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APPEAL AGAINST CONVICTION BY JOHN DEWAR AGAINST HER MAJESTY'S ADVOCATE


Submitted: 15 March 2017

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 31

HCA/2016/000373/XC

Lord Brodie

Lady Clark of Calton

Lord Turnbull

OPINION OF THE COURT

delivered by LORD TURNBULL

in

APPEAL AGAINST CONVICTION

by

JOHN DEWAR

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Gilfedder;  Gilfedder McInnes

Respondent:  Edwards QC;  Crown Agent

15 March 2017

[1]        The appellant John Dewar is 31 years old.  On 17 May 2016, at the Sheriff Court in Falkirk, he was convicted on indictment of a charge of assault.  In returning the verdict the jury intimated that certain aspects of the narrative of the charge were to be deleted.  The result of the deletions was that the appellant was convicted of an offence in the following terms:

“On 5 August 2015 at 63 McKinley Crescent, Alloa [he] did assault KM and did grab her by the throat, push her against a wall, all to her injury.”

The charge was aggravated by the appellant being on bail at the time of the offence.

[2]        The appellant was granted leave to appeal against conviction on the ground provided for by section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, namely that a miscarriage of justice had occurred by reason of the jury having returned a verdict which no reasonable jury, properly directed, could have returned.

[3]        The locus mentioned in the charge was the home address of the complainer.  The appellant was an acquaintance of hers.  In his report to this court, the sheriff informed us that the complainer’s evidence was rather unsatisfactory and that she claimed not to remember much about the incident.

[4]        A transcript of the complainer’s evidence was provided to the court.  The transcript shows that in the course of her testimony the complainer was referred to a statement which she gave to police officers on 5 August 2015 at her home.  For the most part, she acknowledged that it accurately recorded what she had said to the officers and that what she had told them in those passages was true.  However, in relation to the passage in the statement where she was noted to have said: “John grabbed me with his hands around my neck and then pushed me into the wall”, the complainer’s evidence was that she could not really remember that part.

[5]        Despite the procurator fiscal having embarked upon an exercise of seeking to have the witness adopt the content of the statement, she did not elicit evidence from the witness that she accepted having used those words, or that she was telling the police the truth in the course of giving this particular information to the police.

[6]        In his report, the sheriff said that the complainer did not adopt this passage of her statement.  Despite this, the passage just quoted, which the sheriff said was not adopted, reflected the only part of the narrative of the charge which the jury found established. 

[7]        The remaining evidence of importance which the Crown relied upon came from a neighbour, Mr Davis, and from the police officers who attended at the complainer’s home.  Mr Davis gave evidence of seeing the appellant trying to gain access to the complainer’s house.  His evidence was that he saw her open the door and saw the appellant force his way in and raise his hand to her face and neck before closing the door behind him.  Although he was unable to see anything of what took place within the house, he explained that he could hear screaming or yelping once the door had been closed.  He saw the appellant leave around 15 minutes later. The two police officers who attended in response to the complainer’s report spoke to seeing her in a distressed condition and shaking.  Each officer spoke to seeing a red mark or reddening around the area of the complainer’s throat.

[8]        The submissions for the appellant in support of the ground of appeal were predicated upon the poor quality of the testimony given by the complainer.  Mr Gilfedder, who appeared for the appellant, drew our attention to page 18 of the transcript of the complainer’s evidence where she was referred by the procurator fiscal to the part of her police statement containing an account of the appellant grabbing her by the neck.  He submitted that a reading of the transcript demonstrated that the sheriff had been correct in saying that this part of the statement was not adopted.  Mr Gilfedder submitted that the witness had not accepted giving this information to the police and had not, in any event, been asked whether what was recorded at this part of the statement was true.  He submitted that these were the twin essential components of adoption for the purposes of section 260 of the 1995 Act.  Reliance was placed on what had been said in the cases of Rehman v HM Advocate 2014 SCCR 166 and Matulewicz v HM Advocate reported at 2014 SCCR 154.

[9]        It was further submitted that although the complainer had adopted various other passages of her statement to the police, the reference to each such passage in her statement had been deleted by the jury in returning their verdict.  Accordingly, it was to be assumed that the jury had rejected such evidence as the complainer was able to give about what the appellant had done.  Mr Gilfedder submitted that if the complainer’s evidence had been rejected, then there was no other direct evidence of the commission of an assault.  The evidence as given by Mr Davis and the two police officers was not sufficient to provide corroboration of an assault.  Mr Davis, it was said, did not speak to any physical contact.  Since on this analysis there was an insufficiency of evidence to establish the commission of the crime, no reasonable jury, properly directed, could have returned the verdict in question.

 

The Submissions for the Crown

[10]      The advocate depute invited us to conclude that, contrary to the sheriff’s view, the evidence given by the complainer was sufficient to entitle the jury to hold that she had adopted the relevant part of her statement.  On that basis she submitted that the verdict returned reflected the evidence given.  In the alternative, the advocate depute submitted that even without the passage to which attention had been drawn being adopted, there was sufficient evidence in the remaining testimony led by the Crown.  In particular, the advocate depute placed reliance on what Mr Davis had seen and heard and on what the police officers saw concerning the complainer’s condition and the redness and distress which they observed.

 

Discussion
[11]      When the complainer gave her evidence the procurator fiscal sought to refer her to the content of her police statement under the authority of section 260 of the 1995 Act.  Reading it shortly, that section provides that any prior statement contained within a document shall be admissible as evidence if the witness, in the course of giving evidence, indicates that the statement was made by him and that he adopts it as his evidence.  In the present appeal we do not find it necessary to determine the question of whether the evidence given by the complainer meets that statutory test.  We are content to proceed upon the basis of the view formed by the sheriff, that the witness did not adopt the relevant part of her statement.  It is on that basis that we will consider the submission that no reasonable jury, properly directed, could have returned the verdict arrived at in this case.

[12]      In the recent case of Williamson v Her Majesty’s Advocate 2016 HCJAC 115, the Lord Justice General explained the approach which the court must take in determining an appeal of this sort.  What he said was this:

“In Geddes v Her Majesty’s Advocate 2005 JC 229,the test for the review of a jury’s verdict on the ground of unreasonableness in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 was described as well settled.  It involves an objective exercise in which, for an appellant to succeed, the court must be able to hold that no reasonable jury could have returned a guilty verdict.  Where there is a sufficiency of evidence, it is only in the most exceptional of circumstances that an appeal on this ground will succeed.   The court requires to carry out its assessment with the benefit of its collective knowledge and experience.  An appellant requires to demonstrate that there was no credible and reliable evidence which would have entitled the jury to return a guilty verdict.”

 

[13]      In our opinion, the test outlined by the Lord Justice General has not been met in the present appellant’s case.  The complainer gave evidence in general terms of being subjected to criminal conduct at the hands of the appellant.  She was distressed and upset when the police arrived and was seen to have a red mark around the area of her throat.  Mr Davis spoke to seeing the appellant force his way into the property with his hand raising towards the complainer’s face and neck.  He then heard sounds consistent with her being assaulted coming from inside the property.  The evidence of what Mr Davis saw and heard would constitute one source of evidence to establish the crime of assault.  The red mark and the complainer’s distress seen shortly thereafter could provide corroboration for his evidence of the commission of an assault.  The totality of that evidence was capable of establishing by inference that the modus of the assault was grabbing the complainer by the throat.  The evidence of the complainer and of Mr Davis established that the appellant was the only other person at the locus and therefore that he must have been responsible for committing the assault.  The evidence which we have just outlined would provide a sufficiency of evidence entitling a guilty verdict to be returned.  Once that is established there is no basis for saying that the verdict was one which no reasonable jury could have returned just because the complainer’s evidence was unsatisfactory.  As it happens, in any event, she spoke in general terms of being attacked by the appellant.  The deletions decided upon by the jury do not have to mean that they rejected the complainer’s testimony.  They may just mean that the jury were not prepared to hold themselves satisfied on any particular part of the charge which they did not consider was supported by independent testimony.

[14]      In these circumstances the appeal against conviction must be refused.