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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2020] HCJAC 47
HCA/2020/1/XC
Lord Justice General
Lord Menzies
Lord Turnbull
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL AGAINST CONVICTION
by
GORDON CAMPBELL
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
Appellant: A Ogg (sol adv); Paterson Bell (for McQuillan Glasser & Waughman, Hamilton)
Respondent: Edwards QC AD; the Crown Agent
27 October 2020
Introduction
[1]
On 21 November 2019, at the Sheriff Court in Hamilton, the appellant was found
guilty of a charge of assaulting his partner on 26 December 2018 at an address in East
Kilbride. The libel was that he had struck her on the head with a glass bottle to her severe
injury and permanent disfigurement. The charge was aggravated in terms of section 1 of the
2
Abusive Behaviour and Sexual Harm (Scotland) Act 2016. On 20 December 2019, the sheriff
imposed a sentence of 2 years and 6 months imprisonment and a non-harassment order of
5 years.
[2]
The appeal concerns the sheriff's directions on the appellant's failure to respond to
an accusation of assault made by the complainer de recenti and observed by a neighbour.
The evidence
[3]
According to the complainer, in the early hours of 26 December 2018, she and the
appellant had returned to the appellant's ground floor flat. They were arguing and
drinking. A friend of the appellant had visited, but left. The complainer said that she would
be leaving shortly and went to the bathroom. In the hall she felt a blow to the back of her
head and glass smashing. She had been hit by a bottle. She saw the appellant's shadow at
the kitchen door. She was hit a second time to the left of her forehead. She fell to the
ground with blood pouring from her head. She saw a silhouette of the appellant, turned
round and saw him standing at the kitchen door about a meter away. There was no one else
in the flat at the time.
[4]
The complainer managed to leave the flat. She crawled to various doors on the same
floor and asked for help, without success. She went upstairs with blood continuing to drip
from her head. Some people opened their doors, but then closed them. The appellant
arrived and said: "Hello, what have you done? Come back into the flat honey". She told
him to keep away and that she was not forgiving him this time.
[5]
A neighbour on the upper floor testified to hearing someone saying "help me" at
about 3.00am. She looked through her door's spy hole and saw a woman slumped and
covered in blood. She asked her husband to telephone the police and an ambulance. The
3
woman was asking for help. The appellant was there as well. He lived on the ground floor.
She realised that it was his girlfriend. The complainer said to the appellant: "You've really
hurt me this time". The appellant did not say anything in reply. The following morning the
neighbour saw a trail of blood leading from the appellant's flat up to her landing.
[6]
The police arrived at about 3.30am and found the complainer covered in blood. She
had a wound on her forehead. They forced entry to the appellant's flat and arrested him.
En route to the police station the appellant asked how the complainer was.
[7]
The appellant testified that he had woken up at about 3.30am and found that the
complainer was not in bed. He went out onto the stairwell and saw her sitting on the
landing. He had asked her what had happened. She had said: "You did this, I'm going to
get the police". He had replied: "I never touched you. If that's what you are saying there is
nothing I can do. I'll need to leave". He then returned to his flat. He did not hear the police
at his door. He had no explanation for the broken glass in the apartment. In cross-
examination he speculated that the complainer must have tripped, as he noticed blood in the
house. It looked as if the appellant had hit her head.
The Charge
[8]
The sheriff gave the jury the standard directions on the need for corroboration, both
of the assault occurring and of the identification of the appellant as the assailant. In relation
to the evidence of the neighbour, he said the following:
"... you'll remember evidence from [the neighbour] that [the complainer] was on the
landing outside her door and that she made a statement in the presence and the
hearing of the accused, and there was evidence that [the neighbour] had said that
[the complainer] had said something to the effect that `you're really hurting' or `you
really hurt me this time', and that she was saying that to [the accused]. Well, what
[the complainer] said incriminated the accused. [The neighbour's] statement of what
[the complainer] said, however, isn't itself evidence against the accused because it's
4
hearsay evidence and, in any event, [the complainer] is already the principal source
of evidence and so, this came from the same person and the additional source to that
of her own evidence in court, but you can take into account that it's been said, but
not necessarily that it's a second source of evidence.
So, what you can do is you can take account of it in this context: you'll have to
consider whether the accused did or did not deny or disassociate himself from what
was said. That's because you can look at the accused's reaction or lack of reaction on
hearing what was said. So that is admissible evidence against him. It's for you to
decide, but if [the accused] made no response to what he heard, it would be open to
you to infer from his silence that he was impliedly admitting what was said about
him."
Submissions
[9]
The appellant maintained that the sheriff misdirected the jury in relation to the
evidence of the neighbour. He should have directed the jury that they had to determine:
(i) if what was heard by the appellant reasonably required comment; (ii) if what was said
was incriminating; and (iii) if there was a reaction or lack of reaction by the appellant. He
ought to have said that an implied admission could only arise if the circumstances were
such that the appellant was reasonably called on to repudiate it (Wilson v HM Advocate
[2017] HCJAC 52 at para [4]) and that, if they accepted the appellant's explanation, the
evidence could not be used against him. The sheriff ought to have directed the jury that the
lack of reaction was not evidence against the appellant if they determined that the
circumstances were such that there was no requirement for the appellant to contradict the
complainer's statement or there was no need for the appellant to make any comment. It
would only be in circumstances where the jury considered that the appellant required to
repudiate the comments which had been made that the jury could use his lack of reaction as
an admission. There would be no need to deny or react if only the complainer was present
(see also Rehman v HM Advocate 2014 SCCR 166 at paras 60-61; Douglas v Pirie 1999 SCCR
884 at 888).
5
[10]
The Crown cited the passage from Renton & Brown: Criminal Procedure (6th ed at
para 23-56) whereby an accused's reaction to a statement made by another person, or indeed
his failure to react when it was incriminating, was evidence against him in the same way as
a statement made by him. That had been approved in Buchan v HM Advocate 1993 SCCR
1076. The principle applied to any statement which, if true, was criminative of the accused
(McDonell v HM Advocate 1997 SCCR 760). If one person made a statement within the
hearing of a party who was accused, and that person did not say anything, the evidence of
the statement was competent against the accused (Lewis v Blair (1858) 3 Irv 16 at 28; Glover v
Tudhope 1986 SCCR 49; Wilson v HM Advocate (supra) at para 4; and Walker & Walker: The
Law of Evidence (4th ed) at paras 9.6.1-2). All that was required was that the statement was
made in the hearing of the accused, was incriminatory and the accused was in a position to
contradict it before silence or lack of reaction could be inferred as an admission. It was a
matter of fact for the jury to decide whether they were satisfied that such an inference could
be drawn. There was no authority to support the proposition that an accused person had to
know that the statement was likely to be overheard by others before responding to it.
[11]
The adequacy of the directions had to be seen in the context of the overall evidence
and the live issues in the case (Rehman v HM Advocate (supra) at paras 60-61). The only live
issue in relation to the statement was whether the jury accepted the evidence that the
appellant had not responded to the complainer's statement and had rejected his account,
which was that he had denied the accusation. Even without the implied admission, there
was a sufficiency of evidence. The complainer's injuries and distress corroborated the
occurrence of an assault. There was circumstantial evidence available to corroborate the
complainer's account that the appellant had been her attacker from the testimony of the
neighbour of what she had seen on the landing, including the presence of the appellant, and
6
the distribution of blood together with the appellant's post incident actings. No miscarriage
of justice had occurred.
Decision
[12]
In Buchan v HM Advocate 1993 SCCR 1076 it was accepted (LJC (Ross) delivering the
Opinion of the Court, at 1081) that the law was to be found in Lewis v Blair (1858) 3 Irv 16
and had been correctly stated in Renton & Brown: Criminal Procedure (5th ed) para 18-41A
[(6th ed) para 24-56]) as follows:
"A statement by another person, whether or not that person is a co-accused, made in
the present of an accused, is not in itself evidence against that accused. The
accused's reaction to that statement, or indeed his failure to react to it where it is
incriminative, is, however, evidence against him in the same way as a statement
made by him, silence in the face of accusation being capable of being construed as an
admission of guilt. The evidence of the other person's statement is therefore
admissible for the limited purpose of explaining the accused's reaction."
There is no requirement that the accused had to be aware that his lack of reaction might be
observed by others. It is no doubt correct to state as a generality that the implied admission
can only arise in circumstances in which an innocent accused could reasonably be expected
to repudiate the allegation (Wilson v HM Advocate [2017] HCJAC 52, Lord Malcolm,
delivering the Opinion of the Court, at para [4]). The circumstances here fit into that picture.
[13]
The live issue in this trial was not whether the circumstances were such as to give
rise to an implied admission. That was not the appellant's position. He maintained that he
had replied and repudiated the allegation. The complainer had made a clear accusation that
the appellant had assaulted her. The appellant, on the evidence of the neighbour, did not
deny this. In these circumstances the jury were entitled to hold that this was an implied
admission. That is essentially what the sheriff directed the jury. He did not require to give
any further directions given the extent of the live issue at trial. On this basis the appeal must
7
fail. As the sheriff said, it was for the jury to decide whether to infer from the appellant's
silence that he was impliedly admitting what had been said about him.
[14]
In any event, no miscarriage of justice can be said to have occurred. There was clear
evidence from the complainer that she had been assaulted and that it had been the appellant
who had assaulted her. The assault was adequately corroborated by the injuries which the
pursuer was suffering when observed by the neighbour on the landing. The complainer's
identification of the appellant as her assailant was adequately corroborated by the
circumstances spoken to by the neighbour, whereby, at or about 3.00am, the appellant was
standing over the complainer on the landing with blood trailing from there down to the
appellant's flat, where he was found soon after and alone by the police.
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