High Court refuses appeal against man’s conviction for attacking friend with knife and bat

About this case:

• Citation:
  [2024] HCJAC 4
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

John Brown was given an extended sentence with a custodial term of five years and a two-year extension for the assault. He argued that the trial judge ought to have directed the jury specifically on how they could use a previous statement made by the complainer, who later testified for the appellant at trial.

The appeal was heard by Lord Matthews, Lady Wise, and Lord Armstrong. I Smith, advocate, appeared for the appellant and Prentice KC, advocate depute, for the Crown.

Evidence of truth

At trial, evidence was led by a neighbour who saw the complainer, who was drunk and had one arm in a sling, go into the appellant’s flat at around 11pm on the evening in question. Shortly afterwards she heard arguing and shouting for about 10 minutes, then saw the appellant on the street holding a “shiny silver stick” in his hand while the complainer ran away from him.

The complainer was treated for puncture wounds and an 8cm laceration to the back of his head at Queen Elizabeth Hospital. When the police attended the appellant’s flat, they found a broken sling similar to the one the complainer had been wearing and blood in various places. A yellow-handled knife that appeared to have just been washed was lying in an open kitchen drawer.

Unusually, the complainer gave evidence for the appellant and not the Crown, in which he stated that the appellant was not the person who assaulted him. In cross-examination the Crown challenged this evidence by putting to the complainer parts of his police statement in which he did implicate the appellant. In addressing the jury, the advocate depute relied on the various pieces of circumstantial evidence to argue for a conviction.

It was submitted for the appellant that a jury request to see the complainer’s statement suggested they may have considered that the parts of the statement referred to could be used as evidence of truth. The trial judge should have directed the jury specifically that the complainer had not accepted that the statement was true and that they could not use it as evidence of truth.

For the Crown it was submitted that the prosecution case had relied solely upon circumstantial evidence and had never invited the jury to accept the complainer’s police statement as evidence of fact. The judge’s general directions about the use to which prior statements could be put were sufficient in the circumstances of this case.

Could not have thought otherwise

Lord Matthews, delivering the opinion of the court, said of the trial judge’s directions: “In his charge to the jury, the trial judge reminded them of the need to comply with the initial directions. At a later point in his charge he reminded the jury that there were various purposes for which a witness might be referred to a prior statement. One of those was to enable the witness to adopt as part of their evidence something they said shortly after the incident.”

He continued: “Counsel conceded that the fact that the complainer had not adopted his statement was obvious. He also conceded that had the jury followed the introductory direction they could not have proceeded upon the basis that the prior statement was evidence as to fact. Those concessions could hardly have been withheld and are clearly correct. The complainer plainly did not adopt his statement and the jury could not have thought otherwise.”

On the effect of the complainer’s non-adoption of his earlier statement, Lord Matthews said: “They were bound to follow the direction which they had been given and are presumed to have done. It was not necessary for the trial judge to repeat the direction. The jury in any event had a copy of it.”

He concluded: “Unlike the cases relied on by counsel for the appellant, there was in fact a direction given as to the use to which prior statements could be put. The appeal rests on speculation and an assumption that the jury did not follow the directions they were given. It has no merit.”

The appeal was accordingly refused.