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[2017] HCJAC 52


Lord Menzies

Lord Malcolm

Lord Glennie


delivered by LORD MALCOLM









Appellant:  M Anderson;  A T Gilbertsons

Respondent:  J Keegan QC (sol adv);  Crown Agents

21 June 2017

[1]        The appellant was convicted by verdict of a jury of assaulting a fellow prisoner to his severe injury.  The circumstances were as follows.  The complainer was washing dishes in the prison kitchen when a kettle of boiling water was thrown over his head by a fellow prisoner.  At trial the complainer made a clear and positive identification of the appellant as his attacker.  A few seconds after the attack they were found by a prisoner officer standing in a corridor close to where the incident occurred.  Shortly thereafter they were joined by another officer.  There were other prisoners in the kitchen area, but they were more distant to the events in question. 

[2]        The only live ground of appeal concerns the evidence from the first prison officer that the complainer was pointing at the appellant and shouting that he had thrown boiling water on him.  It was obvious that the complainer had suffered severe burning injuries to the left side of his face and was in a distressed state.  The appellant said and did nothing in response to the accusation.  Contrary to the terms of the ground of appeal, it is now accepted that the evidence as to the appellant’s non‑reaction was admissible, however the contention is that the sheriff’s directions on this part of the evidence were deficient.  The relevant part of the charge to the jury is in the following terms:

“According to the prison officer the complainer pointed at the accused and said that he, the accused, had thrown boiling water at him.  I should say at once, assuming you accept the officer’s evidence, this statement made by the complainer is not corroboration.  What a witness says in evidence cannot be corroborated by what the witness said on an earlier occasion.  At best his statement at the time demonstrates that he has maintained the same account since the very beginning.  This could be a factor in assessing his credibility.  However, ladies and gentleman, I should say that the accused’s failure to react to the statement, his silence in the face of the accusation being made against him, is capable of being construed as an admission of guilt and is therefore capable of supplying corroboration.  It is for you to say whether or not you consider the accused’s silence as an admission of guilt, and in deciding that question you will obviously bear in mind the submissions of the procurator fiscal and the agent for the accused.”


[3]        On behalf of the appellant it was submitted that the sheriff should have directed the jury that each case turns upon its own facts and circumstances.  In particular he should have said that the appellant’s non‑reaction occurred in a prison environment with other prisoners nearby.  It was suggested that the appellant would be subject to prison discipline and would be fearful of making what was described as a “fraught situation” worse.  He would not wish to state that someone else was responsible as he would be treated as a “grass”, even if he did not name another prisoner.  The sheriff should have drawn attention to these matters, and told the jury to proceed with extreme caution before taking the view that the silence of the appellant could corroborate the evidence of the complainer. 

[4]        We consider that there is no merit in these submissions.  It is well established that it is a question of fact in each case as to whether an inference of guilt may legitimately be drawn from an accused’s silence in the face of a statement such as that of the complainer, and that an implied admission can arise only if the circumstances were such that the accused was reasonably called on to repudiate it.  Having regard to the salient facts of the case, we consider that the sheriff’s directions, though brief, were adequate.  The jury heard evidence from the complainer and the two prisoner officers.  (The appellant did not give evidence.)  The jury would be well aware that the complainer and the appellant were serving prisoners and that other prisoners were in the vicinity.  Its members would exercise their collective common sense in deciding whether the appellant’s non‑reaction to the accusation was incriminating.  In any event, we note that there was no exploration in the evidence of any of the matters desiderated now on behalf of the appellant, nor in the Crown’s speech.  If comments along the lines suggested were of particular importance, we would have expected to see them in the transcript of the defence speech, but there are none.  In these circumstances we see no reason to criticise the sheriff for not addressing them.  In our view it was neither necessary nor appropriate for the jury to be urged to exercise extreme caution, nor was there any overriding need for the other suggested directions. 

[5]        Counsel for the appellant sought to pray in aid the evidence that the prison officer told the appellant to stay where he was.  This was said to be a possible explanation for his silence.  There was no mention of this in the appeal document, nor in the written submission.  It was raised for the first time in oral argument today.  Suffice to say we see no basis for it, nor any merit in it. 

[6]        We also note that the Crown case did not depend upon this part of the evidence.  Even without it there was ample corroboration of the complainer’s testimony from the evidence of the two prison officers who found the appellant close to the scene of the incident very shortly after it, when, according to the evidence, he had no particular reason to be there.  There has been no miscarriage of justice and this appeal falls to be refused.