Note Of Appeal Against Conviction By Angus Mcaskill Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord Justice General,Lord Malcolm |
| Neutral Citation | [2016] HCJAC 64 |
| Published date | 03 August 2016 |
| Year | 2016 |
| Docket Number | HCA/2016 |
| Court | High Court of Justiciary |
| Date | 03 August 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 64
HCA/2016/36/XC
Lord Justice General
Lady Paton
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTE OF APPEAL AGAINST CONVICTION
by
ANGUS McASKILL
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Allan QC, Dow; Paterson Bell (for Tod & Mitchell, Paisley)
Respondent: Farquharson AD; the Crown Agent
3 August 2016
Introduction
[1] On 11 December 2015, at the High Court in Glasgow, the appellant was convicted of nine out of seventeen charges (cc 1, 2, 4, 5, 6, 9, 10, 11 and 13). The first five related to his partner JC, whom he had met in 1979 when they were both in their late teens. The second group related to LMcD, whom the appellant had married in 1996 when she was aged 17. The trial judge acquitted the appellant of two further charges on no case to answer submissions; one involving a baby-sitter (c 8) and the other the abduction of LMcD and her son (c 12). The Crown withdrew one charge of assault and attempted rape of JC (c 7). The jury acquitted him of a further assault and rape of JC (c 3). The appellant was acquitted of four further charges (14-17) relating to another partner, KR, whom he had met in 2000 when she was 21. One charge of breach of the peace (c 17) was withdrawn by the Crown. Another of abduction in a car (c 16) was the subject of a successful no case to answer submission. The jury acquitted the appellant on the remaining two of, respectively, assault and indecent assault (cc 14 and 15).
[2] The trial judge imposed a sentence of 3 years in respect of the assault convictions (cc 1, 6 and 13) and a consecutive sentence of 5 years in cumulo in respect of the sexual offences (cc 2, 4, 5, 9, 10 and 11).
[3] The appeal raises a number of different matters. The first and second grounds relate to evidence which was given by the complainer KR about an offence not libelled; the third to seventh grounds all relate either to sufficiency of evidence in the context of mutual corroboration or the directions given in that regard; and the final ground is a contention that the trial judge misdirected the jury in respect of a defence witness.
The evidence
Charges 1, 2, 4, 5 and 6 (JC)
[4] Charge 1 libelled repeated physical assaults over the years 1981 to 1992 at various addresses, all involving the appellant’s partner JC. The evidence was much more restricted in terms of the dates of the assaults. All but one occurred in 1981. The exception was an incident immediately before the events libelled in charge 6 when, after an argument, the appellant threatened to burn down the complainer’s house. This was in 1992. After the complainer became pregnant in 1981, the appellant became resentful. Whilst walking in the public street towards the complainer’s home, the appellant suddenly attacked her, pulling her hair, pushing her to the ground and punching her back. On a later occasion in 1981, he attacked her in their home following upon a complaint about the quality of his breakfast. This involved him seizing the complainer’s hair and pushing her face fully submerged into a sink, repeatedly. The libel included the danger of her life. The complainer gave other examples of being abused in the street by the appellant, with him pushing and pulling her and calling her names. Thereafter, although the appellant continued to be obsessively jealous of the complainer, no more physical assaults took place until the incident preceding charge 6.
[5] Charges 2, 4 and 5 all related to sexual offences, ranging from indecent assault to rape. The libel in respect of the rapes (c 2) dated from 1982 to 1995 and involved, principally, the appellant having sexual intercourse with the complainer initially whilst she was asleep and continuing upon her waking. The libel of indecent assaults (c 4) was from 1989 to 1993 and was in the same general context of behaviour starting whilst the complainer was asleep. One charge (c 5) was an assault with intent to rape during 1990 to 1993. This incident occurred after the appellant had gone looking for the complainer, who had gone out with her sister and some girl friends. When she returned home with the appellant, he had accused her of having sexual intercourse with another person and then forced himself on top of her. She was able to fight him off.
[6] The final charge (c 6) occurred in 1992 when the complainer and the appellant had had an argument about the amount of time the complainer was spending at her parents’ home, whilst her father was dying. She told the appellant to leave. The complainer had taken the threats to burn down her house (supra) seriously and had set off, on foot, to her parents’ home. En route, the appellant drove past, shouting abuse at her and threatening to kill her. He was laughing like a maniac. He turned the car and drove towards the complainer and the two youngest children, forcing her to take the buggy and the children into a close, whilst he drove onto the pavement, before suddenly turning and driving away.
[7] The appellant and the complainer separated finally in the mid-1990s. Although over the years the complainer had told her sisters about what had been going on, it was only in 2014 that she took steps to report the abuse to the police.
Charges 9, 10, 11 and 13 (LMcD)
[8] The appellant and his wife LMcD were in a relationship for only about 18 months. The relationship started to go wrong fairly quickly as a result of the appellant’s jealousy. He objected to the complainer going out and at times locked her in the house. Charge 9 libelled various rapes occurring between May and December 1997. These involved the appellant having intercourse with the complainer whilst she was still asleep and continuing to do so after she had woken up and objected. Charge 10 involved indecent assaults in similar circumstances and charge 11 libelled the penetration of her vagina with various household objects. Charge 13 was an incident which occurred after the appellant had accused the complainer of having a relationship with her brother-in-law. On their way home in a car, he had threatened to drive off the road over a bridge and kill the complainer’s young son. His driving was erratic. The complainer was crying and trying to pacify her son, who was screaming and vomiting. Soon after this incident, the relationship came to an end.
Charges 14 to 17 (KR)
[9] As already narrated, the appellant was acquitted one way or another of charges involving KR. The appellant’s relationship with her, which began in about 2000, had also started reasonably well, but he had become jealous and possessive. According to the complainer, after a few months he began hitting her. One incident involved the appellant dragging her by the arm into his lorry. In the course of exploring this incident, the advocate depute asked her “Did he do anything else?” The complainer answered that he had had sex with her whilst she was asleep; a matter for which there was no libel. An objection was taken and an application made to desert the diet pro loco et tempore. The difficulty with the complainer’s evidence on these charges was her acknowledgement of a dependence on alcohol and her consequent lack of memory. She did speak to various occasions when she had woken up and found her underwear to be inside out or the wrong way round (c 15). She had not dressed in that way.
[10] During the course of the investigation, the appellant was interviewed. Part of the recording was played to the jury. He denied any criminal conduct. His then current partner, CH, with whom he had been in a relationship for some 12 years, was interviewed. A suggestion was made that the police had attempted to obtain evidence from her which she had not been willing to give. When she gave evidence, she described her relationship with the appellant as good. There was neither physical nor sexual violence.
The trial judge’s approach
[11] The trial judge refused the motion to desert the diet on the basis that the matter could be dealt with by an appropriate direction. In due course he directed the jury that the only allegation, and the only evidence, of conduct of a sexual nature, in relation to KR was that concerning her underwear (c 15 supra). He specifically directed them that, in so far as the sexual offences were concerned, if the jury did not believe the evidence of both LMcD and JC, that would be the end of these charges, because there was nothing in KR’s evidence that could corroborate the allegations of rape, indecent assault or related matters involving LMcD or JC.
[12] A submission of no case to answer had been made to the effect that the violence libelled in charge 1, involving JC, could not corroborate, or be corroborated by, the violence libelled in respect of KR on charge 14, because of the time gap of some 20 years. The trial judge took the view that, at that stage, it could not be said that neither offence was capable of being corroborated. In addition to the significant similarities between the events libelled in both charges, there was the evidence of other relevant acts of physical violence libelled in charges 6 and 13. Charge 6 could not provide corroboration for charge 1, since both were reliant upon the evidence of JC. However, against a background of jealous and possessive behaviour and displays of temper by the appellant, the conduct spoken to in charge 6 could be viewed as another example of the sort of conduct libelled in charge 1. The events of charge 6 occurred in late 1992, less than 8 years before the first violence against KR in charge 14 (2000) and less than 5 years before the violent driving involving LMcD in charge 13. There was violence involved in the charge involving penetrating LMcD’s vagina with objects in 1997 (c 11), which could also be seen as the same course of criminal conduct as the events in charges 1 and 6.
[13] The trial judge was of the view that the incidents spoken...
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