Man convicted of assaulting six-year-old son loses appeal against conviction

About this case:

• Citation:
  [2022] HCJAC 28
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

It was argued by the appellant, WM, that the trial judge had incorrectly directed the jury that they could convict him of assaulting his son, A, without mutually corroborating evidence from the second charge.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Malcolm and Lord Matthews. W Hay, advocate, appeared for the appellant and A Edwards QC for the Crown.

Generalised comments

The appellant was convicted following trial of two charges of assault. The first related to his son, A, then aged 6, whom he had repeatedly struck over the head and pulled by the hair over a 5-month period. The second charge was of assaulting another boy, B, over the first 4 months of his life and failing to provide and seek appropriate medical aid for him. He had cohabited with the mother of the children, JG, and maintained that he was also B’s father, however there was some doubt surrounding this. 

Evidence in respect of the first charge came from a Joint Investigative Interview recording of A made when he was 6, and cross-examination on commission at the time of trial, when he was aged 14. During cross-examination he stated that the allegations in the JII were not false and that he was told to make them up by his grandmother.  

There was additional corroborative evidence in respect of charge 1 in the form of comments made by the appellant in telephone calls to JG during his period of remand, during which she told him: “well stop hittin’ them”. The jury were directed that in respect of each charge they could convict on the basis of the evidence led on those charges alone, treating the various statements made by the appellant as admissions. As an alternative, they were also told that they could convict on the basis of mutual corroboration. 

It was submitted that the responses made by the appellant in the calls could not be properly regarded as an unequivocal admission in relation to the conduct libelled in charge 1. The comments were too generalised to be capable of being construed as such, and the appellant had not admitted to any clear or specific allegation. Esto the Crown’s position that his failure to contradict JG’s comments was significant was correct, the trial judge did not direct the jury on how to assess his lack of response. 

Entirely open 

Delivering the opinion of the court, Lady Dorrian observed generally: “It is well established that it is not only clear and unequivocal admissions which have evidential value. The same applies where the significance of the evidence is that an appellant had failed to respond or react to an allegation in circumstances where that failure could be regarded as criminative. However, it is important to distinguish the case where such evidence is relied upon as the primary evidence in a circumstantial case, and one where it is relied upon as corroboration of other evidence which constitutes the primary evidence.” 

She continued: “Everything depends on the context. However the present case is one in which there was clear primary evidence, should the jury choose to accept it. It was entirely open to the jury to accept the evidence in chief as the truth and to reject the evidence given on commission. The point which then arises is whether that evidence was sufficiently corroborated.” 

Analysing the content of the calls, Lady Dorrian said: “The statement made by JG to the appellant was made in the course of a conversation in which the appellant refers to disciplining the children to such an extent that JG required to intervene to stop him. This also accords with the evidence of A regarding JG, that ‘She tells ma dad to stop it.’ It would be open to the jury to treat the relevant parts of the conversation as criminative of the appellant having hit the children, including A.” 

She went on to say: “It is correct to say that the trial judge did not give specific directions in relation to the failure of the appellant to respond to what was said by JG. However that was not the real issue: the real issue, as his directions made clear, was whether the conversation provided corroborative support for the primary evidence.” 

Lady Dorrian concluded: “The trial judge directed the jury that the content of this, including to some extent what was said by JG, could provide independent corroboration. The jury were directed that it was a matter for them to determine the significance of what was said in the phone calls, and that the conversations had to be taken as a whole. The evidence of the conversation as a whole was clearly capable of providing support for the primary evidence in the case.” 

The appeal was therefore refused.