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No place for report from Sheriff Appeal Court on further appeal: High Court

18 April 2017

An appeal from the Sheriff Appeal Court must proceed on the basis of the judgment of that court, and there is no place for a separate report from that court, the Criminal Appeal Court has stated in its most recent published ruling.

The court made its comments in refusing an appeal against conviction by Grzegorz Stolarczyk, who was found guilty of assaulting his former partner by pushing her on the body and causing her to fall to the ground to her injury. 

The accused did not give or lead any evidence but pled self defence on the basis of a transcript of a police interview, in which he initially denied any assault but later said he had taken her mobile and she wanted to grab it back and he pushed her away. The fall was "her own intention I didn't push her enough to fall".

Before the High Court the accused argued that having wrongly proceeded on the basis that the appeal was against the repelling of a no case to answer submission, the Sheriff Appeal Court had erred in law and confidence could not be placed in its decision; and that the evidence of the complainer could not be used to displace the special defence where her evidence was the only evidence of the assault having taken place.

Lady Dorrian, the Lord Justice Clerk, who sat with Lord Menzies and Lord Turnbull, observed in delivering the opinion of the court that no question of sufficiency of evidence had arisen during the trial, but the form of one question in the stated case led to an argument on sufficiency before the Sheriff Appeal Court, which made its mistake (in written reasons issued following an extempore judgment) "perhaps more understandable than it might otherwise have been".

As the court had also received what purported to be a “report” from the Sheriff Appeal Court, consisting of a note from the appeal sheriff who delivered the court’s decision, she added: "As a report from one of the members of the court, that document could not in any event be described as a report from the Sheriff Appeal Court. More importantly, even if it was such a report, there is no provision or authority for the provision of such a report." The normal approach on appeal, particularly from one appeal court to another, was that the appeal proceeded on the basis of the judgment issued by the court; a report was provided for in circumstances such as when it was the decision of a jury rather than the trial judge that was challenged, or a sentence appeal, where no judgment would usually have been issued.

"Otherwise, the appeal must proceed on the basis of the judgment of the court appealed against. That this is the procedure to be adopted in appeals from the Sheriff Appeal Court to the High Court of Justiciary is clear from the terms both of the primary legislation and the Criminal Procedure Rules which govern such appeals."

On the merits of the appeal, the appellant's argument proceeded "on a false premise of fact", in that the sheriff made it clear that he had rejected defence on the basis of the appellant's statement, which contained no specification of any attack by the complainer. Nor had the other requirements for the defence been satisfied.

Contrary to the appellant's argument, his statement was not in fact a "mixed statement" (containing both exculpation). Even if it were to be treated as such, the sheriff was entitled to accept the admission and reject the qualification, if he had considered both.

Click here to view the opinion of the court.


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