W.M. v. Her Majesty’s Advocate [2022] HCJAC 28

Note of appeal against conviction:- The appellant was convicted after trial at the High Court of two charges:- (1) repeated assaults on his son, A, aged 6 over a period of 5 months by repeatedly striking him on the head with his hand and repeatedly pulling him by the hair; and (2) repeated assaults of another boy, B, during the first four months of his life by failing to provide and seek appropriate, timely and adequate medical aid for the child, all to his severe injury and the danger of his life. The appellant appealed against his conviction in relation to charge 1 on the basis there was insufficient evidence on charge 1 standing alone. Leave to appeal had been refused in relation to a ground in which it was contended that the trial judge was wrong to direct the jury that they could convict on the basis of mutual corroboration. The primary evidence in relation to charge 1 came in the form of a Joint Investigative Interview of the complainer who spoke to the allegations. In cross-examination at a commission hearing the complainer retracted his evidence by stating that the allegations made in the JII were untrue. Corroboration was in the form of comments made by the appellant in the course of prison calls made between the appellant and JG, the mother of both children, during his remand, which calls included admissions in relation to B and some parts of the calls were relied on in relation to child A. JG said “Baby it`s awright”; the appellant the said “They geen me the guilty heed baby. Ah`m sorry baby”; JG then said  “Well stop hittin them”; the appellant then said “Yer ten times better than that baby. You`re a million times better than one, you`re ma darling you ur. Man you`re no even that an aw you`re ma big smoking hot darling”. It was submitted on behalf of the appellant that the comments made by the appellant during part of his conversation with JG could not properly be regarded as an unequivocal admission in relation to the conduct libelled in charge one as the comments were too generalised and neither could they be construed as an implied admission. It was submitted that the comment “stop hitting them” came from JG and not the appellant and he did not acknowledge or admit anything and, as such, there was no standalone sufficiency in relation to charge 1 and, as such, the trial judge misdirected the jury. Further, even if the Crown were correct, the trial judge failed to direct the jury in how to assess that particular piece of evidence, namely, the absence of a response by the appellant to JG’s comment. Here the court refused the appeal. The court referred to what was said in CR v HMA [2022] HCJAC 25, at para 15:- “Whether, and to what extent, a comment or reply made by an accused person may properly be regarded as an admission is a fact specific question, the answer to which depends on the nature and content of the comment and the circumstances in which it is made. The contextual situation is important...”. The court reiterated that for a purported admission to be corroborative, evidence does not require to be more consistent with guilt than with innocence and that it is sufficient if it is capable of providing support for or confirmation of the principal source of evidence on an essential fact. It is not only clear and unequivocal admissions which have evidential value and that a distinction may be drawn between where such evidence is relied upon as the primary evidence as opposed to situations where such evidence is relied upon as corroboration of evidence which constitutes the primary evidence. The court stated that in the present case there was primary evidence and it was a matter for the jury what they accepted and rejected given the divergence in the contents of the JII and the commission evidence and the issue was whether the purported admissions sufficiently corroborated that primary evidence. Here the court considered that the evidence of the conversation as a whole was capable of providing support for the primary evidence from the complainer and that the trial judge gave the jury adequate directions in relation to the use they could make of the conversation as independent corroboration.