Prisoner fails in appeal against conviction for assaulting fellow inmate

The Appeal Court of the High Court of Justiciary rejected the appellant’s argument that he suffered a miscarriage of justice after ruling that there was “ample corroboration” of the complainer’s account of what happened.

Lord Menzies, Lord Malcolm and Lord Glennie heard that the appellant Sean Wilson was convicted by verdict of a jury of assaulting a fellow prisoner to his severe injury.

The assault

The complainer was washing dishes in the prison kitchen when a kettle of boiling water was thrown over his head by a fellow prisoner.

A few seconds after the attack they were found by a prison officer standing in a corridor close to where the incident occurred and were then joined by another officer.

It was obvious that the complainer had suffered severe burning injuries to the left side of his face and was in a distressed state.

At trial the complainer made a clear and positive identification of the appellant as his attacker.

The only live ground of appeal concerned the evidence from the first prison officer that the complainer was pointing at the appellant and shouting that he had thrown boiling water on him.

Deficient directions

The appellant said and did nothing in response to the accusation and the contention was that the sheriff’s directions on this part of the evidence were “deficient”.

On behalf of the appellant it was submitted that the sheriff should have directed the jury that each case turns upon its own facts and circumstances.

In particular he should have said that the appellant’s non-reaction occurred in a prison environment with other prisoners nearby.

He would not wish to state that someone else was responsible as he would be treated as a “grass”, even if he did not name another prisoner.

The sheriff should have drawn attention to these matters, and told the jury to proceed with extreme caution before taking the view that the silence of the appellant could corroborate the evidence of the complainer.

No miscarriage of justice

However, the appeal judges ruled that there was “no merit” in the submissions.

Delivering the opinion of the court, Lord Malcolm said: “It is well established that it is a question of fact in each case as to whether an inference of guilt may legitimately be drawn from an accused’s silence in the face of a statement such as that of the complainer, and that an implied admission can arise only if the circumstances were such that the accused was reasonably called on to repudiate it.

“Having regard to the salient facts of the case, we consider that the sheriff’s directions, though brief, were adequate.

“The jury heard evidence from the complainer and the two prisoner officers. (The appellant did not give evidence.)

“The jury would be well aware that the complainer and the appellant were serving prisoners and that other prisoners were in the vicinity. Its members would exercise their collective common sense in deciding whether the appellant’s non-reaction to the accusation was incriminating.

“In any event, we note that there was no exploration in the evidence of any of the matters desiderated now on behalf of the appellant, nor in the Crown’s speech. If comments along the lines suggested were of particular importance, we would have expected to see them in the transcript of the defence speech, but there are none.

“In these circumstances we see no reason to criticise the sheriff for not addressing them. In our view it was neither necessary nor appropriate for the jury to be urged to exercise extreme caution, nor was there any overriding need for the other suggested directions.”

Counsel for the appellant also sought to pray in aid the evidence that the prison officer told the appellant to stay where he was, which was said to be a possible explanation for his silence, but the judges said there was no merit in it.

Lord Malcolm added: “Even without it there was ample corroboration of the complainer’s testimony from the evidence of the two prison officers who found the appellant close to the scene of the incident very shortly after it, when, according to the evidence, he had no particular reason to be there. There has been no miscarriage of justice and this appeal falls to be refused.”