Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 16

HCA/2015/1447/XC

Lord Justice General

Lady Paton

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEAL AGAINST CONVICTION

by

SEAN LEES

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Connelly; Faculty Services Ltd (for Dunipace Brown, Cumbernauld)

Respondent: Prentice QC AD; the Crown Agent

10 February 2016

[1]        On 27 February 2015, at the Sheriff Court in Airdrie, the appellant was convicted of four charges involving two complainers.  Charges 2, 3 and 4 were assaults in 1998, 2006 and 2007 on one complainer, GD.  The remaining charge upon which the appellant was convicted was an assault in 2012 on GMcA.  The appellant was acquitted in respect of three other charges, 5, 6 and 7, also involving GMcA and of the first charge, involving a third complainer, GH.  The significant feature of the trial, for present purposes, was that GMcA was deceased.  In terms of section 259 of the Criminal Procedure (Scotland) Act 1995, the Crown relied upon hearsay evidence concerning a 999 recording, in which she made certain complaints and a subsequent signed statement, containing material noted by the police. 

[2]        The 999 call was proved to have been made by GMcA.  In it she is heard saying that she had a very aggressive boyfriend and needed to go home.  She was asking for help.  The appellant was also heard speaking on the call.  He was accusing the complainer of trashing his caravan.  The complainer is heard shouting, “He’s f...ing beating me up.   Please can you help me?”  She is heard crying.  Later, she says, “He’s just f...ing beaten me up”.  The subsequent written statement involved more detailed allegations of precisely how she had been assaulted by the appellant in his caravan.  The incident involved glass being broken.

[3]        As part of the evidence on charges 6 and 7, there was testimony in the nature of res gestae, about the complainer shouting, and indicating that certain things were happening to her at an address in Kilsyth which differed from those in the other charges. 

[4]        The sheriff gave the jury the standard directions on the application of mutual corroboration in relation to the evidence of GD and the hearsay evidence of the deceased, GMcA.  She also gave the jury particular directions on the care which had to be taken in relation to the hearsay evidence, because: it had not been given on oath in court; it had not been subject to cross-examination; the jury had not seen the maker of the statement; and the jury had not had an opportunity to assess the person as a witness in court. 

[5]        The first ground of appeal is that the sheriff erred in her directions on mutual corroboration and hearsay.  She had omitted to direct the jury in respect of the corroborative value of hearsay evidence.  This was “developed”, in the written Case and Argument, into a rather different point; that the hearsay evidence could not, as a matter of law, provide a sufficiency.  It could not supply mutual corroboration.  The point taken was basically that, in a mutual corroboration case, there required to be two witnesses each giving evidence in court in relation to respectively at least two charges. 

[6]        The second ground of appeal is that the sheriff misdirected the jury in respect of the evidence of res gestae on charges 6 and 7.  The contention was that, because the sheriff had stated that the jury could use this evidence in “the case”, they might have used it in some way to prove the different charges on which the appellant was eventually convicted. 

[7]        In response, the Crown explained that the evidence in relation to the deceased consisted not only of the hearsay of the 999 call and the written statement, but also other testimony, about the state of the complainer and the caravan, given by the police officers.  There was evidence of the upset and agitation of the complainer and the existence of broken glass in the caravan.  So far as the evidence on charges 6 and 7 was concerned, it would be speculation to suppose that the jury would have used the evidence of res gestae in connection with these charges to prove entirely unrelated charges. 

[8]        For the doctrine of mutual corroboration to apply, there require to be at least two sources of evidence, each relating to two or more separate incidents in a course of conduct and to the accused’s participation of it.  There is no requirement that the two sources of evidence be direct testimony from eye-witnesses.  It is entirely legitimate to prove a case using, for example, one witness speaking to one incident and the hearsay evidence of a deceased speaking to a second incident.  The hearsay, once deemed admissible, becomes the equivalent of the testimony of the speaker and can be used as proof of fact and hence corroboration.

[9]        The court agrees that it is entirely speculative to suggest that the jury would have used the evidence of the res gestae relative to different charges with a different locus to show that the appellant had committed unrelated offences on the indictment.

[10]      In these circumstances, this appeal must be refused.