Gary McKnight v. Her Majesty’s Advocate [2018] HCJAC 64

Note of appeal against conviction:- On 29 January 2018, at Falkirk Sheriff Court, the appellant was convicted after trial of two charges:- (1) on 25 August 2015 in Menstrie assaulting John Rawding to his severe injury and to he danger of his life by driving a motor vehicle at him whilst he was on his bicycle and striking him with the motor vehicle; and (2) on 25 August 2015 in Menstrie assaulting Craig Thomson by punching and kicking him on the head and body to his injury. The appellant was sentenced to 4 years imprisonment. The appellant appealed against his conviction on the basis of criticisms of how the trial sheriff directed the jury, in particular, that the trial sheriff failed to direct the jury in relation to mixed statements by the appellant. The circumstances were that the appellant did not give evidence at trial, however, he had put forward a position at police interview, namely, that the collision with the bicycle in charge 1 was accidental thus lacking the necessary intention for it to be an assault. The appellant’s position in relation to charge 2 was that any force used by him against the complainer was in self-defence. It was submitted that given the contents of the statement were properly to be regarded as ‘mixed’ the trial sheriff ought to have given clear directions on mixed statements to the jury. It was submitted that whilst the sheriff had made some reference to the contents of the appellant’s police interview, in particular, those parts that consisted of “no comment” it was also necessary to direct the jury on the exculpatory elements of the interview and the use the jury could make of these was not explained to the jury. Whilst there was some reference in the charge to parts of the interview “that pointed to innocence” and “if you believe him...you must acquit him” it was submitted that it was incumbent on the trial sheriff to fully direct the jury on mixed statements. In particular, the jury were not directed that the whole statement was available to them as evidence in the case, nor directed specifically that the statement was available as evidence where the accused had not given evidence at trial. In addition, the jury were not directed that the mixed statement was an exception to the general rule against hearsay evidence and the directions that were given were likely to confuse the jury as they were directed that “...what the witness says in the witness box that’s the evidence” it not being made clear to the jury that what the appellant said to the police by the giving of a mixed statement might amount to evidence. It was submitted on behalf of the appellant that the contents of the appellant’s police interview was so important to his defence that a miscarriage of justice had occurred and the convictions should be quashed. On behalf of the Crown it was submitted that whilst the standard directions on mixed statements had not been given to the jury, the jury would be clear on the issues in the case, namely, whether the collision in charge 1 was a deliberate attack upon the complainer or an accident and in relation to charge 2 whether the appellant’s conduct amounted to an assault or whether he was acting in self-defence. Here the court allowed the appeal. The court noted that it was not in dispute that the police interview of the appellant amounted to a mixed statement, indeed, the court referred to the interview as a paradigm of a mixed statement in that:- (1) there were elements of the interview which were exculpatory and other elements which were incriminatory; (2) the interview was led in evidence by the Crown; and (3) the appellant did not give evidence at trial. The court stated that in such cases it is essential that directions on mixed statements are given to the jury. In the present case the trial sheriff did not give specific directions to the jury as to what they could make of any exculpatory or incriminatory parts of the appellant’s interview and the court considered that amounted to a misdirection resulting in a miscarriage of justice given that the exculpatory parts of his interview were central to his defence and the only part of the evidence where the appellant’s position was given. As a result the conviction was quashed.