Alexander Burke (Snr) v. Her Majesty’s Advocate [2020] HCJAC 34

Note of appeal against conviction:- The appellant went to trial at Hamilton Sheriff Court on an indictment containing 5 charges. The relevant charges for the purpose of this appeal were charges 2 and 4 which related to a charge of assault to severe injury and permanent disfigurement (charge 2) and a charge of assault (charge 4) both alleged to have been committed on 26 May 2019 whilst acting along with Alexander Burke (Jnr) and others meantime to the prosecutor unknown. The appellant was convicted of charge 4, however, the jury acquitted the appellant of charges 2 and 5. The sheriff sentenced the appellant to 24 months imprisonment, 3 months being attributable to the bail aggravation. The appellant appealed against his conviction on the basis that the jury had been directed that they were entitled to consider the application of the doctrine of mutual corroboration between charges 2 and 4 on the indictment and in light of the jury’s verdict of acquittal in relation to charge 2 there was insufficient evidence to corroborate the evidence of the single complainer in relation to charge 4. It was submitted that the procurator fiscal depute had gone to the jury relying on the doctrine of mutual corroboration in seeking to prove charges 2 and 4. The court noted, however, that the trial sheriff had not only given the jury directions in relation to the applicability of the doctrine of mutual corroboration but had also referred to other routes to conviction, in particular, the availability of certain circumstantial evidence. The court noted here that the appeal was founded on the basis of there being insufficient evidence due to the non-availability of the doctrine of mutual corroboration. The court further noted that no criticisms were made of the sheriff’s directions to the jury. As such the court here considered the issue of the sufficiency of evidence having regard to the evidence led at trial. The court noted there was the evidence of the complainer, Ms Townsley, which the court described as “clear and compelling”. To corroborate her evidence the court pointed to the evidence of a James Wilson who described the appellant’s aggressive demeanour and to him leaving the car park in his white tipper truck immediately before the vehicle containing Ms Townsley and her sister also left the car park, and the sounds of a vehicle being “rammed” and the noise of plastic or metal being struck and a revving of engines all of which was consistent with Ms Townsley’s evidence. The CCTV evidence was also consistent with Ms Townsley’s evidence to the effect that as she was driving from the car park to the Raith Interchange there was a white tipper truck in front of her and another immediately behind her. In addition, there was evidence of photographs showing damage to the vehicle in which Ms Townsley was situated which was also consistent with her evidence. Here the court refused the appeal against conviction. The court considered that there was sufficient evidence without the need for the application of mutual corroboration. In his report to the court the trial sheriff indicated that he would have directed the jury to acquit of charge 4 once they had returned their not proven verdict in relation to charge 2, however, on the evidence led he considered there was a basis for the jury returning the verdict they did and the court here agreed with that view.