Man who pursued and intimidated two women in vehicle loses appeal against conviction

Alexander Burke Sr, who was charged alongside his son Alexander Burke Jr, argued that he could not be convicted on the basis of mutual corroboration as he was acquitted of the second charge which corroborated the charge of which he was convicted.

The appeal was heard in the Appeal Court of the High Court of Justiciary by Lord Menzies, Lord Malcolm, and Lord Pentland.

Repeated collisions 

The appellant appeared at Hamilton Sheriff Court for jury trial on an indictment containing five charges. Following the withdrawal of some of the charges, the jury was required to consider the second, fourth, and fifth of these.

The events of charges 2 and 4 took place on the same day in May 2019 in Motherwell. In respect of the second charge, the appellant and his son were said to have assaulted a man with spades and repeatedly struck and punched him to severe injury and permanent disfigurement.

In respect of the fourth charge, the appellant and his son were said to have pursued the complainers, Theresa and Mary Jean Townsley, in a car, repeatedly caused their vehicle to collide with the car the complainers were in, and then struck their car with a scythe while they were trapped inside the car, placing them in a state of fear and alarm.

The primary source of evidence in respect of charge 4 was given by Theresa Townsley, who also gave evidence about the events of charge 2. She was present when the events of charge 2 occurred and then panicked and left in her sister’s vehicle, at which point the appellant started pursuing her. The other evidence in respect of charge 4 was given by the complainer in charge 2, James Wilson, as well as CCTV evidence and the transcript of a 999 call by Ms Townsley.

The jury acquitted the appellant of charges 2 and 5 but convicted him of charge 4. They were directed that they were entitled to consider the application of the doctrine of mutual corroboration as between charges 2 and 4, which the fiscal depute also brought attention to in respect of charge 4 in his address to the jury.

The advocate depute submitted that, while the Crown had said that the rule could be applied, the sheriff did not suggest that mutual corroboration was the only basis on which the jury could find the appellant guilty.

Sufficiency of evidence 

The opinion of the court was delivered by Lord Menzies. He began by assessing the nature of the appeal, saying: “There is no attack in this appeal on the sheriff’s charge, and no suggestion that there was a misdirection. The appeal is founded on the assertion that in the absence of mutual corroboration there was insufficient evidence to corroborate the evidence of the single complainer in relation to charge 4. We therefore consider the issue of sufficiency of evidence on charge 4.”

Assessing the available evidence in respect of charge 4, he said: “We are satisfied that there was indeed a sufficiency of evidence to enable the jury to find the appellant guilty of charge 4 of this indictment. The evidence of the complainer Townsley was clear and compelling. The evidence of James Wilson as to the appellant’s aggressive demeanour and the appellant leaving the car park in his white tipper truck immediately before the vehicle containing Theresa Townsley and her sister also left the car park, and the sounds of a vehicle being “rammed” and the noise of plastic or metal being struck and a revving of engines was all consistent with Ms Townsley’s evidence.”

He continued: “The CCTV evidence was also consistent with Ms Townsley’s evidence to the effect that as she was driving from the car park to the Raith Interchange there was a white tipper truck in front of her and another immediately behind her. The photographs show damage to the vehicle in which Ms Townsley was situated which was also consistent with her evidence, and in particular that the smaller vehicle driven by the appellant kept coming up on their bonnet.”

Lord Menzies quoted the report made by the sheriff, which said: “Had I considered that the conviction of the appellant in charge 2 was essential for a conviction in charge 4 I would have given a directed verdict once the jury had returned their not proven in respect of charge 2. However, I consider there was still a basis for conviction having regard to the evidence of Mr Wilson and Theresa Townsley in respect of the incidents starting at the car park and leading down to the Raith Interchange sufficient for the jury to reach verdicts delivered by them.” The court considered that the sheriff was correct in this view.

For these reasons, the appeal was refused, a sufficiency of evidence for conviction having been established.