James Wallace and Louise McGhee v. Her Majesty’s Advocate [2017] HCJAC 40

Notes of appeal against conviction:- On 19 August 2016, at Ayr Sheriff Court, the appellants were convicted after trial on indictment of:- (Charge 1) a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010; (charge 2) a charge of assault of GC to his injury; and (charge 4) a charge of assault of KS to her injury. The first appellant was sentenced to 12 months imprisonment on charge 1 and 34 months on charges 2 and 4 (reduced from 42 months to reflect the period of remand) to be served concurrently. The second appellant was sentenced to 12 months on charge 1 and 42 months on charges 2 and 4 concurrently. The appellants appealed against their convictions on two grounds:- (1) that the sheriff erred in relation to his directions on the requirement for corroboration; and (2) that the sheriff ought to have given the jury specific directions in relation to the use of a prior statement. During the course of the trial both GC and KS identified both appellants in relation to their involvement in charges 1 and 2, however, only KS gave evidence about the assault on her and the Crown sought to rely upon the doctrine of mutual corroboration to prove charge 4. The complainer GC gave evidence that the appellants had struck him on the head with something, perhaps “a golf handle, a golf club handle, or a golf club...I don’t quite know what it was”. In cross-examination his police statement was put to him in which it was stated that he had been struck by an “iron bar”. GC accepted the truthfulness/accuracy of the statement with the exception of the reference to the iron bar which he stated was not accurate. Both appellants’ solicitors referred to the discrepancy in their jury speeches and submitted that it undermined GC’s credibility. It was submitted on behalf of the appellants that the sheriff’s directions on corroboration were inadequate in that a full direction on the requirement of corroboration was required and that in a Moorov case the witnesses required to corroborate both the identity of the perpetrator and the commission of the crime. It was further submitted that in relation to GC’s prior statement a direction on the use to which the jury could make of the prior statement ought to have been specifically given as in referring to it in the defence speeches the appellant’s had relied on the reference to the prior statements as a specific tool to undermine the complainer’s credibility. On behalf of the Crown it was submitted that discreet parts of the charge should not be viewed in isolation and the charge should be read as a whole. In relation to the absence of a specific direction in relation to prior inconsistent statements it was submitted it was unnecessary in the particular circumstances of the case. It was further submitted that the trial had been short, only two days in duration, and it was not the function of the sheriff to refer to discrepancies in the evidence. In relation to the verdicts it was clear the complainers had both been accepted as credible and reliable and had rejected the first appellant’s special defence of alibi. Here the court refused the appeals. The court stated that, whilst it would have been preferable for the Jury Manual’s recommendations to have been more closely followed in relation to corroboration and mutual corroboration, the directions given were adequate and it was clear both complainers’ accounts had been accepted and the first appellant’s account rejected. In relation to the absence of a specific direction in relation to the prior statement the court reiterated that questions of the credibility and reliability of witnesses testimony is primarily the function of parties to refer to in their respective speeches and sheriffs and judges should take care not to trespass into that area.