Appellant: Duguid QC, Mitchell; Virgil Crawford, Stirling

Respondent: Prentice QC AD: the Crown Agent

15 April 2014

[1] On 20 June 2012, at Stirling Sheriff Court, the appellant was found guilty of an assault on a female, namely MH, by repeatedly punching her on the head to her injury and by threatening her with violence at an address in Fallin on 26 February 2012. Sentence was deferred several times until on 20 February 2013, after the appellant had completed a 2 year Drug Treatment and Testing Order in respect of other matters, he was fined £250. The ground of appeal is that the sheriff erred in repelling a no case answer submission.

[2] The evidence against the appellant came first from the complainer. She did not have a clear recollection of the incident, but did remember providing a statement to the police. It is not disputed that the complainer "adopted" her statement as her evidence and that this provided one source of evidence that the appellant had assaulted her as libelled.

[3] Secondly, there was evidence from a female, namely KA, who initially purported to have no recollection either of the incident or of giving a statement to the police, because of the effects of valium and heroin. She maintained that she had no memory over a 2 day period. She did not even know why she had been cited to attend court. However, she said that she was prepared to "accept" that a police officer had spoken to her if the officer gave evidence to that effect. She did acknowledge that a statement, which was noted in a police officer's notebook, had her signature appended to it, albeit that its nature pointed towards her drug addled state. This meant, however, that she had "obviously" been talking to the police. She also accepted that, if she had spoken to the police, she would have told the police the truth. In particular she accepted that it would be the truth if she had told the police, as recorded in the notebook, that she had gone with the complainer on a bicycle to a shop in Fallin and had encountered the appellant and his brother. The appellant had called the complainer and the witness "grassing wee bastards" and approached them aggressively. The appellant then said that he was going to hit the complainer and he did do by skelping her twice on the face. The witness accepted not only that this would be the truth if contained in the notebook but also that this was the truth. This is so albeit that in cross-examination she reverted to saying that she could not remember anything that had happened or giving the statement.

[4] The witness was able to identify the appellant, whom she knew as a neighbour, in court. In due course the taking of the statement and its content was spoken to by the relevant police officer.

[5] The ground of appeal relates to the competency of KA's statement as proof of fact, having regard to the dicta in A v HM Advocate 2012 JC 343 that for a statement to be introduced as evidence of fact it was necessary for the four elements referred to by Lord Bonomy to be made out. These included, in particular, that the witness remembered giving a statement and accepted that it was the truth. Reference was made to Rehman v HM Advocate [2013] HCJAC 172. The submission involved a proposition that the witness's evidence should be looked at as a whole and, when that was done, her position was essentially that she could remember neither the events nor the making of the statement.

[6] In response, the Crown submitted that the requirements for a statement to be treated as evidence of fact in terms of Jamieson v HM Advocate (No. 2) 1994 JC 251 were simply that the witness must accept that she gave a statement to the police, could not recall what was in the statement but acknowledged that what was said was true. The four elements referred to by Lord Bonomy were obiter and had not been accepted by Lord Emslie or mentioned by Lord Marnoch.

[7] This is a case in which it is reasonable to conclude that the witness was not keen to give evidence against the appellant and was simply not being candid when she said that she had no recollection of the incident or of giving a statement to the police. That having been said, the witness did ultimately accept that it was her signature on the police officer's notebook and that she must therefore have spoken to the police at the relevant time and place. The witness also accepted not only that as a generality she would have told the police the truth, she also actually accepted that the material passages in her statement were true.

[8] No more was required for the content of her statement to form part of her evidence capable of proving fact in terms of Jamieson (supra). As the Lord Justice General (Hope) said in that case (at 259), it is sufficient if the witness accepted that she had made a statement and that what she had said was the truth. A (supra) was concerned with a complaint about a misdirection on adoption of statements in terms of section 60 of the Criminal Procedure (Scotland) Act 1995 and is not directly relevant. As it was put in simple terms in Rehman (at para [49]), albeit also in the context of a misdirection complaint, if the witness accepts that her statement contains the truth, if it is proved it becomes part of her testimony, available as proof of fact. That is the position in this case and this appeal must accordingly be refused.