John McInally v. Her Majesty's Advocate [2006] HCJAC 48

The appellant was charged on indictment with:- "On 20 December 2003 at Penicuik Public Park, Carlops Road, Penicuik, Midlothian you ... did assault Richard Taylor ... and did repeatedly punch him on the head and repeatedly strike him with a brick or other similar instrument on the head all to his severe injury and the danger of his life." The appellant went to trial before a sheriff and jury at Edinburgh Sheriff Court. He adhered to a special defence which stated that "he was acting in self-defence, in that the complainer had attacked him with a brick." At the close of the Crown case the charge was amended by deletion of the words "and repeatedly strike him with a brick or other similar instrument on the head". There was no submission that there was no case to answer. In due course the jury, by a majority verdict, found the appellant guilty of the charge as amended. The appellant appealed against conviction on three grounds:- (1) the shewriff ought to have directed the jury that they could not rely upon the procurator fiscal depute's question as evidence of an unprovoked attack as the appellant had denied that proposition (2) the sheriff failed to give adequate direction to the jury regarding the special defence of self-defence in that the sheriff failed to direct the jury that, the special defence having been lodged and spoken to by witnesses, they had to look to the evidence to find corroborated evidence to displace the special defence. It was argued on behalf of the appellant that the jury were not entitled to take the appellant's admission that he hit the complainer without its qualification that he did so in self-defence. The only direct evidence of what occurred was therefore exculpatory (3) the verdict returned by the jury was perverse in that no jury properly directed could have returned such a verdict.