Appeal Against Conviction By Patrick O'neill Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Menzies,Lord Justice Clerk |
| Neutral Citation | [2016] HCJAC 86 |
| Court | High Court of Justiciary |
| Date | 07 October 2016 |
| Docket Number | HCA/2016 |
| Published date | 07 October 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 86
HCA/2016/000065/XC
Lord Justice Clerk
Lord Menzies
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
PATRICK O’NEILL
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Moggach, Faculty Services Limited (for Gavin Bain & Co, Aberdeen)
Respondent: A Edwards, QC, AD; Crown Agent
7 October 2016
[1] This appeal relates to a conviction on a charge of assault with intent to rape. The appellant had also been found guilty of simple assault, and being concerned in the supply of cannabis. He had pled guilty to a statutory breach of the peace. The grounds of appeal are (i) that the sheriff erred in failing to direct the jury in relation to an inconsistent prior statement by the complainer to the police, which had been the basis for a significant part of the cross-examination, and referred to in the defence speech; and (ii) that in directing the jury in relation to distress, the sheriff had erred in failing to advise them that the distress required to be spontaneous, genuine and arising directly from the conduct complained of.
[2] The evidence of the complainer was that she had been in the company of her boyfriend and the appellant in the course of the evening, latterly at her own flat; they had all been drinking, and her boyfriend had vomited over the carpet; she argued with him, and asked him to leave, meaning leave the room, not the flat; he however misunderstood and left the flat, but remained outside causing a commotion; the complainer’s mother arrived and entered the flat; the appellant seemed annoyed at the boyfriend, wanting to go outside and speak to him; the complainer stopped him from doing so; the appellant assaulted her by putting his hands to her face and squeezing her cheeks together and pushing her head back; he then slapped her on the face with some force; at that point the complainer’s mother left; although there had been no discussion to this effect, the complainer thought her mother would contact the police; thereafter the events narrated in the charge occurred; the appellant admitted most of these, stating that he had been “chancing his arm” with the complainer. She had been looking out of the window at her mother leaving. The appellant was on the same sofa. When asked if she wanted the events to happen she said “no”. She repeatedly told the appellant that she was with her boyfriend, and “This wasn’t happening between me and him”. The complainer gave evidence that when her mother first arrived the appellant had made inappropriate remarks about her mother, and put his arm around her. The complainer told him to get off her mother. She also stated that the appellant was a stranger to her and that she had first met him that day.
[3] Certain aspects of the police statement put to the complainer in cross-examination were consistent with her evidence in chief. However:
- She said she didn’t know her boyfriend was outside the flat prior to her mother arriving, had not heard him banging or shouting to get in, yet her statement referred to his presence at that time.
- In her statement she said she had prevented the appellant from leaving the house, that he had kissed her, and that this preceded an altercation between the appellant and the complainer’s mother. In her evidence she said that what she had said in the statement was untrue, and in fact that when the appellant had been heading towards the door, seemingly to try to get at her boyfriend who was on the other side of it, he squeezed the complainer’s face really hard and pressed her head backwards. His hand was on her mouth and his thumb and fingers on either side of her face. He then slapped her with a “forceful enough” blow. No mention of the slap had been made in the statement.
- She accepted that she had given the police an untrue account of the circumstances in which her mother had been asked to leave the flat. In evidence she mentioned the advances made to her mother, and said that her mother left after the complainer had been assaulted by the appellant, realising that the police should be called but that the complainer could not do it. In her statement she said that she heard her mother say “let go of me” but “I can’ remember what he was doing to her”. In her statement she said the reason her mother left was that she had taken exception to the presence of a syringe, and that the complainer had forced her mother to leave.
- She agreed she told the police she had gone to the window to check that both her mother and her boyfriend had left, but this was not true.
- Although she told the police that the appellant had managed completely to remove her trousers and pants, her evidence in court was that these items had not been completely removed from her legs.
- A similar issue arose in relation to the appellant’s clothing, her statement indicating that he stood and removed his trousers and pants, her evidence suggesting that they were not completely removed.
- She was challenged about that part of the statement in which she said that she had encountered the appellant a number of times in passing, and said “hi”. The sheriff did not recall any specific question being put, but it may be presumed that this evidence was raised to challenge her assertion in court that the appellant was a complete stranger to her whom she had met for the first time that night.
[4] In her report the sheriff states [para 18]:
“With regard to the statement as a whole, the witness stated in evidence that there were parts which were correctly recorded but incorrect as to the facts. She explained why she had not told the truth, and in my view, the few points which she accepted as incorrect were either more or less irrelevant or not entirely inconsistent with her position in the witness box.”
From this it appears that a deliberate decision was taken not to direct the jury on the issue.
[5] The sheriff gave conventional directions to the jury that evidence is what is said from the witness box, that the content of questions is not evidence, nor are suggestions made to a witness unless the witness agreed with them. She added:
“If something is put to a witness who can’t remember, or who doesn’t know, then that’s not evidence, and what’s said in speeches is not evidence.”
[6] The sheriff made no mention of the statements which had been put to the complainer in this case, the effect of them, or the way in which the jury might use the evidence relating to them. When the jury returned to ask if they could see the statement, the sheriff said:
“The answer to the question is quite short, and it is “no”. I remind you of what I said to you about a witness’s evidence is what is said in the witness box.”
[7] The sheriff gave the jury relatively standard directions about corroboration, without explaining the extent to which distress might...
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