Its ok when the Hemphills are committing murder but give one of them a kicking and hes of to the police ! HIGH COURT OF JUSTICIARY OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION and SENTENCE by HENRY KERR Appellant; against HER MAJESTYS ADVOCATE Respondent: 11 November 1998 The appellant is Henry Kerr who went to trial at the Sheriff Court at Greenock on an indictment which included, as Charge 1, a charge alleging that the appellant did in Dubbs Road, Greenock ... assault [the complainer] and did knock him to the ground and punch him repeatedly on the head to his severe injury. At the conclusion of the trial the jury returned a verdict finding the appellant guilty of this charge under deletion of the word repeatedly. It is the form of this verdict, with the deletion of repeatedly, which has given rise to the appeal. The appellant contends that, having deleted this word and so having convicted the appellant of assault by delivering one punch, the jury could not consistently include in the conviction the aggravation to his severe injury. The contention was therefore that the court should allow the appeal to the extent of substituting a conviction under deletion of the words to his severe injury. It should be noted that, although the libel appears in the terms which we have quoted, according to the evidence events occurred in two stages. The first stage took place in the close leading to the complainers flat. The appellant admitted inflicting a single punch there, with the result that the complainer had bounded out of the close. He also admitted that in striking this blow he had not been acting in self-defence. For this reason the Sheriff directed the jury that they would be bound to find the appellant guilty of at least this single punch in the close. He went on to say that if that was to be your verdict on that charge then you would return a verdict of guilty under deletion of the words knock him to the ground and and then the words repeatedly on the head to his severe injury, all those words would come out. So you would be finding Mr. Kerr guilty of assaulting Mr. Hemphill and punching him, full stop, if that was to be your verdict. If, then, the jury had wished to return a verdict finding the appellant guilty only of the single punch in the close, according to the Sheriffs direction, they would have deleted not only the word repeatedly but also the words on the head to his severe injury. They did not do so. The reason why the Sheriff directed the jury that, if confining any guilty verdict to the first part of the incident, they should delete the other words was that it appeared from the evidence - including evidence from the appellant - that in the second part of the incident, which occurred very shortly afterwards when the appellant and complainer met up outside the nearby post office, he had inflicted more than one blow on the complainer. The appellants defence to this second part of the charge was that he had been acting in self-defence. The contention for the appellant was that, by deleting repeatedly, the jury had shown that they were convicting the appellant simply of having struck the single blow in the close and that they must therefore have accepted his defence of self-defence in relation to the second part of the incident. In these circumstances, since there was nothing in the evidence to show that the blow at the beginning of the incident had caused the severe injury, the jury had not been entitled to return the verdict which they did, including the aggravation to his severe injury. In our view that submission falls to be rejected. In the first place the jury had been directed that, if they were satisfied that the assault by the appellant did not cause any injury at all to the complainer, they should delete the words to his severe injury. Since they left the words in the libel of which they convicted the appellant, the jury must have concluded that what he did to the complainer resulted in severe injury to him. We are satisfied that there was evidence, both medical and lay, which entitled the jury to reach that conclusion. In the nature of things we cannot tell precisely why the jury chose to return the verdict with the deletion of repeatedly. None the less the verdict shows that the jury took the view that the Crown had established that the appellant had knocked the deceased to the ground and had then punched him on the head. Again, we are satisfied that there was evidence which would have entitled the jury to reach that view. We refer in particular to evidence from the appellant himself to the effect that outside the post office he punched him one right in the face, your honour, and knocked him tae the ground. Q. But was that the word you used, battered him. - I just punched him in the face. Q. No, no, was that the word you used battered? - Well, a battered him, aye, my lord, its just the same. Later in cross-examination we find a passage where the accused, speaking of the same incident in front of the post office, said I jist slam wham, doon the deck and I cracked him jist in case he did have something. I wisnae gonna gie him a chance. Q. Just the twice? - Twice. Q. The twice? - Well, its really three times really if you want to put it that way. BY THE COURT: Sorry, you said you smacked him once, he went down on the deck and then what did you do? - I cracked him again. Q. You kicked him again? Naw, I cracked him again. Q. You cracked him again? - Nae feet used. The appellant went on to say that he knocked the complainer to the deck and I seen blood, I didnae want to approach him myself. (inaudible) Well, thats whit his nose was, a wee bit comin doon like that. That was the only blood which he saw. If the jury accepted this evidence of the appellant, it would have justified them in returning a verdict that the appellant knocked the complainer to the ground and punched him. They would also have been entitled to conclude that these blows were the cause of the injury to the complainer. Mrs. Richards accepted that, viewed in isolation, this evidence would have entitled the jury to return the part of the verdict where they found that the appellant knocked the complainer to the ground and punched him. But she reminded us that the Sheriff had directed them that they required to find the appellant guilty at least of the single punch in the close. If they had followed that direction, as we should assume they would have done, then they would have found the appellant guilty of inflicting both the punch in the close and the punch outside the post office. Since the word repeatedly meant more than once, if that had really been the jurys approach, they would not have deleted repeatedly. We should therefore reject the view that the jury had found him guilty of any assault outside the post office. On the contrary, the proper conclusion was that they had accepted his evidence that he had acted in self-defence at that stage and had therefore convicted him only of the assault in the close. The argument turns on the deletion of the word repeatedly. It is true that, when drafting indictments, the Crown use the adverb repeatedly to refer to anything which occurs more than once. But the jury were not directed that they should apply that meaning to the word and the Oxford English Dictionary gives the definition more than once, again and again, frequently. The jury may therefore have taken the word repeatedly as meaning again and again, frequently and, by deleting it, wished to indicate that they did not consider that the appellant had punched the complainer again and again or frequently. In that connexion it is relevant to notice that the complainer gave rather confused evidence which was to the general effect that the appellant had indeed struck him again and again. As the Advocate Depute pointed out, by deleting repeatedly the jury may well have been adopting the only means open to them to show that they were proceeding, not on the version of events given by the complainer, but, instead, on the version given by the appellant who spoke to the single punch in the close and to knocking the complainer down and punching him once outside the post office. In these circumstances we are satisfied that on the evidence before them it was open to the jury to return a verdict in the form which they adopted. We therefore refuse the appeal against conviction.
Posted on: Wed, 08 Oct 2014 09:24:09 +0000
Trending Topics
Recently Viewed Topics
© 2015