Garland v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Menzies,Lord Turnbull |
| Judgment Date | 30 October 2020 |
| Neutral Citation | [2020] HCJAC 46 |
| Court | High Court of Justiciary |
| Docket Number | No 12 |
[2020] HCJAC 46
Lord Justice General (Carloway), Lord Menzies and Lord Turnbull
Branney v HM Advocate [2014] HCJAC 78; 2014 SCCR 620; 2014 SCL 728; 2014 GWD 31-606
Dunn v McGovern [2013] HCJAC 120; 2013 GWD 32-636
Fox v HM Advocate 1998 JC 94; 1998 SLT 335; 1998 SCCR 115
Gilmour v HM Advocate 1994 SCCR 133
Gray v Procurator Fiscal, Elgin SAC, 29 July 2020, unreported
Mackie v HM Advocate 1994 JC 132; 1995 SLT 110; 1994 SCCR 277; The Times, 30 March 1994
Justiciary — Evidence — Sufficiency — Sexual offence against child — Evidence from accused that child had touched him — Whether such evidence capable of confirming or supporting complainer's testimony — Whether sufficiency of evidence
Alexander John Garland was charged at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, on an indictment libelling a charge of rape and a charge of sexual assault. On 6 December 2019, he was convicted of the charge of sexual assault after trial in the High Court of Justiciary. The appellant thereafter appealed against conviction to their Lordships in the High Court of Justiciary.
The appellant was indicted on a charge of rape of an adult female and of sexual assault upon the 11-year-old daughter of his partner. The sexual assault libelled that the appellant lay beside the complainer, placed his hands inside her lower clothing, touched and rubbed her buttocks and repeatedly took her hand and compelled her to touch his penis. The complainer's mother gave evidence that she had received a letter from the appellant while he was on remand which referred to an incident on a couch and to the complainer touching him and then hitting him on his private parts. The appellant gave evidence that the complainer had come into his bedroom, gone under the covers and deliberately placed her hand so that it was touching his penis over his shorts. The appellant was acquitted of the charge of rape but convicted of the sexual assault upon the child. He appealed.
The appellant submitted that the trial judge erred in directing the jury that the content of the letter could be interpreted as an admission and that the jury ought to have been directed that the sexual assault charge could only be proved by the application of mutual corroboration. The letter did not contain an admission of inappropriate behaviour or wrongdoing and was entirely exculpatory.
The Crown argued that there was a sufficiency of evidence based upon the appellant's admissions.
Held that: (1) it was not immediately clear how the letter referring to an incident on the couch and to the complainer having touched the appellant could corroborate the complainer's account of what had happened in the bedroom which involved positive actions by the appellant, and the trial judge ought to have given the jury clear directions on where corroboration might be found by identifying with reasonable precision any passages in the letter, or elements of the appellant's testimony, which might constitute corroboration (paras 19, 20); (2) given that the jury had accepted the testimony of the complainer as credible and reliable, the only real question was whether corroboration could be found in either the testimony of the appellant or the letter; where the question was whether proof of certain facts and circumstances afforded sufficient corroboration of direct testimony, it was not necessary for those facts and circumstances to be more consistent with the direct evidence than with an explanation or account given by an accused (para 21); (3) taking all the facts and circumstances together, including the relationship between the appellant and the complainer, the appellant's acceptance that he was in close physical contact with the complainer, in a bed, and that the complainer's hand was touching his penis, it was a matter for the jury to decide whether they regarded these facts and circumstances as confirming or supporting the complainer's testimony or whether they interpreted them in a different manner (para 22); and appeal refused.
Fox v HM Advocate 1998 JC 94 applied.
The cause called before the High Court of Justiciary, comprising the Lord Justice General (Carloway), Lord Menzies and Lord Turnbull, for a hearing, on 15 October 2020.
At advising, on 30 October 2020, the opinion of the Court was delivered by the Lord Justice General (Carloway)—
Opinion of the Court—
[1] On 6 December 2019, the appellant, who was aged 32, was convicted of a charge which libelled a sexual assault on an 11-year-old girl, namely KC, on an occasion in May 2019 at the address of her mother. The appellant was living with the complainer's mother at the time. The detail of the libel was that the appellant:
‘[D]id lie beside her, place your hands inside her lower clothing, touch and rub her buttocks and repeatedly...
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Sean Robin James Hogg Against Hma
...and therefore that the matter should be left to the jury. As to the procedure adopted, he considered that in view of Garland v HM Advocate 2021 JC 118 it was incumbent on him to identify any basis on which the evidence of KM might be corroborated. Distress was one such basis. The evidence o......