Motorist who drove at cyclist wins appeal against assault conviction over sheriff’s misdirection on ‘mixed statements’

The High Court of Justiciary Appeal Court ruled that there had been a “miscarriage of justice” after the sheriff failed to explain to the jury that, even though the accused had responded with “no comment” to questioning in his police interview, his statements to the officers during the interview that the collision with the bicycle was “accidental” and that he was acting in “self-defence” when he punched the complainer was available to them as evidence.

Lord Menzies, Lord Turnbull and Lord Glennie heard that the appellant Gary McKnight was sentenced to four years’ imprisonment after being convicted following a trial at Falkirk Sheriff Court in January 2018 of assaulting John Rawding to his severe injury and to the danger of his life by driving his car at him, and assaulting Craig Thomson by punching and kicking him on the head and body.

‘Mixed statements’

The court was told that the complainer in the first charge had stolen a bike belonging to the appellant’s girlfriend Lynne Crawford which had been left unsecured outside a friend’s house in Tullibody.

She phoned the appellant, who was driving home in his car at the time, and who said he would look out for it.

The appellant then came across the complainers in Menstrie, a short drive from the house in Tullibody, performed a U-turn and began chasing them in his car.

The complainers were now aware that they were being pursued and headed for a gap in a wall leading from the pathway at the side of the road to some houses.

The appellant mounted the grass verge and drove his vehicle towards the gap, and in doing so he struck the complainer in charge 1, and thereafter he got out of the vehicle and assaulted the complainer in charge 2.

Having been detained by police, in his interview at the police station the appellant, whose solicitor was present, at various stages replied “no comment” to questioning but also went on to give an explanation as to what had occurred.

In short, in relation to the first charge he stated that he was attempting to cut off the first complainer’s escape by driving into the gap in the wall and that he did not intentionally hit the complainer with his car, and in relation to the second charge, he admitted striking the second complainer but said the complainer had first tried to hit him.

‘Material misdirection’ 

In his charge to the jury the sheriff did not give a direction on the appellant’s “mixed statements”, but he considered that in light of the directions he gave that the jury were well aware that they could take into account the exculpatory parts of his statements to the police in deciding the critical issues.

On behalf of the appellant, who did not give evidence at trial, it was argued that the contents of the appellant’s interview with the police were so central to his defence that the failure to give a “specific direction” as to how they might treat mixed statements amounted to a miscarriage of justice and the convictions should be quashed.

It was submitted that there were three deficiencies in the charge: the jury were not directed that the whole statement was available to them as evidence in the case; they were not directed specifically that the statement was available as evidence where the accused had not given evidence at trial; and they were not directed that the mixed statement in this case was an exception to the general rule against hearsay evidence. 

It was submitted that it was a “material misdirection” for the sheriff not to give a specific direction to the jury that, in the absence of oral evidence from the accused in the witness box, the contents of his interview with the police were available as evidence to be considered. 

Allowing the appeal, the judges observed that the exculpatory parts of the appellant’s police interview were the “crux” of his defence and the sheriff’s omission amounted to a miscarriage of justice.

‘Miscarriage of justice’

Delivering the opinion of the court, Lord Menzies said: “It is not disputed that the appellant’s police interview was a mixed statement. With regard to charge 1, the appellant accepted that he caused his car to collide with the bicycle being ridden by the complainer, but his position was that he was attempting to shut off a gap through which the complainer was seeking to escape, and that the collision was not intentional. 

“With regard to charge 2, he accepted that he hit the complainer, but only after the complainer had hit him first, and that he was acting in self- defence. There were plainly elements of the interview which were exculpatory, and other elements which were incriminatory. 

“The interview was led in evidence by the Crown. The appellant did not give evidence on his own behalf. This might be described as a paradigm of a mixed statement requiring a direction to the jury.

“In his report to this court the sheriff accepted that he did not give a direction on mixed statements, but expressed the view that in light of the directions which he gave…the jury were well aware that they could take into account the exculpatory parts of his statement to the police in deciding the critical issues. We do not agree.”

The judges emphasised that they were not suggesting that a trial judge must take a “purely formulaic approach” and repeat word for word the possible directions on mixed statements given in the jury manual, but added that it was is “essential” that a trial judge should cover certain aspects in his or her own words.

Lord Menzies added: “The sheriff’s failure to give a direction specifically about how the jury should treat the police interview was exacerbated by the way in which he directed the jury in other passages of his charge.

“Moreover, despite the submissions for the Crown to the contrary, we consider that this misdirection has resulted in a miscarriage of justice. The exculpatory parts of the appellant’s police interview were the crux of his defence. 

“They were the only place in the evidence in which the appellant’s position on each charge was to be found. The absence of a clear direction as to mixed statements, and how the jury should consider the police interview, in the context of the charge as a whole, gave rise to a real risk of confusion.

“For these reasons we are satisfied that a miscarriage of justice has occurred, and we shall quash the convictions.”