Carol Kirk v. Procurator Fiscal, Stirling [2017] HCJAC 66

Reference from the Scottish Criminal Cases Review Commission:- On 11 May 2015, At Stirling District Court, the appellant was convicted of a charge of assault to injury. The appellant was acquitted of an alleged contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 arising out of the same incident. Sentence was deferred for 6 months at which time the appellant was admonished. The appellant sought to appeal against her conviction by stated case on the basis that the verdict was unreasonable on account of an audio recording of the events which contradicted the evidence of the complainer. On 20 November 2015 a late application for a stated case was made on behalf of the appellant, however, on 30 December 2015 the Sheriff Appeal Court refused the application for an extension of time as it viewed the appeal as unarguable. The appellant applied to the SCCRC to ask them to review her conviction ion 3 grounds:-= (a) that the identification evidence from an eyewitness was compromised by inappropriate discussions which had taken place in a witness room; (b) that the police investigation had been irregular as, despite the fact that the appellant had telephoned the police herself, the police attended at the complainer’s house first, failed to take a statement from the appellant and refused to listen to a recording of the incident which the appellant had made; and (c) that the justice had reached a decision that no reasonable justice could have reached in acquitting the appellant of the section 38 charge whilst convicting her of the assault. The Commission rejected the 3 grounds as identification was not an issue in relation to ground (a), ground (b) was unstateable and the Commission rejected ground (c). The Commission received an explanation of the basis of the verdict from the justice’s legal adviser which resulted in the Commission determining that the justice had misdirected herself in holding that the applicant had intended to assault the complainer as it appeared the intention had been to strike the dog rather than the complainer who was controlling the dog. In addition, the audio recording of the incident did not appear to include the screams which formed part of the basis for the justice’s verdict. Here the court considered the appeal by stated case and refused it. In relation to the contention that the justice had misdirected herself in relation to the issue of mens rea and the intention of the appellant the court considered that there was no merit in the substance of the appeal as in finding in fact 22 the justice made clear that “the second and subsequent strikes by the Appellant ... were intentional by the Appellant to assault the Complainer.” In relation to the issue raised regarding the apparent absence of any audible noise of any blows or screaming the court considered that the issue was not properly set out in the stated case and the court considered that the appellant’s appeal would have failed on that basis alone. However, the court went on to consider that even if the point had been properly focused in the stated case the court could not go behind the findings in fact, in particular finding in fact 18, which stated:- “After each strike by the Appellant on the Complainer, the Complainer was heard immediately screaming loudly on the Dictaphone recording.” The court considered that if a piece of real evidence was available to prove the appellant’s innocence then it should have been formally lodged until any appeal process had been concluded, however, in the present case, the audio footage was unavailable and the court had to proceed on the basis of the findings in fact which were not challenged. If the evidence was to have been challenged then a question ought to have been posed to challenge the specific finding in fact.