of the evidence before him, they also answered the final question in the affirmative.
[11] Subsequently, this court received what purports to be a “report” from the Sheriff Appeal Court, consisting of a note from the Appeal Sheriff who delivered the court’s decision.
The Appeal to the High Court of Justiciary
[12] Leave to appeal to the High Court of Justiciary was granted. The appellant presented two grounds of appeal to this court. First, that a decision that the sheriff was entitled to repel a submission under section 160 when no such submission was made was inevitably productive of a lack of confidence in the rationality of the court’s decision, and constituted an error in law. Second, on the authority of Owens, the evidence of the complainer could not be used to displace the special defence of the appellant where her evidence was the only evidence of the assault having taken place.
Submissions
Appellant
[13] It was submitted that, as the headnote of the report suggests, the case of Owens concerned sufficiency, not onus, and supported the appellant’s argument: essentially all the court had were two competing accounts, the injury being neutral, and the Crown had not displaced the qualification or presented a “not less strong” case demonstrating its falsity.
[14] Reference was made to the case of Croly v HMA 2005 SCCR 389, which concerned a charge of assault to severe injury and permanent disfigurement. The Crown case consisted of the evidence of the complainer, and a detailed statement made by the appellant claiming that the complainer had attacked her to the point of near suffocation, and in fear of her life she used the knife. She also gave evidence to that effect. During the appeal an amended ground was added, to the effect that there had not been a sufficiency of evidence since the appellant’s account could not corroborate that of the complainer. In rejecting that submission the court noted that the appellant’s account involved her taking possession of and deliberately using a Stanley knife. Counsel submitted that the case could be distinguished from the present on the basis of the serious nature of the charge and the severe nature of the injury. McInally v HMA 2006 SCCR 224 could be distinguished on the same basis.
Advocate Depute
[15] The...
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