No provision for report from Sheriff Appeal Court in appeal to High Court

Lady Dorrian

An appeal from the Sheriff Appeal Court must proceed on the basis of a judgment of that court, and there is “no provision or authority” for the provision of a report from the court, the High Court of Justiciary has stated.

Statutory provisions allow for the submission of a report in certain circumstances, but the “normal approach” for an appeal from one appeal court to another is that the appeal is based on the judgment issued by the lower court, the judge said.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Turnbull made the observations as they refused an appeal against conviction by Grzegorz Stolarczyk, who was found guilty of assaulting his former partner by pushing her on the body and causing her to fall to the ground to her injury.

The court heard that the appellant went to trial in August 2016 at Stirling Sheriff Court, where the complainer gave evidence that the accused pushed her from behind, causing her to fall to the floor, graze her knee and bang her head on a wall.

The police officer who interviewed the complainer noted that she had a graze to her right knee, which was consistent with the complainer’s account of events.

In his 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.

However, the sheriff convicted the appellant after rejecting that aspect of his statement which contained the qualification of having acted in self-defence.

An appeal to the Sheriff Appeal Court by way of stated case was refused, but the court’s reasons for doing so appeared to showed that the appellant’s statement had been treated as a “mixed statement”, and mistakenly referred to the appeal as being one against the refusal of a “no case to answer” submission.

The court also considered that the case of Owens v HMA 1946 JC 119, decided prior to the enactment of section 160 of the Criminal Procedure (Scotland) Act 1995, was essentially concerned with the question of onus, and did not assist the appellant.

The Sheriff Appeal Court stated that “the sheriff was correct to reject the section 160 submission” and was entitled to accept the sufficiency of the evidence before him, but leave to appeal to the High Court of Justiciary was granted.

Subsequently, the High Court court received what purported to be a “report” from the Sheriff Appeal Court, consisting of a note from the appeal sheriff who delivered the court’s decision.

The appellant presented two grounds of appeal to the High 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; and second, on the authority of Owens, the complainer’s evidence could not be used to displace the appellant’s special defence where her evidence was the only evidence of the assault.

But before addressing the merits of the appeal, the judges addressed the procedural issues raised.

The court noted that “no question of sufficiency arose during the trial”, but the way the sheriff phrased the question in the stated case appeared to suggest a question of sufficiency.

Once the matter came to the Sheriff Appeal Court the argument advanced was one on sufficiency, meaning the mistake in categorising the case as one in which a submission of no case to answer had been made was “more understandable”.

On the issue of the “report” from one of the appeal sheriffs, the judges noted that as a report from one of the members of the court, the document could not be described as a report from the Sheriff Appeal Court.

“More importantly,” the Lord Justice Clerk said, “even if it was such a report, there is no provision or authority for the provision of such a report. The normal approach on appeal, particularly an appeal from one appeal court to another, is that the appeal proceeds on the basis of the judgment issued by the Court.

Delivering the opinion of the court, Lady Dorrian explained: “Statutory provisions allow for the submission of a report in certain circumstances – for example, in solemn proceedings where the decision under attack is not one of the Trial Judge but the jury, and where some explanation of the background, evidence and issues may be required; or in cases such as a sentence appeal, where no judgment will usually have been issued by the court.

“Otherwise, the appeal must proceed on the basis of the judgment of the court appealed against. That this is the procedure to be adopted in appeals from the Sheriff Appeal Court to the High Court of Justiciary is clear from the terms both of the primary legislation and the Criminal Procedure Rules which govern such appeals.”

Turning to the merits of the appeal, the appeal judges observed that that the argument for the appellant proceeded on a “false premise” of fact, namely that the sheriff’s reason for concluding that self-defence had been excluded lay in his acceptance of the evidence of the complainer.

The Lord Justice Clerk said: “The sheriff made it quite clear that his reason for rejecting the issue lay in his assessment of the statement made by the appellant, looking at that statement in all its parts…We consider that the sheriff was correct in reaching this conclusion.”

She added: “On the basis of the statement made by the accused the question of self-defence does not arise at all. In our view, the statement is not in fact a mixed statement at all. Even if the statement were to be treated as such, it is quite clear that in a case of a mixed statement the sheriff may accept the admission and reject the qualification.

“In the present case what the sheriff did accords entirely with what is suggested in that case as a legitimate approach. Once the qualification had been rejected on this basis, the sheriff was left with an admission which constituted evidence of an unjustified physical attack on the complainer… Accordingly, we consider that there is no merit in this appeal which must be refused.”

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