Gordon Campbell v. Her Majesty’s Advocate [2020] HCJAC 47

Note of appeal against conviction:- On 21 November 2019, following a trial on indictment at Hamilton Sheriff Court, the appellant was found guilty of a charge of assaulting his partner on 26 December 2018 by striking her on the head with a glass bottle to her severe injury and permanent disfigurement which charge was aggravated in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. On 20 December 2019, following the obtaining of a Criminal Justice Social Work Report, the sheriff imposed a sentence of 30 months imprisonment and a non-harassment order of 5 years. The appellant appealed against his conviction on the grounds of criticism of the trial sheriff’s directions to the jury on the appellant’s failure to respond to an accusation of assault made by the complainer de recenti and observed by a neighbour. During the course of the trial evidence was led from a neighbour on the upper floor hearing someone saying “help me” at about 3.00am. The neighbour looked through her door’s spy hole and saw a woman slumped and covered in blood. The neighbour heard the complainer say to the appellant:- “You’ve really hurt me this time” to which the appellant did not respond. It was submitted on behalf of the appellant that the sheriff should have directed the jury that they had to determine:- (1) if what was heard by the appellant reasonably required comment; (2) if what was said was incriminating; and (3) if there was a reaction or lack of reaction by the appellant. It was submitted that the sheriff ought to have directed the jury that the lack of reaction was not evidence against the appellant if they determined that the circumstances were such that there was no requirement for the appellant to contradict the complainer’s statement and that it would only be in circumstances where the jury considered that the appellant required to repudiate the comments which had been made that the jury could use the lack of reaction as an admission. On behalf of the Crown it was submitted that where a person makes a statement within the hearing of a party who was accused, and that person did not say anything, the evidence of the statement was competent against the accused, all that was required was that the statement was made in the hearing of the accused, was incriminatory and the accused was in a position to contradict it before silence or lack of reaction could be taken to be an admission. It was submitted that it was a matter for the jury to decide whether they were satisfied that such an inference could be drawn and there was no requirement for an accused person to know that the statement was likely to be overheard by others before responding to it. Here the court refused the appeal. The court stated that there is no requirement that the accused had to be aware that his lack of reaction might be observed by others. The court reiterated that an accused person’s reaction to an incriminating statement, or his failure to react to it, is evidence against him in the same way as a statement made by him is, silence in the face of accusation being capable of being construed as an admission of guilt in those circumstances. The court stated that on the evidence of the neighbour the absence of a denial by the appellant to the incriminating statement by the complainer was available to the jury, if they accepted the neighbour’s evidence, as an implied admission of guilt by the appellant.