East Kilbride man who assaulted partner with glass bottle loses appeal against conviction

About this case:

• Citation:
  [2020] HCJAC 47
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Gordon Campbell was convicted of a single charge of assault to severe injury and permanent disfigurement, which was aggravated in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. He argued that the trial sheriff had misdirected the jury in respect of his response to an accusation made by the complainer on the night which was heard by a neighbour.

The appeal was heard in the High Court of Justiciary by the Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull. A Ogg, solicitor advocate, appeared for the appellant and Edwards QC for the Crown.

“You’ve really hurt me”

It was the evidence of the complainer that in the early hours on 26 December 2018 she was arguing and drinking with the appellant in his flat in East Kilbride. She turned away from the appellant to go to the bathroom and felt a blow to the back of her head and glass smashing. No one else had been in the flat with them at the time.

The complainer sought help from other occupants of the building, one of whom let her in and phoned an ambulance and the police. The appellant caught up with the complainer, at which point she said to him “you’ve really hurt me this time”, a statement to which the neighbour gave evidence that the appellant offered no response. The police arrived at the building at 3:30am to find the complainer covered in blood, at which time they arrested the appellant.

The appellant denied hitting the complainer, and his position during cross-examination was that she must have tripped on the way to the bathroom and hit her head. He had no explanation for the broken glass that was found in the apartment and stated that he had replied to the complainer’s statement, although no other evidence supported this proposition.

In his charge to the jury, the trial sheriff gave the standard directions on corroboration, and stated that it would be open to the jury to infer that the appellant had impliedly admitted his assault by not replying to the complainer’s statement that he had hurt her if it considered that the appellant had not made a response.

It was submitted for the appellant that the sheriff ought to have directed the jury that the lack of reaction was not evidence against him if they determined that there was no requirement for him to contradict the complainer’s statement. It would only be in circumstances where the jury considered the appellant required to repudiate the comments that his lack of reaction could be used as an admission.

Clear accusation

Delivering the opinion of the court, Lord Carloway cited the relevant law as stated in Renton & Brown’s Criminal Procedure 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.”

On this point, Lord Carloway continued: “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. The circumstances here fit into that picture.”

Assessing the appellant’s position at trial, Lord Carloway said: “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 concluded: “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 complainer 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.”

The appeal against conviction was therefore refused.