Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 35

HCA/2015/003309/XC

Lady Paton

Lord Menzies

Lord Brodie

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST CONVICTION

by

WILLIAM THOMAS HILL

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  I Paterson, sol adv;  Paterson Bell, Solicitors

Respondent:  Harper AD, sol adv;  Crown Agent

5 April 2016

[1]        On 18 September 2015 the appellant, then aged 50, was convicted of the following offences:

“(001) on 30 December 2014 and 31 December 2014 at 78 [MH] Road, Ayr you WILLIAM THOMAS HILL did send by means of Public Electronic Communications Network, messages to Cheryl Wilson, c/o Police Service of Scotland, Ayr that were grossly offensive or of an indecent, obscene or menacing character and you did repeatedly threaten her with violence:  CONTRARY to the Communications Act 2003; Section 127(1)(a);

and

(002) on 31 December 2014 at 78 [MH] Road, Ayr you WILLIAM THOMAS HILL, knowing that said Cheryl Wilson and James Riddex, c/o Police Service of Scotland, Ayr were within said flat, did place a mattress against a door there, pour an accelerant or similar substance on to said mattress and deposit said accelerant or similar substance through the letterbox and wilfully set fire to said mattress and the fire took effect thereon, to the danger of the lives of the occupants of said flat, and you did attempt to murder said Cheryl Wilson and James Riddex”.

[2]        The appellant was admonished in respect of charge 1.  He was sentenced to 8 years imprisonment in respect of charge 2. 

[3]        The appellant appeals against conviction of charge 2.  He contends that there was insufficient corroborated evidence to identify him as the perpetrator of the fireraising.  Accordingly the judge’s refusal of a ”no case to answer” submission resulted in a miscarriage of justice.

[4]        We refer to the report from the trial judge.  References to that report appear in paragraph [6] below, in square brackets.  A joint minute and certain productions are also referred to. 

[5]        Mr Paterson, on behalf of the appellant, submitted that there was insufficient evidence.  There was no admission that the appellant had set the fire.  The evidence of the texts (which did not mention any fire), the appellant’s possession of a cigarette lighter, and the fact that the appellant was present seeing the fire at 03.47 am, was insufficient.  Accordingly the trial judge had erred in repelling the section 97 submission. 

[6]        In our opinion, there was sufficient evidence entitling a jury to conclude that circumstantial evidence proved beyond reasonable doubt that the appellant was the perpetrator of the crime libelled in charge 2.  In particular a jury would be entitled to have regard to the following strands of evidence:

• The appellant and Cheryl Wilson had been in a relationship for about 4 years.  On 7 January 2014 Miss Wilson had given birth to twin girls of whom the appellant was the father [page 4].
• At the time of the fireraising on 31 December 2014, the relationship had broken down.  Miss Wilson was no longer living with the appellant [page 4].
• A man named James Riddex lived at 78 MH Road, Ayr.  The appellant knew Mr Riddex and had visited him at his home [page 4].  The appellant could walk from his own home (a distance of three-quarters of a mile) over the golf course to Mr Riddex’s home [page 3].
• During 30 to 31 December 2014, in the hours leading up to the fireraising, the appellant sent many texts to Miss Wilson [production no.1 and joint minute, paragraph 3].  During an ill-tempered exchange in which the appellant accused Miss Wilson of being a “slag” who gave sexual favours to other men, the appellant’s texts included the following: 

”Whits wrang ur fanny itchn again to get roon to [MH] Rd cos that’s not going to b an option after tonight” (17.26);  “Jeest get hame …” (19.00);  “ …If u don’t come hame now u never will … Get hame or u will never b back in my house (19.39);   “… R u cumn hame yes or no …” (19.48);  “ … Av no done fuk all as usual yet.  Am going to, and sooner than u might think” (20.20); “ …Until I start backing things up anything I say will be regarded as empty threats.  U r going to have to see with ur own eyes what happens if u fuk wi me.  Then I maybe get the respect I demand.  Am talkn about ur boyfriend watch and learn …” (20.24);  “ … I’m fukn warning u do not annoy me or I will cum and find u …” (20.33)  “Now watch how I seek revenge …” (20.35);  “Now for the last time r u cumn home or not av no done anyhin yet …” (20.42);  “Cheryl please just cum hame hen am sorry for saying those things.  Just cum home …” (21.12);  “Take it ur no cumn hame again.  That only means one thing.  Ur up to no good as usual …” (22.11);  “… U r history goodbye” (00.27);  “… u will b sorry I promise u” (02.54);  “ … this is how u treat me … I will never forgive u Cheryl.  Never.” (03.05); … “I told u what would happen if u went back up there.” (03.12).

• At some time before 03.47 am, estimated at about 03.40 am, on 31 December 2014, a fire was deliberately started at the door of Mr Riddex’s home at 78 MH Road [pages 2 and 4, and joint minute paragraph 1].
• The seat of the fire was a mattress which had been propped against the door and set alight [page 3].
• At approximately 03.47 am on 31 December 2014, the appellant made a 999 call to report the fire [joint minute paragraph 2].
• In the course of that 999 call, the appellant stated that he was at the golf course; that a guy had just lit a fire to what looked like a ‘matt’ (subsequently described by the appellant as ‘it looks like furniture or a couch or something like that’) in the front garden of a house in MH Road, the number being ‘in the 70s’[Crown production no. 7]
• When the fire brigade arrived at 78 MH Road at 03.55 am they found a mattress on fire at the door and a smell of white spirit [page 3].  Inside the flat they found Miss Wilson lying on Mr Riddex’s bed, and Mr Riddex watching TV [pages 3-4].
• One fire officer, Neil McPherson, estimated that the fire had begun 15 minutes before the fire brigade arrived, i.e at about 03.40 am.
• In a subsequent interview with the police at 10.15am on 31 December 2014, the appellant claimed that he had been at his home watching a film on television.  He said that he had no mobile phone.  He denied sending any texts to Miss Wilson.  He denied all knowledge of the fire and denied setting it.  He said that he vaguely knew Mr Riddex and that he had visited No.78.  He claimed that he was at home asleep and had made no phone calls.  He admitted he had a cigarette lighter, as he smoked.  About halfway through the interview he became visibly upset [page 6].

[7]        We consider that the evidence outlined above, if accepted by a jury, provided a strong circumstantial case against the appellant.  In particular, a jury would be entitled to take into account the state of the appellant’s relationship with Miss Wilson;  the nature, content and timing of the texts, the last being at 03.12 am;  and to conclude that the texts demonstrated possessiveness, jealousy, anger and threats.   A jury would also be entitled to take into account the appellant’s acquaintance with Mr Riddex and the fact that he had visited 78 MH Road;  the evidence that Miss Wilson was found in Mr Riddex’s home;  the estimated start of the fire at 03.40am;  and the agreed evidence that the appellant made the 999 call at 03.47am saying that he was at the golf course and that a guy had set fire to a “matt” (which a jury might consider was an interrupted and incomplete version of “mattress”) all at an address in the 70s at MH Road, Ayr.

[8]        In the result, we are not persuaded that the trial judge erred in repelling the “no case to answer” submission.  Nor are we persuaded that any miscarriage of justice has occurred. For the reasons given, we refuse the appeal.