"On 20 December 2003 at Penicuik Public Park, Carlops Road, Penicuik, Midlothian you ... did assault Richard Taylor ... and did repeatedly punch him on the head and repeatedly strike him with a brick or other similar instrument on the head all to his severe injury and the danger of his life."

The appellant pled not guilty and went to trial before a sheriff and jury at Edinburgh Sheriff Court. He adhered to a special defence which, so far as material, stated that "he was acting in self-defence, in that the complainer had attacked him with a brick." At the close of the Crown case the charge was amended by deletion of the words "and repeatedly strike him with a brick or other similar instrument on the head". There was no submission that there was no case to answer. In due course the jury, by a majority verdict, found the appellant guilty of the charge as amended.

"Evidence for the Crown was from three witnesses. A joint minute dealt with the medical evidence about the complainer's injuries. The complainer gave evidence that he had been injured after he left the Railway Tavern in Penicuik and was walking home in Penicuik Public Park. He had no recollection of how he came to be injured. His injuries were a complex fractured skull with mild swelling to the brain, a comminuted complex fracture of his lower jaw and pain to his tendons and his ankle and calf. The head injuries were potentially life threatening. He had been in the Tavern since the back of 6.00 pm till closing time and had drunk probably seven bottles of beer over that period.

Nicola Fox was out with friends, but not with the complainer, and had also been in the Railway Tavern. On her way to the park she met the complainer and another man, Thomas Murray. They got split up and she and Thomas Murray were walking through the park without the complainer. There were a lot of people about. She saw someone lying on the ground. She saw two people walking away from the person lying on the ground. They were not running, but sort of jogging. She thought that one was the appellant and the other was a man called Mark McHugh. They had also been in the Railway Tavern. She was not 100% sure of the identification of the appellant. There was no-one else in front of her. She was not aware of any argument outside the Tavern or in the park and had not heard anything. She did not know how the complainer came to be on the ground. She said she was drunk. She did not hear anybody say 'put the brick down'.

Detective Constable Bowster gave evidence about the interview with the appellant. The appellant said that there was an argument going on in front of him in the park. He kind of got caught up in all the shouting. There was a big guy who had a brick. He shouted at him to put it down. The man tried to hit the appellant with the brick and after that the appellant just hit him; and as soon as the man fell, the appellant turned round and walked away. It was a straight out jab with all his force. His intentions were to 'stand him off'. He had to stand his ground so that he would not get attacked. The person with the brick blocked his path. ...

The appellant gave evidence. He said he had had a fair bit to drink. He said he was aware of an argument in Lamb's Pend near the Tavern. He went that way to the park to go home. He did not see Nicola Fox although he knew of her. The argument was still going on in front of him. As he walked on the argument was escalating. There was a lot of aggression. He went to see what it was about, to see if any of his friends were involved. He did not intend to become involved himself but he became involved. The focus of the argument turned on him as if he were an intruder. He was shouted at by the complainer. He became aware of the complainer swinging a brick at him. The brick caught him on the hand. After a couple of swings by the complainer, the appellant punched the complainer because, he said, it was only a matter of time that one of the complainer's swings was going to contact with him. He thought that turning his back on the complainer was not the best option because the complainer was intent on hitting him with the brick. He thought he hit him once. He agreed that he had accepted in his police interview that he might have hit him more than once. But if he did it was in the scramble of the situation. The complainer fell backwards on his back and the appellant did not know if he banged his head. He thought that the only thing he could do was to hit the complainer.

In cross-examination he said he was very drunk by the time he got to the Railway Tavern. He got involved in an argument in the park because it turned on him when he went to see what was going on, to see if friends were involved. No-one he knew was in fact involved. He was very drunk. He agreed that he could have walked away, but he could not back down. There were hedges either side of the path, he said; but he agreed that you could drive a car along the path. He hit the complainer as hard as he possibly

could.

Paul Cook, who knew the appellant, had been out with friends that night and had seen the appellant in the Railway Tavern. He left the pub with friends other than the appellant. He could not remember an argument outside the pub as he left. He walked through the park. He saw the appellant in the distance shouting 'put the brick down'. The appellant was shouting at the complainer. He had seen the complainer walking up Lamb's Pend very drunk with one of his mates. He saw that the complainer had something in his hand in the park and saw him swing the brick, and saw the appellant hit the complainer once. He did not hear any other shouting leading up to the appellant shouting 'put the brick down'. In cross-examination he said that there was no-one else there. Nicola Fox was behind him. There was nobody else where the appellant was. The path was tarmacadamed and wide enough for a car. On one side there was a football pitch, on the other side there was grass. There was nothing to stop one going off the path."

"I can tell you that there is sufficient evidence in law to hold the involvement of the accused proved and the commission of the crime libelled in the indictment as proved but whether you do so is for you to decide on the facts. Give consideration to all the evidence ... ".

From this and other passages it will have been abundantly clear to the jury that their duty was to return a true verdict according to the evidence. It is true that the sheriff did not expressly direct the jury that a statement in a question was not in itself evidence, but there was no need for this to be done in respect of the question to which the ground of appeal relates. It must have been obvious to the jury that the procurator fiscal depute was putting the Crown case to the appellant, and since he denied assaulting the complainer the Crown had to rely on other evidence to prove that he did. It is alleged in the ground of appeal that there was no evidence at all of an unprovoked attack. In his submissions to us, the solicitor advocate for the appellant submitted that there were two alternative versions, self-defence or unprovoked attack, and there was no evidence for the latter. But there was no submission of no case to answer; the sheriff directed the jury that there was sufficient evidence in law to entitle them to convict the appellant; and no ground of appeal is directed to the sufficiency of the evidence. In these circumstances we are at a loss to see how this assertion could be justified. We proceed on the basis that there was sufficient evidence to entitle the jury to hold it proved that the appellant did indeed assault, that is to say attack, the complainer.

"[T]he sole function of a special defence is simply to give notice to the Crown of a line of defence that may be taken. There is no obligation on the accused to lead evidence in support of it, it has no effect on the burden of proof on the Crown to prove the guilt of the accused. Any evidence relating to it simply falls to be considered along with all the other evidence in the case. If it is believed or if it raises a reasonable doubt an acquittal must result. The accused person does not have to prove it. Now, in this case the accused said that he was acting in self-defence. What does that mean? What does it mean in law to raise this defence of self-defence? In our law, if a person is attacked or is in reasonable fear of attack he is entitled to use such force as is needed to fend off that attack. So an accused person would not be guilty of an assault if he acted in self-defence. He would fall to be acquitted. Now, three conditions have to be satisfied: firstly, the accused must have been attacked or must reasonably have believed himself to be in imminent danger of attack and then acted in that belief. The danger must be immediate; the belief must be on reasonable grounds even though that may be mistaken. Secondly, the accused can only use violence as a last resort. If there were other ways of avoiding the attack he should have taken them. If he could have disarmed his attacker or run away he should have done so. Thirdly, the accused must have used no more than a reasonable amount of force. The aim of self-defence is only to stop the attack. He doesn't have a licence to use force which is grossly in excess of what is needed for his defence. If he went beyond what you thought was reasonable force then he would be guilty of assault. Equally, if someone acted in revenge, retaliation or anger, that is assault and not self-defence. Now, in applying those three tests you have to allow for fear and the heat of the moment. Don't judge the accused's actions too finely, take a broad and reasonable approach in considering the type and degree of violence he faced and the type and scale of force in his response if you consider that he was attacked. If you think each of these conditions is met you could hold the accused acted in self-defence. Now, consider carefully the evidence in relation to this and what Mr Kirk (the procurator fiscal depute) for the Prosecution and Mr Collins (the solicitor advocate) for the Defence said about it. Was it the case that the accused was facing an attack by a brick being swung at him and if that were the case then consider whether what he did was in self-defence."

The sheriff also said:

"If you believe the accused's evidence or evidence supporting the defence of self-defence or you believe any evidence which clears the accused from blame, you should acquit. Even if you don't but are left with a reasonable doubt about the Prosecution case you should acquit but if you are satisfied beyond reasonable doubt that the accused is guilty then it would be your duty to convict him."

"In order to return the verdict of guilty the jury must have held that the actions of the appellant were not in self-defence. The jury could only have reached that conclusion by either accepting that the appellant's actions amounted to an unprovoked attack, or that there was another course of action open to the [appellant] and that violence was not therefore justified, or that his actings were excessive so as to remove the defence of self-defence. There was no support in evidence for any of the above findings."

In the event, the solicitor advocate for the appellant advanced only a brief and tentative submission in support of this ground of appeal. What we have said about the second ground of appeal is sufficient to dispose of this ground also.