Kyle Beveridge v. His Majesty’s Advocate [2025] HCJAC 23

Note of appeal against conviction and sentence:- Following a trial on indictment at the High Court the appellant was convicted of various charges of domestic abuse and rape against three former partners between 2013 and 2021. Following the obtaining of a Criminal Justice Social Work Report the trial judge imposed an extended sentence of 16 years comprising of a custodial element of 12 years and an extension period of 4 years. The appellant appealed against his conviction on charges 1 and 5 and challenged the decision of the trial judge to admit hearsay evidence of witness DD under section 259 of the Criminal Procedure (Scotland) Act 1995 in response to a late notice given by the Crown during the trial. The appellant also appealed against his sentence. The circumstances were that Charges 1 and 5 involved complainer AA, charges 6, 7 and 8 involved complainer BB and charges 9 and 10 involved complainer CC. Each complainer spoke of her experience at the hands of the appellant at the material times. Charge 1 involved repeated occurrences between June 2013 and June 2017 of threatening or abusive behaviour including uttering abusive, derogatory and controlling remarks, sending abusive messages, coercing AA with threats to send him intimate sexual images which he also threatened to send to others, and engage in sexual activity contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010). Charge 5 involved a single occasion when the appellant raped AA whilst she was sleeping and after she awoke. The Crown case depended on mutual corroboration between the three complainers, however, on charge 1, the Crown relied on a second route to verdict, namely acceptance of the complainer’s account of the appellant’s criminal conduct and corroboration from a police officer speaking to hearsay evidence of DD, AA’s grandmother, about occasions when DD observed AA’s distress and heard her make remarks de recenti about incidents within the scope of charge 1. The trial judge also reported that in relation to charge 5 the grandmother’s hearsay could assist the jury in their assessment of the credibility and reliability of AA’s evidence, however, that was not borne out in the transcript of the judge’s charge, there being no mention of an alternative route to conviction. The trial judge had allowed the admission of the hearsay evidence at trial without consideration of the requirement for there to be “good reason” for the failure by the Crown not to give notice in advance of trial (section 259 (6)(b)). It was contended on behalf of the appellant that the judge erred in admitting the hearsay evidence on the basis of the limited information which was available to the judge at that time. On behalf of the Crown it was conceded that the judge had erred in allowing the late admission of the evidence, however, submitted that the conviction should stand as there had been no miscarriage of justice. Here the court refused the appeal against conviction. The court noted that the hearsay evidence led was only available as corroboration in respect of charge 1 and that the only source of corroboration identified for the jury on charge 5 was that of mutual corroboration. The court considered that the jury must have accepted the evidence of AA on charge 5. Further, it was made clear to the jury that the only route to verdict on charge 7 was by mutual corroboration from charge 1 so the verdict of ‘guilty’ on charge 7 necessarily demonstrated that the jury found mutual corroboration between charges 7 and 1. As such the court was satisfied that the erroneous admission of the hearsay evidence did not result in a miscarriage of justice in respect of either charges 1 or 5. In relation to the appeal against sentence it was submitted on behalf of the appellant that having regard to what was said by the court in HMA v Fergusson 2024 JC 376 the sentence imposed was excessive. Further, it was submitted that the appellant had been aged 17-24 years at the time of the commission of the offences together with his previously good character which was supported by various references. It was submitted that the sentence imposed may have been justified in respect of an adult over the age of 25, however, in relation to the present case the sentence imposed was excessive. The court refused the appeal against sentence. The court stated that imposing an appropriate sentence on each charge and ordering each to run consecutively may well have resulted in an unfair, disproportionate and excessive total and in applying the test as set out in Fergusson the sentencing process followed by the sentencing judge ensured a higher degree of transparency. Here the court noted that the sentencing judge had selected individual sentences with the total of the individual sentences being a custodial term of 25 years and 6 months which was reduced to 12 years and the court considered that, in making that significant reduction, the sentencing judge achieved what the court in Fergusson had intended. Having considered the nature and circumstances of the offending the court did not consider that an extended sentence of 16 years comprising of a custodial element of 12 years was excessive.