APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD SUTHERLAND
MURDO EWAN MacLEOD
PROCURATOR FISCAL, AIRDRIE
Appellant, Duguid, Macbeth Currie
Respondent, Cathcart, A.D.
11 May 1999
This is the appeal of Murdo Ewan MacLeod who was convicted of a charge of indecent assault. The circumstances were that the appellant, the complainer and another man Stevenson occupied three bedrooms in a house on the same floor. The evidence of the indecent assault came directly from the complainer. He was awakened just after midnight feeling someone touching his private parts, up the leg of the shorts which he was wearing. He asked who it was and received the reply that it was the appellant. The complainer was angered by this and punched the appellant in the bed. The appellant fell out of the bed and then there was a further attack on the appellant in the complainer's bedroom. The complainer then chased the appellant from his room and was shouting at him. The complainer spoke to the appellant being naked and to the witness Stevenson eventually intervening. This evidence was entirely accepted by the sheriff and the question really is whether there was corroboration of it. The witness Stevenson spoke to being awakened by a noise coming from the adjacent bedroom occupied by the complainer. He heard screaming and thumps. When he emerged from his bedroom he saw the complainer chasing the appellant back into the appellant's own room. The appellant was naked. The witness's evidence was that the complainer was hysterical and screaming the words "fat poof" and that the complainer then assaulted the appellant. Again the sheriff had no difficulty in accepting this evidence.
A submission was made at the conclusion of the Crown case that there was no case to answer. The basis of this was that under reference to Smith v Lees there was insufficient corroboration of the facts of what occurred in the complainer's room. Mr Duguid on the appellant's behalf today has repeated that submission. He pointed to the fact that the sheriff has found four matters as being relevant in support of the complainer's evidence. In the first place there was Stevenson's evidence of being wakened as a result of screaming and thumps coming from the bedroom, and Mr Duguid accepted that the thump at least could be the sound of the appellant being pushed out of the bed by the complainer which would support that part of the complainer's evidence. Then there is the fact that the appellant was naked and had entered the complainer's room for no apparently discernible purpose. Thirdly, there was the hysteria of the complainer and obvious distress and anger at whatever it was that had happened to him, and fourthly there was the complainer's shouting "fat poof" at the appellant. Mr Duguid said that that did not in fact add very much to the evidence of distress because the source of the observation was the complainer himself so this can only enhance his credibility.
In our view looking at the matter as a whole there is quite sufficient to entitle the sheriff to have come to the conclusion which he did. The test, as Mr Duguid accepted, is whether the evidence coming from a source other than the complainer tends to support or confirm the complainer's evidence. In our view, having regard to the matters spoken to by Stevenson, the clear inference from this evidence was that the appellant, having stripped himself naked, entered the complainer's room when the complainer was asleep, and that he was then assaulted in the complainer's room, pushed out of the bed and chased by the complainer shouting "fat poof". The quality of the evidence was in our view quite sufficient to entitle the sheriff to come to the conclusion that the complainer's complaint of the appellant entering his room and touching his private parts was in fact supported or confirmed. On the whole matter, therefore, we are quite satisfied that there was sufficient evidence in this case and we shall answer the question in the affirmative.