Hairdresser who assaulted dementia patient in care home loses appeal against conviction

Elaine Murphy, who was convicted of the assault in Perth Sheriff Court in September 2024, argued that the trial sheriff erred in repelling her submission of no case to answer, or alternatively erred in convicting her on the evidence. The Crown position was that the offence could be corroborated by observations of her interaction with the complainer by care home staff and an inference could be drawn of a confrontation.

The appeal was heard by Sheriff Principal Gillian Wade KC and Appeal Sheriffs Wendy Sheehan and Brian Mohan, who delivered the opinion of the court. Collins, solicitor advocate, appeared for the appellant and Harvey AD for the Crown.

“I hit him back”

On 15 March 2023 the appellant attended a care home to cut various residents’ hair, including the complainer JM. JM suffered from dementia and his behaviour was known to be challenging, including lashing out at people and banging his mug on the table. The appellant was heard by care home staff member MH telling JM not to lash out at her again at around 11:30am.

At around 12:30pm that day, the appellant attended at the office of CS to be paid for her hairdressing services, with MH also present. She told CS that she had problems with JM, and in the course of conversation said, “he hit me, so I hit him back”. CS asked if the appellant was joking, and she responded she was not while making a gesture of a sideways punch or jab. When she was cautioned and interviewed by police on 31 March 2023, she told them that she had put her hands up in self-defence when JM punched her a second time.

Upon conclusion of the Crown case, the appellant submitted there was no case to answer due to the lack of any eyewitness testimony or evidence from JM, who did not remember the incident. The sheriff held that there was a case, based on CS and MH’s evidence of an unequivocal and uninvited admission by her that she had hit JM. After considering the evidence, including evidence directly from the appellant, he convicted her of assault.

For the appellant it was submitted that the admission to CS and MH was one source of evidence, but nothing was available to corroborate it. Neither her gesture during that conversation nor her statement following caution and charge was capable of doing so. MH’s evidence of what she heard did not suggest any aggressive behaviour by her at that point.

Mutuality in exchange

In the court’s decision, Appeal Sheriff Mohan began by saying: “This was an unusual case. The ‘complainer’ JM was an elderly man with dementia who resided in a care home; he did not report an assault and did not give evidence in the trial. There was no eyewitness or recorded evidence of an assault, no injury or distress attributed to the allegation, and no de recenti statement to be considered.”

He continued: “[The appellant’s] comments were capable of being regarded by a fact-finder as an admission of an assault. However, no matter how many people heard the admission, it remained only one source of evidence. The sheriff took the view that, as an admission was made by the appellant to two care workers who both gave evidence to that effect, that represented two sources of evidence. In so deciding, the sheriff erred.”

Considering whether any of the other evidence could act in corroboration, Appeal Sheriff Mohan said: “The context here is important. The complainer was an elderly resident in a care home and had dementia. MH told the court that he shouted at both her and the appellant when she checked in his room, having been alerted by his shouting. So the findings that JM banged the table; shouted ‘Go away’, tried to punch the appellant and spat at her were not, in the context of this case, facts which were capable of supporting an allegation of assault by the appellant on him.”

He added: “Her comments to the police described an assault on her; plainly that part of her reply cannot be taken as an admission of an assault by her, since her description was that JM punched her, and she ‘put [her] hands up in self-defence’. However, her comment ‘after the first punch I asked [JM] not to punch me again as it was sore.’ supports the evidence of MH about there having been an altercation i.e. that there was some mutuality in the exchange.”

Appeal Sheriff Mohan concluded: “There was corroborated evidence of an assault. The first piece of evidence was the admission by the appellant made to CS and MH that she had hit the complainer. Corroboration came from the separate evidence of an altercation. That evidence came from, firstly, MH’s observations of the interaction between the appellant and the complainer and, secondly, the appellant’s own comments to the police in reply to caution and charge. Taken together, these pieces of evidence amounted to a sufficiency.”

Having determined that the sheriff was correct to repel the no case to answer submission and entitled to convict on the evidence, the court refused the appeal.