Sean Lees v. Her Majesty’s Advocate [2016] HCJAC 16

Note of appeal against conviction:- On 27 February 2015, at Airdrie Sheriff Court, the appellant was convicted of 4 charges of assault perpetrated against 2 complainers. In relation to complainer GD the appellant was convicted of assaults against her between 1998 and 2007 and the remaining charge related to an assault by the appellant against GMcA in 2012. The complainer GMcA was deceased at the time of the trial and her evidence was introduced by virtue of section 259 of the Criminal Procedure (Scotland) Act 1995, concerning (a) a 999 recording during the course of which GMcA made complaints; and (b) a signed statement noted by the police. The appellant appealed against his conviction:- (1) that the sheriff erred in her directions on mutual corroboration and hearsay and that the hearsay evidence could not, as a matter of law, provide a sufficiency for mutual corroboration to apply; and (2) that the sheriff misdirected the jury in respect of the evidence of res gestae on charges 6 and 7 because the sheriff had stated that the jury could use this evidence in “the case” and they might have used it in some way to prove the different charges on which the appellant was eventually convicted. On behalf of the Crown it was submitted that the evidence in relation to the deceased consisted not only of the hearsay of the 999 call and the written statement but also other evidence about the state of the complainer and the caravan given by the police officers. It was further submitted by the Crown in relation to the evidence on charges 6 and 7 was concerned it would be speculation to suggest that the jury would have used the evidence of res gestae in connection with these charges to prove unrelated charges. Here the court considered the directions given by the trial sheriff. The trial sheriff gave the jury standard directions on the application of mutual corroboration in relation to the evidence of GD and the hearsay evidence of GMcA. The sheriff gave specific directions on the care which had to be taken in relation to the hearsay evidence as it had not been given on oath in court, it had not been subject to cross-examination and the jury had not seen nor had an opportunity to assess her as a witness in court. Here the court considered that the directions were adequate and the sheriff had made clear the care with which the jury should approach hearsay evidence. The court stated that for mutual corroboration to apply there requires to be at least two sources of evidence, each relating to two or more separate incidents in a course of conduct and to the accused’s participation in it. There is no requirement that the two sources of evidence be direct testimony from eye-witnesses. In the present case it was sufficient for the Crown to rely upon the hearsay evidence which becomes the equivalent of the testimony of the speaker and can be used as proof of fact and hence corroboration. In relation to the issue of the res gestae the court considered that it was speculative to suppose that the jury would have used the evidence of the res gestae relative to different charges with a different locus to show that the appellant had committed unrelated offences.