Appellant: McQuillan, Solicitor Advocate; Gilfedder & McInnes

Respondent: Wade QC; Crown Agent

4 December 2013

[1] The appellant was charged that, on 2 June 2012, at an address in Sauchie, Alloa, together with a co-accused, Karen Ferguson, he assaulted Christian Shane John Robson, and seized him by the throat, repeatedly punched and kicked him on the head and body and thereafter stamped on his head, all to his injury. The case proceeded to trial on 19 March and 3 April 2013. On the latter date the sheriff convicted the appellant of that charge under deletion of the reference to seizing the complainer by the throat. The co-accused was acquitted on that charge with a verdict of not proven, but she pled guilty to two further charges which involved the possession of controlled drugs. The appellant was made subject to a community payback order with a requirement that he carry out 200 hours of unpaid work within 6 months. The appellant has appealed against his conviction, and the sheriff has provided both a stated case and a supplementary report in connection with the trial.

[2] In the stated case the sheriff provides a summary of the evidence. It is most convenient to begin with the evidence of the complainer, Christian Robson, since he provided the primary evidence of an attack. The complainer was 18 years of age. He gave evidence that he had been staying at the locus on the night of 2 June 2012, this being his sister's address. He had gone to bed and left friends who were in the house to engage in drinking. His evidence was that he was woken up by the sound of screaming. He got out of bed and was attacked by the appellant and the co-accused. Two girls who were present, Keira McKeown and Lee-Anne Winters, had endeavoured to get his assailants off him. The police then arrived, and the complainer went to hospital with Miss Winters. When asked about details of the assault, the complainer stated that the appellant had booted him in the face. In cross-examination he stated that he had been hit more than once. The attack consisted of punching and kicking to the head and body. His injuries were illustrated in a book of photographs. He explained that the injuries had all been sustained in the course of the attack by the appellant and not by accident. It was agreed in a joint minute of agreement that the book of photographs had been taken at 11.10 am on 2 June 2012 and showed the injuries sustained by the complainer.

[3] Keira McKeown also gave evidence. Her evidence is critical to the issue of corroboration, and consequently it is necessary to set it out in some detail. She stated that on the night in question she had been at the locus in the company of some friends, including Miss Winters and the complainer. She stated that she had consumed a considerable quantity of alcohol, and that she was "quite drunk". An exchange of texts or telephone messages had occurred between Miss Winters and Karen Ferguson, the co-accused, who was Miss Winters' mother. As a result of those, Ferguson and the appellant, who was her boyfriend, both attended at the address at a point in the late evening. At that stage in Miss McKeown's evidence the sheriff records that she purported to say that she could not remember what had happened thereafter. A police statement was then put to her. She confirmed that the statement had been made by her to a police officer and that she had told him the truth. She had signed the statement but could not recollect who had taken it.

[4] The sheriff's supplementary report deals with the police statement in greater detail, and indicates the extent to which Miss McKeown spoke about such matters from recollection, as against information contained in the statement which she could not now remember. The sheriff records that the witness stated that the complainer had been staying at the house and that on the evening in question he was in bed. She could not remember facts because of the quantity of alcohol that she had consumed. She stated that the other occupants of the house were also quite drunk. Miss Winters had been on the telephone to her mother, and remembered meeting the appellant and Karen Ferguson in the street. She was able to identify both of them. They had all gone back to the house. Miss McKeown then stated that she could not remember what had happened owing to her drunkenness. The police statement was then put to her, and she confirmed that she had told the police officer the truth. The statement was in the following terms:

"I was downstairs when the older, bigger man went upstairs. The man said that he was going upstairs to talk to Chrissy [the complainer], who was sleeping in the bedroom. Leanne (sic) was upstairs and I heard her shout (stop it). I ran up and saw Leanne's stepdad hitting Chrissy. Leanne was trying to get her stepdad off Chrissy. Her mum came up the stairs and started hitting Chrissy as well as her stepdad. Me and Leanne were trying to get them off. Leanne had been phoning the police constantly. They then decided to leave when Leanne said they phoned the police".

[5] Miss McKeown was cross-examined by the solicitor for Ferguson. According to the sheriff's notes, the witness said:

"I can't remember, I can remember some bits. I remember Leanne texting/phoning her mother. I went with Leanne. I met her mother. I went back to the house. I remember bits of what happened. I can't remember who took the statement. The statement sounded familiar. Some of it came back to me. I would not say it was wrong if that is what I said. I was very drunk".

The witness confirmed some details of the written statement, in particular having heard shouting and arguing, and shouting of "Stop it". The complainer was in a corner of the room, and she could remember him getting hit in the bedroom. She did not remember the statements being read back confirming that it was an accurate record of events. She must have given the description as written to the police. She could have got bits and pieces muddled up. It was suggested to her that Ferguson did nothing at all, and she replied that she did not know. She would not lie to the police, and her statement could have been accurate. Miss McKeown was then cross-examined by the solicitor for the appellant. She stated that Miss Winters had followed the appellant and Ferguson upstairs. She could not remember how long had elapsed before she went upstairs. She remembered "bits and pieces" of what happened. After the appellant and Ferguson left the complainer and Miss Winters were upstairs. The complainer was bleeding, and Miss Winters got a towel. In re-examination she stated that the complainer was bleeding and his face was in some state.

[6] In his supplementary report the sheriff notes that from his notes and what he can still recall, he concluded that Miss McKeown accepted that what she had told the police was true. In particular, she accepted that the account that she gave of the assault by the appellant on the complainer as set out in her police statement was correct. Her subsequent recollection of events was patchy as a result of her inebriation. She did not, however, even in cross-examination resile in terms from her adoption of statement as being a true account of events. She accepted that her signature was below an acknowledgment in the handwritten statement which confirmed "This is a true and accurate record of events".

[7] Miss Winters also gave evidence. She was 17 years of age, and described the complainer as her ex-boyfriend. She confirmed that she had been at the locus with other friends and that a drinking session took place. She described herself as very drunk. She confirmed that the complainer had gone up to bed before the drinking session had got fully under way. She had texted her mother to come and fetch her from the house. She described a confrontation between the appellant and complainer within the bedroom of the house which simply involved pushing. Her mother had come upstairs to see what was going on. She stated that she had lied to the police in her statement and made it up. She agreed that the complainer had been injured in the incident and that his face was covered in blood. She and the complainer had broken up on the day after the incident. She maintained that she did not see the complainer being hit and could not explain why he had sustained the injuries shown in the photographs. The sheriff notes that he did not find Miss Winters to be a credible or reliable witness.

[8] The final Crown witness was PC Steven Ferrier, who had been directed to the locus along with a colleague, PC McPherson. He encountered the appellant and Ferguson close to the front door. He then came across the complainer, who had a blood injury to his face and was obviously quite hurt. An ambulance arrived and the complainer was taken to hospital. Before that the complainer had described being assaulted by the appellant and the co-accused. Later in the evening PC Ferrier had cautioned and charged the appellant with assault. The appellant replied that he did not know how he got there. He said that he remembered going into the house, to a "wee dark room" with a mattress or bed. He then stated that he got nudged in the back, and the next thing that happened was screaming. He heard Ferguson saying that she just wanted "him" (apparently the complainer) to admit it. He heard the complainer say "Aye I did, I did rape your daughter". That was all that he heard through the screaming. He did not remember hitting the complainer but if he did he apologized. He would not kick anyone deliberately.

[9] A submission of no case to answer was made on behalf of the appellant in terms of section 160 of the Criminal Procedure (Scotland) Act 1995. It was submitted that the evidence of Miss McKeown should be regarded as inadmissible. It was said that the statement given and adopted by her had not been proved by the leading of evidence from the police officer who took it. On that basis it was said that there was insufficient evidence to convict. For the Crown it was submitted that the statement had been put to the witness as a prior statement in terms of section 260 of the 1995 Act. In relation to that section, the sheriff held that what is required is that the statement should be contained in a document, that the witness in the course of evidence should indicate that the statement was made by her, and that the statement was adopted as the witness' evidence. It was further necessary that at the time of the statement the person who made it would have been a competent witness. The sheriff considered that all of these criteria had been met. The statement had been signed by the witness and was adopted by her as evidence in the sense that she had said that she had told the police the truth in the statement. The sheriff referred to A v HM Advocate, [2012] HCG AC 29, where it had been held (at paragraph [36]) that there is no requirement for the authentication of statements made under section 260, provided that the statement is put to a witness who is prepared to adopt it. In the present case the statement in question had in fact been authenticated, as it was signed by Miss McKeown at the time when it was made. The written statement given by Miss McKeown was therefore admissible in evidence.

[10] In relation to the merits of the submission of no case to answer, the sheriff stated that the starting point for analysis of the evidence was whether the complainer was a credible and reliable witness and gave a sufficient account of what had happened to him. He found the complainer to be a credible and reliable witness. In particular, the sheriff accepted the complainer's evidence that he had been booted in the face by the appellant and had also been repeatedly punched and kicked by him. Consequently the injuries shown in the photographs had resulted from the actings of the appellant. The sheriff further records that he accepted the evidence of Miss McKeown, in particular that contained in her police statement, to the effect that she and Miss Winters were trying to restrain the appellant and the appellant was hitting the complainer. On this basis the sheriff concluded that the Crown had led sufficient evidence, and he repelled the submission of no case to answer. The appellant did not give evidence, and the sheriff proceeded to convict him.

[11] In relation to conviction, the sheriff states that he proceeded on the evidence of the complainer corroborated by that of Miss McKeown. He did not find Miss Winters to be credible and reliable and he discarded her testimony in respect of the direct circumstances of the assault. While there was limited support for the Crown in the appellant's reply to caution and charge, which the sheriff considered a mixed statement, he did not place great weight on this adminicle of evidence. He found the case against Ferguson not proven, as the evidence of her involvement was somewhat sketchy on specifics, particularly in respect of her art and part involvement.

[12] On the basis of the evidence, the sheriff made the following findings in fact:

"1. The Complainer Christian Robson was in a bedroom of the house at...in the early hours of the 22 June 2012.

2. The Appellant and his wife arrived at the house in the late evening in response to a text or telephone message from the witness Lee-Anne Winters.

3. The Complainer was assaulted in a bedroom of the house by the Appellant. The assault consisted of punching, kicking and a stamp to the head.

4. The Complainer was injured particularly to the face and body as a result of the assault. The injuries required hospital treatment.

5. The witnesses, Kiera McKeown and Lee-Anne Winters, attempted to pull the Appellant off the Complainer to prevent him from being further assaulted.

6. As the police arrived at the house the Appellant and his wife were leaving the property together. At that time the co-accused shouted to witness PC Ferrier and his colleague 'there is a rapist in there' and 'get that dealt with.'

7. The Appellant was detained by the Police shortly after the incident. When cautioned and charged he replied as earlier detailed in the evidence of witness PC Ferrier".

[13] On the basis of the foregoing findings-in-fact, the sheriff asked the following questions:

"(1) Was I entitled to hold witness Kiera McKeown's evidence admissible? On the evidence was I entitled to repel the submission of No Case to Answer made in terms of section 160 of the Criminal Procedure (Scotland) Act 1995?

(2) Was I entitled to make Finding-in-Fact 3?

(3) On the facts found admitted or proved was I entitled to convict the Appellant as amended?"

[14] In our opinion the questions in the stated case should all be answered in the affirmative. We consider that there is a sufficiency of evidence in the combination of the complainer's evidence, which was accepted by the sheriff as credible and reliable, and the evidence of Miss McKeown. For this purpose, the critical parts of the evidence of Miss McKeown were in her police statement. That, it seems to us, is admissible evidence in view of the requirements of section 260 of the Criminal Procedure (Scotland) Act 1995. Section 260(2) states the requirements for admissibility. The first is the statement is contained in a document; there is no issue about that. Secondly, the witness must indicate that the statement was made by her and that she adopts it as her evidence. Thirdly, at the time the statement was made the person who made it must have been a competent witness, about which there is no issue. With regard to section 260(2)(b), we accept that the question of adoption is a question of fact for the fact-finder, the sheriff in this case. In his report and in more detail in his supplementary report, the sheriff states that he concluded that the witness accepted that what she had told the police was true; she accepted that the account she gave of the assault by the appellant on the complainer contained in her police statement was correct. While her subsequent recollection of events was patchy as a result of inebriation, she did not resile, even in cross-examination, from her adoption of her statement as being a true account of events. In particular she accepted that her signature was below the acknowledgment on the handwritten statement which confirmed "this is a true and accurate record of events". In our opinion that amounts to adoption of the statement, and is quite sufficient to satisfy the requirement of section 260(2)(b).

[15] It is not necessary in our opinion that a police officer should be called to give evidence that the statement was made. That is obviously a possible scenario, and in many cases a police officer will give evidence that the statement was made. Indeed, if the witness denies that he or she made the statement, such evidence may well be necessary. An alternative to evidence from a police officer is to put the statement into a joint minute. If the witness herself accepts that she made the statement, however, in our opinion that is quite enough to identify the statement as made by the witness. If she then goes on to say that what she told the police was true that in our view amounts to adoption, and that is sufficient to make the statement part of her evidence.

[16] In these circumstances what the sheriff takes from the statement was properly taken. That evidence covers the fact of the assault on the complainer and identifies the appellant as the person taking part in that assault. Both of these elements are amply dealt with in Miss McKeown's statement. There is accordingly sufficient corroboration of the complainer's evidence. On that basis the sheriff's questions must be answered in the affirmative. He asks first whether he was entitled to hold Miss McKeown's evidence admissible. In our opinion he was. Was he entitled to repel the submission of no case to answer? Again we consider that he was. He then asks whether he was entitled to make finding-in-fact 3, that is that the complainer was assaulted in a bedroom of the house by the appellant, the assault consisting of punching, kicking and a stamp to the head. For the reasons already stated we consider that that finding was correctly made. As to the third question, whether on the facts found admitted or proved, the sheriff was entitled to convict the appellant as amended, again we answer that question in the affirmative. This follows from our answers to the first two questions.