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APPEAL AGAINST CONVICTION BY WILLIAM BAIN [2024] ScotHC HCJAC_16 (25 April 2024)
URL: http://www.bailii.org/scot/cases/ScotHC/2024/2024_HCJAC_16.html
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[2024] HCJAC 16,
[2024] ScotHC HCJAC_16
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 16
HCA/2023/422/XC
Lord Justice General
Lord Matthews
Lord Boyd of Duncansby
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST CONVICTION
by
WILLIAM BAIN
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Barr; Paterson Bell, Edinburgh (for McClure Collins, Glasgow)
Respondent: Harvey AD; the Crown Agent
__________________
25 April 2024
[1]
On 7 July 2023, at the High Court in Glasgow, the appellant was convicted of a
contravention of section 1 of the Domestic Abuse (Scotland) Act 2018. This libelled a course
of behaviour towards his partner between July and December 2021. This comprised a series
of assaults by, for example, head-butting the complainer, spitting on her, pushing her,
compressing her neck, dragging her from one room to another, attempting to push her over
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a wall, taking money from her, brandishing a knife at her and striking her on the head and
body with a hammer. It also included damaging her property; notably shredding her
clothing and smashing her mobile phone. The libel continued with the following allegation:
"and on an occasion when she was asleep and intoxicated and unable to consent you
did penetrate her anus with your fingers and penis without her consent".
[2]
The trial judge imposed an extended sentence of 13 years, nine years of which was
the custodial element.
[3]
There was ample evidence from several witnesses, including friends, relatives and
the police, of the complainer being, at various times, in a state of extreme distress. There
was corroboration of the physical assaults by way of bruising and swelling to the
complainer's face and body. Witnesses had seen a broken mobile and ripped dresses. They
had observed the complainer's house in disarray. Threatening texts were adduced in
evidence. The appellant himself admitted "choking" the complainer, although he said that
was with her consent.
[4]
There was no direct corroboration of the allegation of non-consensual anal
intercourse. The jury acquitted the appellant of other allegations of a sexual nature.
[5]
The trial judge directed the jury that, for a conviction, they required to be satisfied
that the course of behaviour had to be proved by corroborated evidence. In particular:
"At least two incidents forming the alleged course of behaviour must be proved by
evidence coming from at least two sources. Provided that is the case, then ...
[whether] you can convict of elements of the charge which are spoken to only by a
single witness, depends on whether you're satisfied that those elements were part of
the same course of abusive behaviour as I've defined that term."
[6]
The appellant accepted that section 1 of the DASA created an offence which could be
proved by two or more witnesses speaking to two or more incidents in a course of abusive
behaviour (CA v HM Advocate 2023 JC 8 at para [9] et seq.). It was accepted that, in terms of
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the DASA (s 2(2)(a) and (4)(a)), such incidents could involve sexual as well as physical
violence. For these reasons it was not disputed that there was sufficient corroboration to
prove the charge as a generality. The ground of appeal was one of unreasonable jury verdict
(1995 Act, s 106(3)(b)). The contention, which has a somewhat tenuous connection with
reasonableness of verdict, was that allowing minor non-sexual behaviour to corroborate a
serious sexual offence, which could have been libelled as rape, gave rise to a situation in
which an individual could be convicted of extremely serious conduct which was not directly
corroborated. This could result in wrongful convictions. For these reasons, appropriate
directions had to be given to avoid that outcome. There was a need for there to be a nexus
or link between the serious and non-serious activities (DF v HM Advocate, unreported, Lord
Matthews, 10 August 2021 at para [49]). The directions which had been given were not
adequate and a miscarriage of justice had occurred. No reasonable jury, properly directed,
could have convicted the appellant of the sexual element in the charge.
[7]
The Crown replied that Parliament had made it clear that sexual violence could form
part of a course of abusive behaviour and thus form part of a charge under section 1 of the
DASA. Once that were accepted, there was no basis for distinguishing incidents of sexual
violence, however serious, from other forms of abusive behaviour. It was sufficient that at
least two of the incidents were proved by corroborated evidence, thus enabling the jury to
convict of the remainder, albeit uncorroborated, elements, if they were part of the relevant
course of conduct. There was no need for a direction on there being a link. The jury had
been properly directed in accordance with the recent jurisprudence (CA v HM Advocate at
para [10] et seq).
[8]
The Domestic Abuse (Scotland) Act 2018 creates an offence of engaging in a course of
abusive behaviour towards a partner or ex-partner. What requires to be proved by
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corroborated evidence is the course of abusive behaviour; not individual elements within it.
Following the ordinary principles of corroboration, where there are several instances of
abusive behaviour, as there must be to constitute a relevant course, the offence will be
proved if two or more of the incidents are spoken to by different witnesses (including the
partner or ex-partner) and these incidents can be seen as being part of a course of behaviour
libelled (DF v HM Advocate, (unreported, 10 August 2021, Lord Matthews at para [49]); CA v
HM Advocate 2023 JC 8, LJC (Lady Dorrian) delivering the Opinion of the Court, at para [10]
et seq). One act will inevitably be more or less serious than the other or other acts, but
"behaviour" includes both sexual and violent behaviour (DASA 2018, s 2(4)).
[9]
It is not disputed that there was a sufficiency of evidence. The trial judge gave
adequate directions on what constituted a sufficiency. In particular, he said that they could
only return a verdict of guilt on an element which was only spoken to by one witness (ie the
complainer) if it was "part of the same course of abusive behaviour". The jury must have
believed the complainer in relation to the sexual element under consideration; as they did
with many of the physical behaviours. Following the judge's directions, the jury must have
accepted that the sexual element formed part of the course of conduct. In that situation, the
jury would have had little difficulty in reaching the rational conclusion that the appellant
should be found guilty of that sexual element.
[10]
The appeal is accordingly refused.
