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NOTE OF APPEAL AGAINST CONVICTION BY JH AGAINST HIS MAJESTY'S ADVOCATE [2024] ScotHC HCJAC_10 (07 March 2024)
URL: http://www.bailii.org/scot/cases/ScotHC/2024/2024_HCJAC_10.html
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[2024] ScotHC HCJAC_10,
[2024] HCJAC 10
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 10
HCA/2023/314 /XC
Lord Justice General
Lord Boyd of Duncansby
Lord Beckett
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST CONVICTION
by
JH
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Neilson; John Pryde & Co SSC (for Messrs Livingstone Brown, Glasgow)
Respondent: A Prentice KC (sol adv) AD; the Crown Agent
__________________
7 March 2024
Introduction
[1]
This appeal concerns an alleged misdirection by the trial judge on corroboration in
relation to one of a series of charges of physical assaults by the appellant on members of his
extended family. The appeal is taken on the basis that the judge did not provide the jury
2
with an appropriate route to verdict, including the application of mutual or standalone
corroboration.
The charges and evidence
[2]
The appellant was convicted of, inter alia, charge (1) which libelled that:
"on various occasions between ... 1999 and ... 2001 ... within a flat in ... Glasgow ...
and ... Place, Stirling you ... did assault [S], ... and did strike him on the head, push
him on the body and cause him to fall, seize hold of him, restrain him, punch and
kick him on the body, head butt him, strike him on the hands with a remote control,
extinguish cigarettes on his body and hold his head under water, all to his injury".
[3]
The direct evidence on this charge came first from S himself. He was the appellant's
partner's son. He spoke to being subjected to a number of physical beatings when he was
aged between 3 and 5. This involved him being subjected to the assaults libelled. These
consisted of different episodes and various types of attack. Secondly, direct corroboration
came first from B, who is S's brother, who spoke to an incident when the appellant wet his
bed and was slapped on the face and head by the appellant. The appellant's partner's
mother, Ag, who was blind, gave evidence of an assault when S had wet himself, at the age
of 4, in a supermarket and the appellant had thrown him to the pavement. She spoke to
other occasions when she heard the appellant smack S.
[4]
There was also mutual corroboration. The appellant was convicted on three other
charges of physical assault and two of sexual offending, with which the appeal is not
concerned. Charge (3) was an assault on B, which involved the appellant choking the
complainer. B also spoke to charge (5), which was an assault on another of the appellant's
partner's daughters, K. B spoke to the appellant hitting K with a belt, when K was aged 2 or
3, and slapping her on the head. Charge (6) was an assault on another daughter, A, when
she was aged between 2 and 5. A spoke to being burnt by the appellant on the face with a
3
cigarette. She said that the appellant had tried to batter her and had kicked her on the shin,
thigh and arms.
Directions
[5]
Both in his opening remarks and in his ultimate directions, the trial judge stressed
the need for there to be corroboration for a conviction to follow on a particular charge. At
the start of the trial, he mentioned that, in certain circumstances, mutual corroboration could
apply whereby the evidence of a complainer in one charge could corroborate the evidence of
another complainer about another charge. In his final directions, he said:
"On charge (1), the charge of assault on [S], the evidence comes from [S] himself, [B]
and [Ag]. What you make of their evidence is a matter entirely for you, but there is
corroboration of the charge if you accept it.
Be aware of this, ... so long as a part of the charge is corroborated then the
remainder of the charge can be proved by the evidence of a single witness, so long as
there's been another source of evidence, another witness in respect of part of the
charge.
So, for example, if you accept the evidence of [B] regarding the hitting by the
accused of [S] after the bed wetting incident, that could corroborate [S's] evidence on
the parts of the charge which he described ... and, similarly, in respect of the
evidence of the grandmother regarding the incident outside the supermarket the,
... throwing of the boy onto the pavement. ... that could corroborate the rest of [S's]
evidence on the other aspects of that charge."
[6]
When it came to the directions on one of the sexual offences, the trial judge referred
again to the principle of mutual corroboration. He then directed the jury that, in relation to
the physical assault charges ((3), (5) and (6)), these could only be proved by the application
of that principle. Where a crime was committed and there was only one eyewitness, the
commission of each crime could be corroborated by the evidence on the other charges if the
crimes were so closely linked by their character, circumstances and time as to bind them
together as parts of a single course of conduct systematically pursued by the accused. For
4
this to apply, each of the witnesses speaking to the separate charges had to be accepted as
credible and reliable; otherwise an acquittal had to follow. The judge made it clear that the
physical assaults could only be corroborated by evidence of another physical assault and not
by reference to the sexual offending.
[7]
The trial judge continued:
"... in this case the Crown does invite you to make use of this principle and to do so
in the following ways. Firstly (sic), on charges (3), (5) and (6), the assault charges,
where there is only evidence on each of those from one witnesses, namely [B] on
charge (3), the assault on herself by seizing her by the throat, charge (5); the assault
on [K] where the only evidence came from [B]; and charge (6), the assault on [A]
where the only witness who spoke about this charge was [A] herself."
The Crown says that the principle ... can be applied ... [I]t relies on these
points of similarity, also making use of the evidence of [S] regarding charge (1), the
assault upon him. The similarities are these according to the Crown. This was
violence used by an adult, that is a parent or step-parent, and always being used on
young children. They all happened in a domestic setting. They all happened when
the accused was alone with the child. Some of the criminal conduct was similar with
the use of a weapon ... and similar conduct in the form of the alleged burning of the
complainer with a cigarette ...".
[8]
The trial judge went on to explain how various permutations might apply in respect
of the assault charges. He continued by stating that if they accepted the evidence of [S] on
charge (1) then the principle of mutual corroboration could apply to supply corroboration
for the remaining assault charges (3), (5) and (6). He did not, at least specifically, tell the jury
how the evidence on these latter charges might supply corroboration of charge (1) or how
the direct corroboration might operate to establish the various assaults within that charge.
Submissions
Appellant
[9]
The trial judge erred in law by omitting to explain either of the two different ways in
which charge (1) could be proved by corroborated evidence; within the confines of the
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charge itself (HM Advocate v Taylor 2019 JC 71) or by the application of mutual corroboration
from the evidence on the other assault charges. Charge (1) could not be described as a series
of repeated assaults over such a short period that they might be considered to be part of one
episode of offending (Dalton v HM Advocate 2015 SCCR 125 at 127). It described separate
incidents, with substantial periods of time in between. Therefore the normal requirement
for corroboration applied to each incident (Spinks v Harrower 2018 JC 177 at 181; cf Stephen v
[10]
The jury would have had to have been told that, for corroboration to operate, the
conduct had to be part of a single course persistently pursued. For charge (1) to have been
proved without reference to the other charges, there had to be a direction on the operation of
mutual corroboration within the confines of that charge. The second route to verdict was by
the operation of mutual corroboration between charge (1) and the physical assaults in the
other charges. There was insufficient by way of direction on how that could operate.
Although, from part of the directions, it could be inferred that charge (1) could be proved by
the application of mutual corroboration, that was precluded by the direction that the only
ones which could be proved in this manner were charges (3), (5) and (6).
Crown
[11]
The Advocate depute accepted that charge (1) was an omnibus one which libelled
separate incidents of assault, each of which had to be corroborated (Dalton v HM Advocate
and Spinks v Harrower). Mutual corroboration could be used to prove such a charge, but
only if a course of conduct systematically pursued were established (HM Advocate v Taylor;
Rysmanowsi v HM Advocate). In order to convict the appellant on charge (1) the jury required
to apply mutual corroboration either in the traditional sense, by using the evidence in
6
respect of the other assault charges (3), (5) and (6), or by applying Taylor. It was accepted
that the judge had not directed the jury clearly on either of these routes to verdict. The jury
could not have used a Taylor approach because that had not been explained to them.
[12]
There were, however, sufficient general directions on mutual corroboration for the
jury to apply it to charges (1), (3), (5) and (6). The evidence of B, A and Ag could corroborate
that of S on charge (1). This was sufficient to provide a route to verdict in the context of the
trial Advocate depute having invited the jury to find that charge (1) involved a course of
conduct which could be corroborated by the evidence of the other assaults.
[13]
Had the jury been properly directed, they would have arrived at the same verdict
(Stalley v HM Advocate 2022 JC 121). The jury believed, and found reliable, the testimony of
each of the complainers. They were satisfied that the appellant's behaviour constituted a
course of criminal conduct similar in time, character and circumstance. The judge's
omission was favourable to the appellant, as it reduced the routes to verdict from two to
one. The jury convicted on charge (1) unanimously. There was no real possibility of a
different outcome (DM v HM Advocate [2023] HCJAC 22 at para [17]). No miscarriage of
justice had occurred.
Decision
[14]
The trial judge's direction, at least in relation to charge (1), that "so long as a part of a
charge is corroborated then the remainder of the charge can be proved by the evidence of a
single witness", was wrong. Whether corroboration of part of a charge is sufficient depends
upon the nature of the charge. If it libels a single assault, corroboration of part of the assault
may be sufficient, but where what is libelled is an omnibus charge which includes different
assaults, separated in time, each assault requires to be corroborated (Dalton v HM Advocate
7
2015 SCCR 125, LJC (Carloway), delivering the opinion of the court, at para [42]; Spinks v
Harrower 2019 JC 71, LJG (Carloway), delivering the opinion of the court, at para [14],
followed in HM Advocate v Taylor 2019 JC 71, Lord Glennie, delivering the opinion of the
court, at para [13]). Where the assaults on a single complainer are linked in time,
circumstances and character such that they can be said to form part of a single course of
criminal conduct systematically pursued by the accused, evidence from a separate source
which directly corroborates one or more of the assaults may be sufficient to corroborate each
assault as part of that course of conduct.
[15]
There would have been little difficulty in the jury holding that the assaults on S were
part of the requisite course of conduct and thus adequately corroborated by the testimony of
B and Ag about seeing and hearing different assaults on S. The problem is that the jury
ought to have been directed accordingly on the need for that course of conduct to be
established. The second route to a guilty verdict would have been by the application to S's
testimony of mutual corroboration derived from the evidence of B on the assaults on her and
on K and from that of A on the cigarette and other attacks on her. This would also have
required a direction to that effect, including the need for the jury to accept that the assaults
on the various different complainers also constituted the requisite course of conduct. The
peculiarity about the trial judge's directions is that, although he did give such a direction to
the effect that charges (3), (5) and (6) required to be corroborated in this way, and that S's
testimony could form part of that type of proof, he did not expressly state that the converse
was also true. The evidence on charges (3), (5) and (6) could provide the necessary
corroboration of S's testimony on the assaults in charge (1), provided that the course of
conduct requirement was met.
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[16]
That misdirection and omission having been established, the issue for the court is
whether a miscarriage of justice has occurred. The court is satisfied that no miscarriage
arises. First, the jury were given general written and oral directions on mutual
corroboration. The trial judge had identified charges (1), (3) (5) and (6) as a group of assault
charges. Secondly, the jury must have accepted the testimony of each of the complainers,
including S. They accepted, from their verdicts on charges (3), (5) and (6), that the requisite
course of conduct had been made out. They must inevitably have considered that the
assaults on charge (1) formed part of that course. They had been directed properly on how
to apply mutual corroboration to the evidence on different charges, albeit not expressly in
relation to charge (1). That being so, the jury had sufficient directions by way of a route to a
guilty verdict on all charges.
[17]
The appeal is refused.
