Stobo v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 22 October 1993 |
| Docket Number | No. 8. |
| Date | 22 October 1993 |
| Court | High Court of Justiciary |
JC
LJ-G Hope, Lords Allanbridge, Brand.
Evidence—Sufficiency—Sexual offence—Circumstantial evidence—Nature of circumstantial evidence—Distress—Whether distress sufficient to corroborate indecent assault
The pannel was tried on a charge of indecent assault, the libel of which was spoken to by the complainer. The Crown relied upon her distressed condition after the incident for corroboration. The sheriff charged the jury that they could use the evidence of her distressed condition as supplying the necessary corroboration provided they were satisfied that it was referable only to the indecent assault and not to some extraneous factor or other reasons. On being convicted, the pannel appealed to the High Court of Justiciary and argued that the distress of a complainer could never be capable in law of corroborating her evidence that she had been indecently assaulted.
Held (1) that circumstantial evidence, such as that provided by physical injuries or torn clothing, need not be shown to be unequivocally referable to the crime libelled before it could be said to corroborate the evidence of an eyewitness, for the significance of circumstantial evidence had to be left to inference and the strength or weakness of the inferences to be drawn from it would vary according to circumstances; accordingly (2) that where circumstantial evidence was relied upon in order to corroborate the complainer's evidence on the matter, the circumstances did not require in themselves to be incriminatory, for what was required was that the circumstantial evidence could provide support for her evidence and it was sufficient for this purpose if it was consistent with what she had said; and (3) that the question then came to be one for the jury, to assess the weight and quality of the complainer's evidence and of the circumstantial evidence which was said to corroborate it; and appeal refused.
Meredith v. LeesSC 1992 J.C. 127 applied.
Observed (1) that whether distress could provide corroboration or not of the complainer's evidence had to depend upon the nature of the activity she had described for it could not provide corroboration as to the identity of the assailant nor in cases of assault where the evidence of the assault resulted in physical injury; and (2) that where corroboration of penetration was necessary in rape cases, distress was incapable of providing it for the other acts involved in overcoming the complainer's resistance would be sufficiently distressing in themselves to explain the distress.
Ronald Morrison Stobo was charged on an indictment at the instance of the Rt. Hon. The Lord Rodger of Earslferry, Q.C., Her Majesty's Advocate, the libel of which set forth, inter alia,that: "(2) on 28th March 1992 within motor vehicle registered number F671 FYS, then being driven by you, while employed as a taxi driver, travelling between [address], Paisley and [address], Paisley, you did in Blackstoun Road, Paisley, make a detour in said motor vehicle, drive it to an unspecified road in Linwood and did assault M.K. or M., then a passenger in said motor vehicle, place her in a state of fear and alarm for her safety, kiss her on the lips, place your hand within her trousers, fondle her private parts, place your hand on her neck and push her face down to your erect private member, cause her to touch your private member with her mouth in an attempt to have oral sex with her, re-start said motor vehicle and while driving between Linwood and Candren Road, Paisley, place her hand on your private member and continue to touch her leg."
The pannel pled not guilty. The cause came to trial in the sheriffdom of North Strathclyde at Paisley before the sheriff (C. K. Higgins) and a jury.
After trial, the pannel was found guilty and duly sentenced. He appealed to the High Court of Justiciary by way of note of appeal against conviction.
In his report for their Lordships' consideration, the sheriff set forth,inter alia, that: "The appellant, by reference toMcLellan v. H.M. AdvocateUNK 1992 S.L.T. 991 and the opinion of the Lord Justice-General therein at p. 994 B, maintains that in charging the jury I misdirected them. Looking to the authority referred to and which I had considered prior to charging the jury, I was satisfied that the activity complained of in charge 2, namely an alleged indecent assault upon a woman of almost 60 by a taxi driver, was indeed “an activity … which in itself is so distressing that a jury would be entitled to hold that it would be liable to distress the victim”. For that reason I considered it was appropriate to direct the jury that the evidence of the victim's distress as spoken to by another or others was capable in law of corroborating the complainer's evidence of, in this case, the alleged indecent assault upon her. … I was at pains to emphasise to the jury that evidence of distress as spoken to by other witnesses did not automatically afford corroboration but that it may—which I emphasised—do so, reminding the jury that such evidence remained subject to their test of reliability and credibility. At two points in the charge I emphasised to the jury that the evidence of distress must be capable of being referred only to the alleged indecent assault and to no other event, factor or circumstance. In the light of the evidence, I instanced embarrassment, shame or over-indulgence in drink. Immediately thereafter I reminded the jury that in the context of corroboration they must consider all the evidence and in particular instructed them, “You may also consider such other parts of the evidence as afford or offer themselves as corroboration for the claim by Mrs M.”; the “claim” being, as I saw it, the two essential issues that she was in the appellant's taxi—a point disputed by the appellant—and whether it was the appellant who assaulted her there. This, as I read the opinion of the Lord Justice-General, was the “further evidence [which required] to be led to establish the other elements necessary to prove that the particular crime libelled has been committed, because distress in itself is incapable of providing corroboration in regard to those elements”. In that regard the jury had before them evidence from...
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Smith v Lees
...evidence should be limited to situations where it was necessary to establish the state of mind of the witness. Stobo v. HM AdvocateSC 1994 JC 28 overruled. Authorities considered. Gregory Alexander Smith was charged in the sheriffdom of Lothian and Borders at Edinburgh on a summary complain......
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Reference By Hma Against Clb
...committed, because distress in itself is incapable of providing corroboration in regard to those elements.” [100] In Stobo v HM Advocate 1994 JC 28 the appellant was convicted of an indecent assault on a 60 year old woman in his taxi at between 1.15 and 2.15am by kissing and fondling her an......
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Gordon v Scottish Criminal Cases Review Commission (Scotland)
...an approach was also compatible with the Convention: "For instance, in Smith v Lees 1997 JC 73 the Court of Five Judges overruled Stobo v HM Advocate 1994 JC 28 and thereby laid down a more restrictive test for corroboration in cases of sexual assault. The new test applied to the appellan......
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Jean Pierre Bestel and Others v R
...understood can be applied to Scots law. For instance, in Smith v Lees 1997 JC 73 the Court of Five Judges overruled Stobo v HM Advocate 1994 JC 28 and thereby laid down a more restrictive test for corroboration in cases of sexual assault. The new test applied to the appellant's case and to ......