Christopher Wilson v. Her Majesty’s Advocate [2019] HCJAC 36

Note of appeal against conviction:- On 27 April 2018, at Edinburgh Sheriff Court, the appellant was convicted after trial of a charge of assault relating to his ex-partner over a 3 week period in 2017 at various loci whilst on bail and aggravated in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The appellant was acquitted of a breach of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 between the same dates and at the same loci, damaging various household items, after the sheriff sustained a ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. The appellant was also convicted of breaching his bail condition not to approach the complainer on the dates and places libelled in the assault charge and he was sentenced to 6 months imprisonment in relation to that charge. In relation to the assault charge, on 16 May 2018, the sheriff imposed a Community Payback Order with 150 hours unpaid work, a supervision requirement for 24 months, a Restriction of Liberty Order for a period of 6 months and a Non-Harassment Order of 3 years on the appellant. The appellant appealed against his conviction raising the question of what is required to corroborate a complainer’s evidence in an assault charge when the Crown has libelled a number of assaults within one single charge under reference to Spinks v Harrower 2018 JC 177. There were four separate incidents spoken to by the complainer. There was CCTV evidence which was available as corroboration in relation to one of those incidents (on 18 November 2017). Various grounds of appeal were lodged, however, it was not clear from the sift judge’s decision which of those passed the sift and there was some confusion in relation to what grounds passed the sift. At the appeal hearing it was submitted that the CCTV images could not corroborate the appellant’s involvement in separate assaults over the period from 1 to 24 November with the exception of outside the chip shop on 18 November. It was submitted that in Spinks the court had distinguished between a situation in which what had been libelled was a course of indecent conduct towards children and where there were separate instances of assault on an adult and was confirmed in HMA v Taylor 2019 SCCR 96 which had been about the application of mutual corroboration which was not the position in Spinks. On behalf of the Crown it was submitted that the complainer had been unable to escape from the appellant’s control during the period of the libel and the abuse only ended on 24 November, when she had managed to escape. It was submitted that in relation to the incident on 18 November, the assault had not stopped inside the house, but had continued into the street and corroboration was available from the CCTV images. It was further submitted on behalf of the Crown that there were other adminicles of evidence which supported the complainer’s account of being abused over the 3 week period, for example:- (1) her mother had not heard from her daughter for a period of weeks and found her daughter extremely distressed and dishevelled; (2) her mother described the complainer’s house as looking as it did in the photographs; (3) her mother spoke to the appellant shouting, swearing and refusing to give the child back; (4) a doctor gave evidence concerning the complainer’s injuries; (5) there was police evidence that the child’s jacket, which had been found in the complainer’s flat had staining consistent with blood supporting the complainer’s account that on 5 November the appellant had repeatedly kicked her on the face. It was submitted on behalf of the Crown that the four incidents of violent domestic abuse were similar in terms of time, place and character, so that they could properly be said to form part of a single course of conduct and a sufficiency of evidence could be provided by applying the principle of mutual corroboration. Here the court reaffirmed what was said in Spinks v Harrower 2018 JC 177 that corroboration is required to prove separate crimes including different episodes of assault. The court stated that the way to corroborate the separate episodes can be through the conventional mode of corroboration or by mutual corroboration but there must be corroboration of separate episodes of assault. It is not correct to categorise separate episodes of assault as a separate crime known as a course of conduct in which only one incident requires to be corroborated as if it were an element in a single episode of assault. The court referred to Howden v HMA 1994 SCCR 19 and the proposition that if one incident involving one complainer is proved by corroborated evidence to have been committed by an accused, then other incidents, proven to have happened by corroborated evidence, will also be proved to have been perpetrated by the same accused if the evidence supports an inference that they were committed by the same person. The court considered in the present case that there was a sufficiency of evidence for the assault charge. Whilst the assault charge was not libelled as a charge alleging continuous criminal activity by the complainer being held captive and being subjected to various assaults during that period, the evidence was led without objection by the defence. In those circumstances, the complainer’s evidence of the four incidents could have been corroborated by the CCTV relating to 18 November. Another method of corroborating the complainer’s account would have been through the application of the Howden principle. For these reasons the court considered that the trial sheriff was correct to repel the section 97 submission. The court stated that where there are separate assaults libelled on different occasions in a single charge an accused is entitled to make a section 97 submission in relation to each one and such a submission cannot be circumvented by libelling an omnibus charge. The court went on to consider, however, that the trial sheriff did not give the jury directions on how they could find corroboration of the complainer’s account in either of the two ways described by the court here. The sheriff had given the jury directions that they could find corroboration of the whole libel of the assault if they accepted that the CCTV images showed the appellant assaulting the complainer outside the chip shop which amounted to a material misdirection and that a miscarriage of justice had occurred. To that extent the appeal was allowed and the assault charge was restricted to the conduct of 18 November as it did in relation to the breach of bail charge.