High Court refuses appeal against man’s conviction for assaulting blind partner’s young son

About this case:

• Citation:
  [2024] HCJAC 10
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Appellant JH argued that the trial judge had misdirected the jury in relation to corroboration of one of a series of charges of physical assaults and thus had not provided them with an appropriate route to verdict.

The appeal was heard by the Lord Justice General, Lord Carloway, together with Lord Boyd of Duncansby and Lord Beckett. Neilson, advocate, appeared for the appellant and A Prentice KC, advocate depute, for the Crown.

Omitted to explain

The appellant was convicted of, inter alia, assaulting his partner’s son, S at addresses in Glasgow and Stirling between 1999 and 2001 by striking him on the head, punching him, extinguishing cigarettes on his body, and holding his head underwater. S, who was aged between 3 and 5 at the time of the offence, gave direct evidence in relation to this charge.

Direct corroboration was provided by S’s brother, B, and by their mother, AG, who was blind. AG gave evidence that the appellant had thrown S to the pavement at the age of 4 after he wet himself in a supermarket and she had heard other occasion when he had smacked S. Mutual corroboration came from the other three charges of physical assault of which the appellant was convicted and two charges of sexual offending.

In his final directions to the jury, the trial judge clarified that the physical assaults could only be corroborated by evidence of another physical assault and not by reference to the sexual offending. He continued by stating that if they accepted the evidence of S on charge 1, the principle could apply to the remaining assault charges, but he did not explicitly say how evidence of the latter charges might supply corroboration of charge 1.

It was submitted that the trial judge erred in law by omitting to explain either of the two different ways in which charge 1 could be proved by corroborated evidence. It was not adequately explained how mutual corroboration could operate within the confines of that charge, nor how the other charges could be used to prove charge 1.

Adequately corroborated

Delivering the opinion of the court, Lord Carloway began: “The trial judge’s direction, at least in relation to charge (1), that ‘so long as a part of a charge is corroborated then the remainder of the charge can be proved by the evidence of a single witness’, was wrong. Whether corroboration of part of a charge is sufficient depends upon the nature of the charge. If it libels a single assault, corroboration of part of the assault may be sufficient, but where what is libelled is an omnibus charge which includes different assaults, separated in time, each assault requires to be corroborated.”

He continued: “There would have been little difficulty in the jury holding that the assaults on S were part of the requisite course of conduct and thus adequately corroborated by the testimony of B and AG about seeing and hearing different assaults on S. The problem is that the jury ought to have been directed accordingly on the need for that course of conduct to be established.”

Assessing whether the misdirection resulted in a miscarriage of justice, Lord Carloway said: “The court is satisfied that no miscarriage arises. First, the jury were given general written and oral directions on mutual corroboration. The trial judge had identified charges (1), (3) (5) and (6) as a group of assault charges. Secondly, the jury must have accepted the testimony of each of the complainers, including S. They accepted, from their verdicts on charges (3), (5) and (6), that the requisite course of conduct had been made out.”

He concluded: “They must inevitably have considered that the assaults on charge (1) formed part of that course. They had been directed properly on how to apply mutual corroboration to the evidence on different charges, albeit not expressly in relation to charge (1). That being so, the jury had sufficient directions by way of a route to a guilty verdict on all charges.”

The appeal against conviction was therefore refused.