John Dewar v. Her Majesty’s Advocate [2017] HCJAC 31

Note of appeal against conviction:- On 17 May 2016, at Falkirk Sheriff Court, the appellant was convicted after trial on indictment of a charge of assault by grabbing KM by her throat and pushing her against a wall to her injury whilst on bail. That verdict followed considerable deletions made to the original charge by the jury. The appellant appealed against his conviction on the ground that a miscarriage of justice had occurred by reason of the jury having returned a verdict which no reasonable jury, properly directed, could have returned as provided by section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995. During the course of the trial the complainer gave what was described by the sheriff as rather unsatisfactory evidence and she claimed that she could not remember very much regarding the alleged incident. The procurator fiscal depute made repeated attempts to have the complainer adopt the contents of her police statement. Generally the complainer acknowledged that the statement accurately recorded what she had said to the officers and that what she had told them the truth. However, in relation to the part of the statement that included the phrase “John grabbed me with his hands around my neck and then pushed me into the wall” the complainer did not accept having used the words noted or that she was telling the police the truth. The sheriff noted in his report to the court that the complainer did not adopt that passage of her statement. In addition, the Crown led evidence from a neighbour who gave evidence of the appellant trying to gain access to the complainer’s house and seeing the complainer opening the door and the appellant forcing his way in and raising his hand to her face and neck before closing the door behind him. The neighbour was unable to see anything further but he could hear screaming or yelping after the door was closed. The neighbour spoke to seeing the appellant leaving around 15 minutes later. Two police officers who had attended in response to the complainer’s report spoke to seeing her in a distressed condition and shaking and both spoke to seeing a red mark on the complainer’s neck. It was submitted on behalf of the appellant that the sheriff was correct to say tat the critical part of the complainer’s statement had not been adopted by her. The two essential components for adoption of a statement in terms of section 260 are, firstly, that the statement was made and, secondly, that what was said was true. In addition, it was submitted that whilst it could be said that other parts of the complainer’s statement had been adopted the reference to those parts had been deleted by the jury in their verdict. It was further submitted that in the absence of the complainer’s account there was no other direct evidence of the commission of an assault on the complainer and no reasonable jury, properly directed, could have returned the verdict in question. On behalf of the Crown it was submitted that the evidence given by the complainer was sufficient to entitle the jury to hold that she had adopted the relevant part of her statement and the verdict returned was open to the jury. Alternatively, it was submitted that there was sufficient circumstantial evidence led by the Crown to support the verdict. Here the court refused the appeal. The court proceeded on the sheriff’s view of the relevant part of the statement not having been adopted. The court went on to consider that in relation to such appeals under section 106(3)(b) the test outlined by the Lord Justice General in Williamson v HMA 2016 HCJAC 115 had not been met. The court stated that the complainer gave general evidence about being the victim of criminal conduct on the part of the appellant in addition to the attending police officers speaking to her distressed state and to an injury on her neck. The neighbour spoke to the appellant forcing his way into the property and to raising his hand towards the complainer’s neck. The neighbour also spoke to hearing noises that were consistent with an assault coming from the property which the appellant had just entered. The court considered that the evidence of distress together with the red mark spoken to by the police, corroborated the evidence of the neighbour and taking all of the evidence together an inference could be drawn that an assault had been perpetrated by the appellant by grabbing the complainer by the throat. In the circumstances the court considered that there was sufficient evidence for such an inference to be drawn and there was no basis for saying that the verdict was one which no reasonable jury could have returned.