Woman loses appeal against assault conviction following reference by SCCRC



Lord Carloway
Lord Carloway

A woman found guilty of assaulting a dog owner with a dog lead has had an appeal against her conviction refused after her case was referred to the Appeal Court of the High Court of Justiciary by the Scottish Criminal Cases Review Commission (SCCRC).

The appeal judges rejected the appellant’s claim that a Justice of the Peace had “misdirected” herself in ruling that she had intended to assault the complainer.

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Drummond Young, heard that the appellant Carol Kirk was convicted in May 2015 at the Justice of the Peace Court in Stirling of a charge which libelled that she assaulted “CM” by repeatedly striking her on the body with a dog lead to her injury.

She was acquitted of a “statutory breach of the peace”, namely section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, involving threatening and abusive conduct on the same occasion.

The justice deferred passing sentence on the appellant for six months before admonishing her.

However, the appellant asked the SCCRC to review her conviction, arguing that the justice had “reached a decision that no reasonable justice could have reached” in acquitting the appellant of the section 38 charge while convicting her of the assault.

The explanation which the justice’s legal adviser had provided to them setting out the basis for the verdict, was that, inter alia: “Even if the appellant had not intended initially to hit the complainer and only intended to hit the dog …the fact that the complainer was holding … by the collar and screamed audibly in pain after the first strike connected with her hand meant that the appellant would have known that she had made contact with the complainer and she thereafter had the intent to strike her three more times using the excuse that she had only meant to strike the dog. I found this to be a lie given that it would have been obvious to the appellant that she had hit the complainer but she still thereafter decided to continue striking said complainer, using the quite unbelievable excuse that she thought she was only striking the dog… and not striking the complainer… I found this evidence to be incredible and a lie.”

The SCCR interpreted the passage as meaning that the justice had accepted that the appellant had, with both the first and subsequent strikes, intended to strike the dog and not the complainer, and therefore referred that matter on the basis that the justice had “misdirected” herself.

However, the appeal judges described that as “misunderstanding” of the justice’s reasoning.

Delivering the opinion of the court, the Lord Justice General said: “This was a straightforward case in which the complainer said that the appellant had struck her repeatedly with a dog lead. Under cross-examination, the complainer said that the blows and screams could be heard on the recording. The content of the recording thus became evidence in the case notwithstanding that the recording does not appear to have been formally produced.

“The complainer’s evidence was corroborated by an independent by-stander who said the same. According to the justice, the audio recording supported their evidence. The justice found the appellant’s evidence, that she had only struck the dog, to be incredible, for the reasons given above regarding multiple strikes causing the complainer to scream. The justice accepted that the first blow may have been an accident, but rejected the idea that the subsequent ones were other than deliberate.

“There is no substance in the contention that the justice had accepted that throughout the incident the appellant had been trying to hit only the dog. That is not what is said either in the letter from her legal adviser to the Commission or in the stated case. There is no merit in an argument that, just because the justice accepted that the first blow may not have been intended to strike the complainer, there was somehow an absence of the requisite intent when the appellant had continued with the remaining strikes.

“The justice’s finding (22) is clear that the second and subsequent strikes were intended for the complainer. Her reasoning is consistent with the explanation proffered to the SCCRC that she had concluded that the appellant was lying about hitting the dog since it would have been obvious to her that she was striking the complainer and not the dog.”

© Scottish Legal News Ltd 2021



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