Sean Wilson v. Her Majesty’s Advocate [2017] HCJAC 52

Note of appeal against conviction:- The appellant was convicted after trial on indictment of a charge of assault to severe injury by the appellant throwing a kettle of boiling water over a fellow prisoner within a prison kitchen. At the trial the complainer identified the appellant as being the person responsible. Whilst there were other prisoners in the kitchen area, none saw the incident. A few seconds after the incident prison officers who arrived on the scene observed the complainer pointing at the appellant and shouting that he had described boiling water on him. The appellant did not react in any way to the accusation that was shouted at him by the complainer. The appellant appealed on the basis that there was insufficient evidence to convict him and that the appellant’s lack of reaction was inadmissible. At the appeal hearing it was accepted, notwithstanding the terms of the ground of appeal, that the absence of a reaction by the appellant to the accusation being made against him, was admissible. It was submitted, however, that the trial sheriff’s directions to the jury in relation to the issue were inadequate. The trial sheriff directed the jury in the following terms:- “...However, ladies and gentleman, I should say that the accused’s failure to react to the statement, his silence in the face of the accusation being made against him, is capable of being construed as an admission of guilt and is therefore capable of supplying corroboration. It is for you to say whether or not you consider the accused’s silence as an admission of guilt...”. It was submitted on behalf of the appellant that, in light of the particular circumstances of the case, it was necessary for the sheriff to direct the jury that each case turns on its own facts and circumstances and, given the locus was a prison, there may have been other explanations for the absence of any reaction, for example, the perception of other prisoners present who might think the appellant was a “grass” should the person responsible be pointed out by him. It was submitted that the jury ought to have been directed to proceed with caution in using any perceived lack of reaction by the appellant as an admission of guilt. Here the court refused the appeal. The court observed that, whilst the directions could be described as brief, they were adequate and made clear that it is well established that an inference of guilt may be drawn from an accused’s lack of reaction against a statement from a complainer and that any implied admission only arises where the accused could reasonably be called on to repudiate it. It was noted by the court that the appellant’s solicitor did not draw the jury’s attention to the issue now raised and the sheriff could not be criticised for failing to deal with it in light of that absence of any such reference by the defence. It was further observed by the court that the Crown did not seek to rely, to any great extent, on this aspect of the evidence in that there was amply other evidence, in particular, from the two prison officers who found the appellant in the vicinity of the incident shortly after it, without the need for the purported ‘admission’.