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Cite as: [2022] ScotHC HCJAC_28, 2022 GWD 27-389, 2022 SCCR 241, 2022 JC 248, [2022] HCJAC 28

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2022] HCJAC 28

HCA/2021/000412/XC

Lord Justice Clerk

Lord Malcolm

Lord Matthews

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

APPEAL AGAINST CONVICTION

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

Appellant: W Hay; John Pryde & Co, Edinburgh for MSM Solicitors, Glasgow

Respondent: A Edwards QC, AD; Crown Agent

14 July 2022

Introduction

[1]

The appellant was convicted after trial of two charges. The first was a charge of

assaulting his son, A, then aged 6, on various occasions over a 5 month period, by

repeatedly striking him on the head with his hand and repeatedly pulling him by the hair.

The second was a charge of assaulting another boy, B, on various occasions over the first

four months of his life, by numerous means, and failing to provide and seek appropriate,

timely and adequate medical aid for the child, all to his severe injury and the danger of his

life.

[2]

The appellant was in a relationship, and cohabited with JG, the mother of both

children. He was the father of A, and JG maintained that he was the father of B, although

the evidence suggests that there was some doubt on this point in the mind of the appellant.

The children had four other siblings.

[3]

The jury were directed that in respect of each charge they could convict on the basis

of the evidence led on those charges alone. They could treat the various statements made by

the appellant as admissions. They were also directed, as an alternative, that they could

convict on the basis of mutual corroboration. The appeal proceeds on the basis that there

was insufficient evidence on charge 1 standing alone and that it had been a misdirection to

tell the jury otherwise. It proceeds also on the basis that it was in any event open to the jury

to proceed on the basis that the evidence in respect of each charge was capable of being

mutually corroborative, leave to appeal that point having been refused.

The evidence

[4]

The primary evidence in relation to charge 1 came from the child in question. His

evidence consisted of a JII recorded when he was 6, and cross-examination on commission

when he was 14. His evidence in chief was to the effect that the appellant "kept on" hitting

him (and, led without objection, his siblings) about the head. It happened about 20 times

and was sore. His mother was good to them, and did not hit them: "She tells ma dad to stop

it." In cross-examination he retracted this evidence, stating that the allegations in the JII

were not true. He had made them up because his granny had told him to.

[5]

The corroboration relied on was in the form of comments made by the appellant in

the course of telephone calls made between him and JG during his period on remand, which

calls had been recorded and transcribed. Much of the content related to assaults on B. There

were however other passages relied on in relation to A.

[6]

In one call the two were discussing the children in general, albeit with some specific

reference to B, and the issue of his parentage. The appellant stated that he wanted all the

children "Every single wan ah them" home (they were by then in foster care). JG disputed

this, repeatedly saying "Naw ye don`t". and "Naw ye don`t ... ye don`t even give a Fuck".

The appellant then said "They`re aw ma boys ....aye they are, that`s the wie ah see them".

The conversation continues with comments about child B, and then turns to the issue of the

appellant`s past disciplining of the children where he says-

"An even you, even you did me for when Ah grabbed G by the face. Ah know Ah've

done that a couple of times an you get me tolt for that baby an Ah love you for it.

Stop bein that rough wi him he`s only fuckin 10 an aw that baby. Ah love you for

that Ah dae. Ah dae baby so see it doesnae matter what anybody.... See any times

that Ah have wanted tae an Ah`ve been beelin` baby you shout, you shout behind

me they`re only fuckin weans you, fuckin wrap it and it makes me stop you know

that dain`t ye?"

[7]

There shortly follows a further exchange as follows:

"Appellant ... Ah`m sorry ..for all the bad years we had. Am ur. They fuckin haunt

me baby.

Baby it`s awright.

Appellant: They geen me the guilty heed baby. Ah`m sorry baby.

Well stop hittin them.

Appellant

Yer ten times better than that baby. You`re a million times better than

one, you`re ma darling you ur. Man you`re no even that an aw you`re

ma big smoking hot darling".

Submissions

[8]

It was submitted that the responses by the appellant could not properly be regarded

as an unequivocal admission in relation to conduct libelled in charge one. It was too

generalised to be capable to being construed as such. Nor could it be construed as any kind

of implied admission, the necessary context to permit this being missing - see Greenshields v

HMA 1989 SCCR 637. The comment "stop hitting them" comes not from the appellant but

from JG. It is not acknowledged or admitted by the appellant. There was no form of

admission made by the appellant in response to any clear and specific allegation. There was

no standalone sufficiency in respect of charge 1, and it was a misdirection to tell the jury

otherwise. Esto the Crown submission was correct, the trial judge did not direct the jury

how to assess the response, or lack of it, from the appellant.

[9]

The Advocate Depute was right to submit that the important evidence lay not so

much in what was said by the appellant but by his failure to deny or contradict JG when she

made the remark "Well stop hittin' them".

Analysis and decision

[10]

The issue of the use of an admission as corroboration of primary evidence was

recently considered in CR v HMA [2022] HCJAC 25, where the court noted (para 15):

"Whether, and to what extent, a comment or reply made by an accused person may

properly be regarded as an admission is a fact specific question, the answer to which

depends on the nature and content of the comment and the circumstances in which it

is made. The contextual situation is important ...".

[11]

Given that the question is such a fact-specific one, individual cases offer little

assistance to the determination in other cases. In order to be corroborative, evidence does

not require to be more consistent with guilt than with innocence. It is sufficient if it is

capable of providing support for or confirmation of, or fits with, the principal source of

evidence on an essential fact (Fox v HM Advocate 1998 JC 94). Moreover, it is well

established that it is not only clear and unequivocal admissions which have evidential value.

The same applies where the significance of the evidence is that an appellant had failed to

respond or react to an allegation in circumstances where that failure could be regarded as

criminative.

[12]

However, it is important to distinguish the case where such evidence is relied upon

as the primary evidence in a circumstantial case, and one where it is relied upon as

corroboration of other evidence which constitutes the primary evidence. In the former, the

nature of the surrounding circumstances may be such that only a clear and unequivocal

admission, made in the context of a specific allegation, or lack of reaction to a clear

allegation, may be sufficient for the purpose. Everything depends on the context. However

the present case is one in which there was clear primary evidence, should the jury choose to

accept it. It was entirely open to the jury to accept the evidence in chief as the truth and to

reject the evidence given on commission. The point which then arises is whether that

evidence was sufficiently corroborated in terms of Fox v HM Advocate.

[13]

The statement "Well stop hittin' them" was made in the context of a much broader

conversation in which the appellant made comments regarding his attitude and behaviour

towards the children in question. The fact that he did not remonstrate with the comment,

deny or dispute it, may be a relevant factor in considering what to make of the conversation

as a whole, but it is the conversation as a whole which must be examined to identify

whether the evidence may properly be said to be criminative of the accused.

[14]

The statement made by JG to the appellant was made in the course of a conversation

in which the appellant refers to disciplining the children to such an extent that JG required

to intervene to stop him. This also accords with the evidence of A regarding JG, that "She

tells ma dad to stop it." It would be open to the jury to treat the relevant parts of the

conversation as criminative of the appellant having hit the children, including A. It is

correct to say that the trial judge did not give specific directions in relation to the failure of

the appellant to respond to what was said by JG. However that was not the real issue: the

real issue, as his directions made clear, was whether the conversation provided

corroborative support for the primary evidence. The trial judge directed the jury that the

content of this, including to some extent what was said by JG, could provide independent

corroboration. The jury were directed that it was a matter for them to determine the

significance of what was said in the phone calls, and that the conversations had to be taken

as a whole. The evidence of the conversation as a whole was clearly capable of providing

support for the primary evidence in the case. The appeal will therefore be refused.