Grzegorz Stolarczyk v. Procurator Fiscal, Stirling [2017] HCJAC 23

Appeal from Sheriff Appeal Court:- On 9 August 2016, at Stirling Sheriff Court, the appellant was convicted after trial on summary complaint of an assault on his former partner by pushing her on the body causing her to fall to the ground to her injury. The evidence in the case comprised of the complainer who spoke to the assault together with the contents of the appellant’s police interview in which he stated inter alia “I ... took her mobile ... she wanted to grab it back and I pushed her away” and “I just pushed her back, it was her who attacked me, I was defending myself.” On being charged at the conclusion of the interview the appellant stated:- “I was protecting myself and just pushed her back so she couldn’t attack me.” The appellant pled self-defence but did not give evidence or lead any evidence at trial. The sheriff convicted the appellant as libelled. The sheriff rejected the part of the appellant’s statement which contained the element of self-defence as he did not consider that the necessary elements of self-defence were made out from the contents of the statement, in particular, that he was under attack and had no other means of avoiding the confrontation. An appeal to the Sheriff Appeal Court by Stated Case was refused. Leave to appeal to the High Court of Justiciary was granted on two grounds:- (1) a decision that the sheriff was entitled to repel a submission under section 160 where no such submission was made was indicative of a lack of confidence in the court’s decision and amounted to an error in law; and (2) Owens v HMA 1946 JC 119 provided authority that the evidence of the complainer could not be used to displace the special defence of the appellant where her evidence was the only evidence of the assault having taken place. Here it was submitted on behalf of the appellant that Owens concerned sufficiency and where the court is faced with two competing accounts, the injury being neutral, the appellant’s account could not corroborate that of the complainer and the Crown had not displaced the qualification by corroborated evidence. On behalf of the Crown it was submitted that the statement by the appellant was not a mixed statement and that there was no issue regarding sufficiency. It was further submitted that in the event that the court did consider that the statement was mixed then the sheriff was entitled to reject the qualifying part of it and convict the appellant. Here the court refused the appeal. The court considered that the sheriff was correct to exclude self-defence on account of his assessment of the content of the appellant’s police statement in particular the absence of any attack upon the complainer and an available means of escape. The court went on to note that it did not consider the statement made by the appellant to be mixed and, even if it was to be viewed as such, a sheriff can accept the admission aspect of it and reject the qualification part. In the present case once the sheriff had rejected the qualification part of the statement what was left of the statement was an admission which amounted to an unjustified assault on the complainer. The court observed that in Owens whilst the head-note in the Justiciary case report refers to ‘sufficiency’ that is erroneous as it relates to ‘onus’. The extent to which Owens relates to sufficiency is in relation to the evidence which may allow a defence of self-defence to be put in issue.