APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General
Lord Osborne
Lord Johnston
|
[2007]
HCJAC 3
Appeal
No: XC917/03
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
NOTE OF APPEAL
AGAINST CONVICTION
by
ARTHUR KEARNEY
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Shead; Turnbull McCarron
Alt: Mackay, A.D.; Crown Agent
11 January 2007
[1] On 29 July
2003 at
the High Court in Edinburgh the appellant was convicted by
unanimous verdicts on charges 4, 5, 8 and 10 of the indictment.
[2] The charges
were all allegations of assault. The
charges, conviction on which is under appeal are charges 5, 8 and 10. The jury made certain deletions and the form
of the charges now before this court are as follows:
"(5) on
30 October 2002 at 37 Randolph Crescent, Bannockburn, Stirlingshire, you
did assault Karin Ross or Martin, c/o Central Scotland Police, Stirling and ...
punch her on the head, knock her to the ground ... all to her ... injury;
you did commit this offence while on
bail, having been granted bail on 14 March 2002 at Stirling Sheriff Court;
(8) on 5 November 2002 in the kitchen at 37 Randolph Crescent, Bannockburn, Stirlingshire, you did assault
Karin Ross or Martin, c/o Central Scotland Police, Stirling and repeatedly punch ... her on the
head and body, ... and press a screwdriver or similar instrument to her face, ...
all to her injury;
you did commit this offence while on
bail, having been granted bail on 14 March 2002 at Stirling Sheriff Court;
(10)
between 5 November 2002 and 7 November 2002, both dates inclusive, at 37
Randolph Crescent, Bannockburn, Stirlingshire, you did assault Karin Ross or
Martin, c/o Central Scotland Police, Stirling, further repeatedly punch and
kick her on the head and body, forcibly detain her against her will, brandish a
... bread knife or similar instrument, threaten to disfigure her, press the ...
bread knife to her face, drag her from a couch and threaten further violence
towards her, sit on top of her ... and press your hands ... against her throat ...,
bite her on the arm and bind her ankles and wrists with telephone flex and
tape, all to her severe injury and to the danger of life...".
[3] It is to be
noted in passing, although of no moment at this stage of these proceedings,
that this case has already been to Privy Council on an issue as to whether the
use of a temporary judge in a High Court trial was compatible with the
Convention on Human Rights and in particular Article 6. The Privy Council decided this point in
favour of the Crown, but this explains the delay in this case coming before
this court in relation to the charges now under consideration.
[4] The
complainer in each of the relevant charges was the common-law partner of the
accused and they lived together at the locus.
She gave evidence, but so far from incriminating the accused she did her
best to exculpate him. She had
incriminated him in statements given to the police but she retracted
those. Her evidence was therefore of no
moment so far as this appeal is concerned in relation to any of the three
charges.
[5] Counsel for
the appellant, in respect of each of the relevant charges, supported grounds of
appeal relating first to lack of sufficiency of evidence, and secondly to
alleged misdirections in relation to each of the charges. He submitted, generally, that in relation to
each of the charges, which he accepted were free-standing, there was
nevertheless a correlation of mistakes in the case which could lead
cumulatively to a miscarriage of justice.
We doubt there is much force in that point and propose to consider each
of the charges separately since they involve separate incidents.
Charge 5
[6] The principal
witness in relation to this charge was the complainer's niece, Arlene Robertson,
who lived close by. On 30 October
2002
the complainer's son Ross came to her, that is Miss Robertson's house,
worried about his mother and asked if she would go along to her house, i.e. that
of Mrs Martin. She complied and
found the complainer upstairs lying on the bed with a black eye. With some difficulty Miss Robertson
persuaded the complainer to return with her to her house and, as she was doing
so and as the ladies came down the stairs, the accused appeared from the
kitchen and in the course of conversation, which was to the effect that he was
going to try to prevent Mrs Martin going anywhere, he admitted to
Miss Robertson that he had hit her.
She deponed that the appellant was in a very violent mood. It appeared that the complainer also had an
injury to her elbow.
[7] In
cross-examination she was not greatly shaken by suggestions that there had been
fight between the complainer and the appellant and reasserted the admission by
the appellant in her presence that he had hit the complainer.
[8] The other
principal witness in this charge was Ross Martin himself, who was reluctant to
give evidence but when pressed accepted that certain things he had said to the
police in a police statement were correct relating to the incident on Wednesday
30 October 2002. (See pages 41 to 43
of the transcript.) The effect of this
was that he had been in the house and heard an argument. He did not see the appellant assaulting his
mother. Part of the content of that
statement, it seems, may have contained an assertion that he had left the house
because of the arguing, to which on page 34 of his charge the trial judge
makes reference. However, unfortunately,
that part of the statement was not adduced in front of the jury, although the
latter part of the statement relating to a telephone call made by his mother to
him and a subsequent meeting where she appeared to be injured,
was before them. The judge's reference
forms a ground of an allegation of misdirection, to which we shall return.
[9] On the
question of sufficiency, counsel simply stated that the evidence of Martin,
although competently admitted through statements which he adopted in evidence,
was not sufficient to corroborate the evidence given by Miss Robertson.
[10] However, the
position of the Advocate Depute was that Martin corroborated the fact that his
mother was injured at the material time, that the incident had occurred and
that he had heard argument. This was
capable of confirming the evidence given by Miss Robertson as to the
admission (Fox v HMA 1998 S.C.C.R. 115).
[11] With this we
agree, and therefore we shall refuse this aspect of this ground of appeal. There is sufficient corroboration, given what
he heard in the house and the evidence of injury, to support the position of
the Crown.
[12] Counsel then
turned to the issue of misdirection and focused specifically on the mistake
made by the trial judge in page 34 of his charge by including in his
quotations from the statement given by Martin to the police, to the effect
"because of
the arguing I decided to leave the house".
It was accepted by the Crown that in fact this part of the
statement in question had not been given in evidence, although it was in the
statement as taken by the police.
[13] This, counsel
submitted, amounted to a material misdirection because it was highly
prejudicial to the appellant's position, at least in respect of general
background.
[14] With some
hesitation, since it is plainly a mistake which might amount to a misdirection, we have come to the conclusion that in the
overall context of the circumstances given in evidence surrounding this charge
it is not sufficiently material to constitute a miscarriage of justice. We accept, as counsel put it to us, that the
jury were bound to accept the directions given by the trial judge, but this
generally relates to issues of law rather than fact and this mistake, which is
the way we prefer to categorise it, simply amounts to a misrecollection of the
evidence, and that is covered by the general directions given at the start of
the charge by the judge that when it came to those issues, i.e. those of
evidence, it was the recollection of the jurors that mattered.
[15] In these
circumstances, for this reason, we consider this aspect of this ground of
appeal also fails.
Charge 8
[16] Again in relation to this charge the
evidence of the complainer was of no assistance to the Crown. The principal witness was Jamerie Currie, who
was Ross Martin's girlfriend. She
deponed that on the night in question, 5 November, she and Ross had gone
to a local bonfire and returned to the house about 8.00 o'clock going upstairs to Ross's room. The appellant entered the room and there was
an incident involving him and Ross and a golf club. He was in a very violent mood. The witness and Mrs Martin went
downstairs to the kitchen. The appellant
followed and according to the witness he grabbed the complainer, threatened her
with a screwdriver and punched her on the face and head. All this took place in the kitchen of the
house.
[17] Ross Martin did
not go into the kitchen, in fact leaving the house by the upstairs window
because, presumably, he was frightened as a result of the assault upon him by
the complainer. Counsel submitted he
could not therefore corroborate what had happened in the kitchen which location
was a central part of the Crown case in this charge because of the way it had
been averred.
[18] However, there
was another witness for the Crown in relation to this charge, namely Dionne
Martin, who was Ross Martin's sister and therefore the complainer's
daughter. She came to the house at the
material time and did depone to an incident between the complainer and the
appellant but, as is apparent from pages 6 to 8 of the transcript of her
evidence, she was deponing into an entirely different type of incident
effectively involving a fight between the appellant and the complainer. Counsel therefore submitted there was no
conjunction of testimony between Miss Martin and Miss Currie so as to
make the former capable of corroborating the latter's evidence.
[19] It is perhaps
significant that the trial judge makes no mention whatsoever in his charge to
the evidence of Dionne Martin in this context and it may reasonably be assumed
that he thought it was nothing to the point for the reasons already alluded to
by counsel for the appellant.
[20] The Advocate
Depute valiantly sought to suggest that the evidence of Ross Martin was
sufficient to provide corroboration of what happened in the kitchen, but we are
unable to accept that proposition. None
of his evidence related to anything happening in the kitchen. The evidence of Jamerie stands uncorroborated.
[21] For this,
again, narrow reason we are of the opinion that there is not sufficient
evidence by way of corroboration to support the evidence given by Jamerie and
thus render this conviction incapable of being supported.
[22] In these
circumstances, in relation to charge 8, the appeal will be allowed and the
conviction quashed.
Charge 10
[23] In relation to this charge, it is to be
observed that, in terms of the conviction, it extends in time over a period of
some two days and substantially focuses on a wide ranging series of assaults
over that time.
[24] Here again the
principal witness was Jamerie, who had already deponed to the incident which she
observed on 5 November to which reference has already been made. However, this charge is not confined to a
particular occasion in the kitchen. In
this respect the evidence of Dionne Martin could be of some significance. More importantly, she deponed that she had
gone back to the house on 6 November, went into her mother's bedroom and
found her mother injured with a badly bruised face. The only other person in the house was the
appellant. When she went back again on
7 November she heard an argument in the bedroom. She did not see her mother alone. She was concerned and telephoned the
police. The police eventually arrived
and a police woman attending duly gave evidence. The latter deponed that the complainer had
substantial bruising to her face and blood on the top of the mouth. She was very reluctant to speak, although she
suggested that she had been involved in a fight with a woman from Cowie. The appellant was present at this time trying
to prevent the complainer from making any statement to the police and encouraging
her to make reference to the Cowie incident.
The police in fact summoned an ambulance and when it arrived the
complainer, who had gone to a house with a friend, was confronted by the
appellant running from his house in his shorts, angry and swearing, and making
as if to prevent her getting into the ambulance. He was subsequently arrested and charged with
three separate charges, making extremely offensive replies.
[25] It is not
without significance that various other findings in the locus by the police would
suggest that somebody had been subjected to sustained violence and that had to
be the complainer. The screwdriver
mentioned in the previous charge was found in the kitchen and there was blood
on the furniture in the livingroom.
[26] What is much
more important to our mind in relation to this charge is that the jury were
entitled to take into account all the evidence in the case relevant to the
appropriate time period, which revealed a pattern of violence, a number of
incidents all involving the complainer and the appellant and nobody else, with
subsequent serious injuries at times being sustained by the complainer. The attitude of the appellant at the time the
police arrived and his subsequent behaviour is to our mind entirely confirmatory
of guilty involvement and certainly can amount to an adminicle of
corroboration. The evidence of Ross
Martin as to the overall violent behaviour over the relevant period is also
highly significant. In these
circumstances we have no difficulty in holding that the pattern of the evidence
is more than capable of providing corroborated evidence from more than one
source of violent conduct perpetrated by the appellant on the complainer such
as is found in the narrative of charge 10 accepted by the jury in their
conviction.
[27] In this
respect, therefore, the appeal under this part of this head fails.
[28] The final but
important point taken by counsel in relation to his appeal under this charge,
under the general head of misdirection, relates to a part of the trial judge's
charge to the jury at page 39 where he says, as follows:
"But ladies and gentlemen, where you
have evidence from an eyewitness identifying someone whom the eyewitness knows
as the assailant and you accept that evidence as credible and reliable,
assuming you do then not very much more is needed to corroborate that
evidence..."
[29] Counsel
attacked that statement as being an unsound statement of law. He accepted that it could be derived from a
passage of the Lord Justice General in a case relating to identification
evidence, Ralston v H M Advocate 1987 S.C.C.R. 467 at
page 472:
"It has been said before in a number
of cases that where one starts with an emphatic positive identification by one
witness then very little is required.
That little else must of course be evidence which is consistent in all
respects of the positive identification which has been given."
Counsel also referred us to a similar statement of law in the
context of confessions in Meredith v Lees 1992 S.C.C.R. 459. If, submitted counsel, these cases reflected
the proper state of the law at the relevant times they were decided, they had
been disapproved, at least indirectly by a five judge case, to which reference
is already made, namely Fox. That case in fact specifically overruled
a previous case of Mackie, but
counsel submitted by implication it rendered the dicta in both Ralston and Meredith ineffective. He
also referred us to a more recent case of Gonshaw
v HMA 2004 S.C.C.R. 482 which he
submitted confirmed the new pattern if it was properly to be regarded as such.
[30] It is
important to note that in Murphy v H M Advocate 1995 S.C.C.R. 55 at
page 60 the Lord Justice Clerk, commenting specifically on the passage to
which reference has already been made in Ralston,
said as follows:
"In that passage the Lord Justice-General
is simply making the point that evidence may afford corroboration and even
though it is small in amount, provided it has the necessary character or
quality and it will have the necessary character or quality if it is consistent
with the positive identification evidence which requires corroboration."
That passage seems to us to explain, and properly place in
context, the passage in Ralston and
does not have the effect that the court is suggesting that the requirements for
corroboration are less or devalued in the context of a clear identification or
confession position. Even before Fox, we do not consider that either of
the cases in question did not require corroboration by the means of an
independent and material source of evidence.
While it might be small in quantity it could be very high in quality and
it is for the jury to determine its effect.
In Fox, where the court talks
about confirmation rather than consistency in relation to the nature of corroborated
evidence, we consider that is doing no more than re-stating that basic
position, even though the terminology may be slightly different.
[31] Having said
that, however, we do not consider that it is advisable or helpful for trial
judges to use the expression used in this case, to which reference has been
made. We consider that the general rules
relating to the requirement of corroboration should not be diminished or
devalued simply because there is one clear fundamental source of evidence against
the accused for which corroboration is being sought. We consider it to be the wiser course for a
trial judge simply to direct the jury that having identified the primary source
of evidence against the complainer to emphasise that there must be a secondary
independent source confirmatory of the substance of the case. Whatever may be its quantity, it is its
quality that the jury has to assess independently of the primary source.
[32] While,
therefore, in the context of the present case, the phrase used by the trial
judge is capable of criticism, we do not think it amounts to a
misdirection and certainly not to creating a miscarriage of justice in
the whole context of this case. In the
relevant context corroborative evidence was undoubtedly present to be accepted
by the jury if they so determined.
[33] For these
reasons this aspect of this ground of appeal in respect of this charge also
fails.
[34] In these
circumstances the appeal in relation to charge 8 is allowed. That conviction will be quashed. Quoad
ultra the appeal is refused. It will
however be necessary for the case to be continued to consider whether this
decision bears upon the issue of sentence having regard to the fact that the
charges under appeal attracted a cumulo
sentence from the trial judge.
