APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HON. LORD KIRKWOOD
PROCURATOR FISCAL, LINLITHGOW
Appellant: Shead; Central Criminal Lawyers
Respondent: Doherty, Q.C., A.D.
14 May 1999
The appellant in this appeal by stated case is Scott Hendrie who in March 1998 at Linlithgow District Court was convicted of assault. The charge on which he was convicted narrated that on 18 January 1997 in the house at 57 St Paul's Drive, Armadale, he assaulted Lynda McDonald, seized her by the hair and punched her on the head and body, all to her injury. We are informed by the justice that the Crown led evidence from two witnesses, namely, Lynda McDonald and David Webb. After speaking to the surrounding circumstances as set forth in the stated case, Lynda McDonald gave evidence that on 18 January she called at 57 St Paul's Drive to collect her Cashline card. When the occupier answered the door she walked into the hall. As she walked up the hall the appellant grabbed her hair and, holding her by the hair, punched her on the head and body and kicked her legs. She stated that he was shouting abuse and that he punched her all over her face, the side of her face and her body and legs whilst he had hold of her hair. She estimated that she had been punched about five times in all and kicked six or seven times. It was a straight hall and David Webb could have seen everything that happened. When David Webb gave evidence he stated that the appellant had leapt from the couch on which he had been lying, grabbed the complainer by the hair and struck her on the head. He was unsure whether the appellant had struck her with an open hand or a fist because the hallway was dark, although he thought it was a punch rather than a slap. He then turned round and shouted to another person who was sitting in a van outside.
At the close of the Crown case the appellant's solicitor made a submission in terms of section 160(1) of the Criminal Procedure (Scotland) Act 1995 that there was no case to answer. The submission was to the effect that the evidence of the two Crown witnesses had been so dissimilar that there was no conjunction of testimony and therefore no corroboration of the complainer's evidence. The justice rejected the submission of no case to answer and the defence led the evidence of the occupier of the house, Mr Gilchrist. In the event the justice found the evidence of Lynda McDonald and David Webb to be both credible and reliable. Mr Webb had not seen all that took place because he had looked away. Mr Gilchrist was found to be evasive and incredible. The justice convicted the appellant of assault under deletion of the words "and kick her on the legs" which had originally been part of the charge. He imposed a fine of £150.
Counsel for the appellant, under reference to the case of McDonald v Scott 1993 SCCR 78, submitted that the Crown evidence lacked the necessary conjunction of testimony to satisfy the essential test of sufficiency. The complainer had described a long and frenzied assault and verbal abuse and her evidence had to be compared with the evidence given by Mr Webb. Bearing in mind that this was a narrow hallway, it was odd that the corroborating witness did not see what was a prolonged assault and that he did not hear all the shouting which had gone on. In the circumstances, the evidence was consistent with the complainer and Mr Webb having described two quite different incidents. In reply, the advocate depute submitted that there was sufficient conjunction of testimony to entitle the justice to convict and he referred to the case of Hutton v Heywood, 16 March 1994, unreported. He submitted that it could not be said in this case that the two witnesses were describing two quite different assaults. He also founded on the fact that a red mark had been found on the face of the complainer.
We have taken into account all the discrepancies between the evidence of Lynda McDonald and David Webb founded on by counsel for the appellant. In our opinion, however, in the circumstances of this case there was not a fundamental divergence between the accounts given by these two witnesses. In particular, both witnesses spoke to the appellant taking the complainer by the hair and punching her on the head. The fact that Mr Webb had not spoken to further blows could readily be explained by the fact that he said that at one stage he had turned away. In our opinion the justice was entitled to find that the appellant had assaulted the complainer and to restrict as he did the finding of guilt to that part of the incident which involved punching. On the whole matter we shall answer questions 1, 2 and 3 in the affirmative and refuse the appeal.