John Matthew Findlayson Brown v. His Majesty’s Advocate [2024] HCJAC 4

Note of appeal against conviction:- The appellant was convicted after trial at the High Court of a charge of assault to severe injury and permanent disfigurement by striking GC on the head with a bat or similar object and repeatedly striking him on the body with a knife. Following the obtaining of a Criminal Justice Social Work Report the trial judge sentenced the appellant to an extended sentence with a custodial period of 5 years and an extension period of 2 years. The appellant appealed against his conviction it being contended that the complainer’s statement may have been used by the jury to implicate the appellant when it was not capable of doing so and a miscarriage of justice had occurred. The circumstances were that the complainer gave evidence at trial for the appellant and not the Crown. During the course of examination in chief the complainer stated that the appellant was not the person who was responsible for assaulting him in the manner libelled. In cross-examination the Advocate depute challenged that evidence and put parts of the complainer’s police statement to him which implicated the appellant in the crime. During their deliberations the jury requested sight of the police statement, however, the trial judge refused to allow the jury to see it as the entire police statement had not been led in evidence. Counsel for the appellant at the trial invited the trial judge to give a direction to the jury in relation to what use the jury could make of those parts of the statement which they had heard but the judge refused to give such a direction. Here it was submitted on behalf of the appellant that by requesting to see the complainer’s statement it appeared that the jury may have considered that the statement could be used as evidence of truth and the jury ought to have been directed that the jury could not use it for that purpose, as the complainer did not accept that the statement was true. It was submitted that the jury should have been given a direction in accordance with normal practice (Khan v. H.M.A. 2010 S.C.C.R. 514 and the High Court of Justiciary Practice Note No 2 of 2017). Further, in failing to provide a direction there was a danger that the jury may have accepted the content of the statement as being true and the general directions at the start of the trial were insufficient to cover the situation and further directions tailored to the particular circumstances of the case ought to have been provided in the judge’s directions. On behalf of the Crown it was submitted that the trial judge’s directions were adequate and no miscarriage of justice had occurred. Further, that it was to be assumed that the jury had followed the initial directions in relation to the use of prior statements and that it had been clear from the complainer’s evidence that he did not adopt his police statement. In addition, the Crown submitted that the case presented by the Crown was circumstantial and the jury had not been invited to accept the complainer’s police statement as fact. Here the court refused the appeal. The court emphasised the importance of considering the charge as a whole which includes the introductory directions to the jury which make clear the purpose to which reference to prior statements may be put and the jury were reminded of the requirement for the jury to comply with the earlier written directions in their deliberations. The court noted that on behalf of the appellant it had been conceded that it had been obvious to the jury that the complainer had not adopted his earlier police statement as the truth and if the jury followed the directions (as they are assumed to do under reference to Clow v. H.M.A. 2007 SCCR 201) then the jury could not have proceeded upon the basis that the prior statement was evidence as to fact and there was no need for the trial judge to repeat the direction which they had already been given and which they had a written copy of.