Robert Spinks v. Procurator Fiscal, Kirkcaldy [2018] HCJAC 37

Note of appeal:- On 17 August 2017, at Kirkcaldy Sheriff Court, the appellant was found guilty of a ‘stalking’ charge in relation to MK between 27 March and 10 April 2017 contrary to section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010 and a charge of assaulting MK to her injury on various occasions between 1 January 2013 and 27 March 2017 in that the appellant did “...punch her on the head, repeatedly seize her by the throat and compress the same, repeatedly pin her to the ground and against a wall, throw water at her, strike her on the head causing her to strike her head against a wall, repeatedly seize her by the hair, kick her on the body, and spit on her face, all to her injury.” The sheriff imposed a Community Payback Order involving a supervision requirement of two years, a programme requirement for two years and unpaid work of 300 hours. The appellant appealed against his conviction and sentence. At trial the complainer gave evidence about various incidents during the period of the libel. Of those various incidents only two were independently corroborated, one by a neighbour MS who spoke to the appellant spitting on the complainer, and an admission by the appellant that he had punched the complainer on one occasion two or three years before being interviewed by the police. In his report to the court the trial sheriff referred to Stephen v HMA 2007 JC 61 which was authority for the proposition that not all details of an assault required to be corroborated. The sheriff treated the conduct as a series of assaults forming a course of conduct and all of the different elements did not require corroboration. The Sheriff Appeal Court refused the appeal and followed Stephen v HMA. The appellant appealed to the High Court on the basis that the Sheriff Appeal Court and the sheriff erred in stating that where a course of conduct had been established in a single charge, the individual elements of that charge did not require corroboration. It was submitted on behalf of the appellant that corroboration was required for what were in essence separate offences over a period of seven years. It was submitted that the court should follow the case of Dalton v HMA 2015 SCCR 125 and not Stephen v HMA. It was submitted on behalf of the Crown that where offences were committed over a period of time, on separate occasions, and the offences were so linked in time, character and circumstances to demonstrate that they were parts of a single course of conduct, all that was required was corroboration of some of the episodes to amount to corroboration of the whole course of conduct. It was submitted by the Crown that the case of Stephens should be followed. Here the court allowed the appeal. The court made clear that where there are different incidents libelled corroboration is required for each separate incident. Simply because the Crown case proceeded on a single charge incorporating a number of separate incidents on different occasions does not affect the law of evidence. The court allowed the appeal and restricted the conviction to an occasion in 2015 when the appellant punched the complainer on the head and on another occasion on 27 March 2017 when he spat on her face. As a consequence of that the sentence was quashed and the 300 hours was substituted with 100 hours unpaid work and the programme and supervision requirements were quashed.