High Court refuses appeal against assault conviction arising from fight over machete outside flat

About this case:

• Citation:
  [2023] HCJAC 25
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Counsel for appellant Ryan Platt argued that the trial judge had misdirected the jury in telling them that the defence maintained that complainer Gordon Forbes was not a credible or reliable witness. The complainer sustained a laceration approximately 10cm long on his left forearm, injuring a tendon and exposing both muscle and tendon.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Pentland and Lord Matthews. G Brown, solicitor advocate, appeared for the appellant and Prentice KC for the Crown.

Said he deserved it

The complainer, who was a reluctant witness, professed to have little memory of the incident. On the day of the assault, he was sleeping in his flat having taken drugs. He was awoken by the sound of someone at his front door and went to the door holding a machete. When he opened the door, the appellant grabbed him, and they wrestled over the machete. The complainer fell to the ground and in doing so injured himself.

The appellant was identified by CCTV inside elevators at the locus. He was also identified by the complainer’s neighbour, at whose house he had mistakenly called first. In addition, he returned to the scene after the incident and spoke to the police, still clothed as he was in the CCTV footage. He told the police that he had been in the flat earlier and returned to collect some personal items that he had left.

A machete was recovered from the veranda of the complainer’s flat. The complainer’s blood was on the blade and the appellant’s DNA on the handle. When the complainer was in the ambulance a voice, identified as that of the appellant, was heard to say that he deserved it. A consultant orthopaedic surgeon described the wound sustained by the complainer as a defensive one.

Following trial, at which the appellant did not give evidence, the defence speech invited the jury to conclude that the complainer had fallen on the weapon during a struggle. In his charge to the jury the trial judge stated that the defence said Mr Forbes was not a credible or reliable witness. It was submitted that this was a misrepresentation of the defence position which gave rise to a miscarriage of justice.

Overwhelming evidence

Lady Dorrian, delivering the opinion of the court, observed: “It is clear that whilst the trial judge seems to have erred in suggesting that the defence maintained that the complainer was not a credible or reliable witness, the context in which he did so left no room for doubt that the issue for the jury to determine included the possibility that the complainer had injured himself falling on his own blade.”

She continued: “In any event, we would not have considered this single error by the trial judge to have constituted a misdirection, when viewed in the context of the charge as a whole. The judge referred three times during his charge to the proposition that the injury might have been accidental. He reminded the jury that the complainer’s evidence had been that the injury had resulted from an accident; and immediately thereafter directed them that accidental or careless injuries did not constitute assault, which was a crime of intent and for conviction to result the Crown required to prove that the contact was deliberate.”

Assessing the evidence in the case, Lady Dorrian said: “The evidence was overwhelming. There was no doubt that the complainer’s injury was caused by a machete, which had the appellant’s DNA on the handle and the complainer’s blood on the blade. The appellant did not give evidence and the only basis on which there might have been said to be an accident was the complainer’s evidence to that effect, which was completely implausible, even leaving aside the contradictory evidence of the orthopaedic surgeon.”

She concluded: “The appellant returned to the scene on what was obviously a false pretext and with the complainer’s blood on his t-shirt. Finally the jury no doubt considered that the comment attributed to the appellant added colour to what happened. In these circumstances, there cannot be said to have been any miscarriage of justice.”

The appeal was therefore refused.