[2019] HCJAC 36 HCA/2018/275/XC Lord Justice General Lord Drummond Young Lord Turnbull

APPEAL COURT, HIGH COURT OF JUSTICIARY [2019] HCJAC 36 HCA/2018/275/XC Lord Justice General Lord Drummond Young Lord Turnbull OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL in NOTE OF APPEAL AGAINST CONVICTION by CHRISTOPHER WILSON Appellant against HER MAJESTY’S ADVOCATE Respondent Appellant: A Ogg (sol adv); Nigel Beaumont & Co Respondent: Borthwick AD; the Crown Agent 14 June 2019 Introduction [1] On 27 April 2018, at the Sheriff Court in Edinburgh, the appellant was convicted of a charge which libelled that: “(3) between 1 ... and 24 November 2017 at ... Lawfield Road ... Laurelbank Place and ... Kippielaw Park, all Mayfield; ... Parkhead Place and Easthouses Road, both Easthouses, all Dalkeith ... you ... did assault [CC], your partner ... and did repeatedly 2 punch and kick her on the head and body, repeatedly cause her to fall to the ground, seize her by the hair and drag her across the floor, seize her by the throat and apply pressure causing her to struggle to breathe, seize her by her clothing and drag her by same, repeatedly kick her on the head, push her into a bath, forcibly pin her down and turn on the tap of said bath, throw a remote control at her, throw a television at her, spit on her, empty the contents of an ashtray on her ... strike her on the body with a vacuum cleaner, repeatedly chase her, push her on the body all to her injury; you ... did commit this offence while on bail, having been granted bail on 4 September 2017 at Edinburgh Sheriff Court and it will be proved in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 that the aforesaid offence was aggravated by involving abuse of your partner or ex-partner.” He had been acquitted, following a no case to answer submission, of a breach of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 by, between the same dates and at the same loci, damaging various household items (see complainer’s evidence on the first incident (infra)). On 16 May 2018, the sheriff imposed a Community Payback Order on the appellant, with 150 hours unpaid work, a supervision requirement for 24 months, a Restriction of Liberty Order for a period of 6 months and a Non-Harassment Order of 3 years. [2] The appellant was also convicted (charge (5)) of breaching his bail condition not to approach the complainer on the dates and places libelled in charge (3). He was sentenced to 6 months imprisonment on this charge. [3] The appeal raises the issue of what is required to corroborate the complainer’s testimony concerning the assault libelled when the Crown have elected to libel a number of assaults within one omnibus charge. The case falls to be analysed in light of the principles which were recently set out in Spinks v Harrower 2018 JC 177. The complainer’s evidence [4] The principal evidence came from the complainer, who was aged 20. She had been 3 in a relationship with the appellant “on and off” for a period of 4 years. They had two children, who were respectively aged 2 years and 8 months at the material time. In September and October 2017, the complainer and the appellant were separated. The complainer was living with the children in her flat in Laurelbank Place, Mayfield. The appellant was staying nearby at his flat in Lawfield Road. First incident (the complainer’s flat) [5] The complainer began her evidence by describing the first incident; the commencement date for the inclusive charge being 1 November 2017. The complainer said at first that this incident occurred “in October ... maybe a bit sooner than October ... August ... September time ... It was ... round about the end of September, start of October”. She was “pretty sure it was October”. She did not think that she could have been mistaken about that. This led to the introduction of the complainer’s statement to the police, which had been given on 26 November 2017. It stated that the incident had taken place on 1 November. The complainer said that this was a mistake, since by then she would have been living at the appellant’s flat. The incident would have been in the first week of October, since she was in the appellant’s flat the second week of October until two weeks after 5 November (“fireworks night”). Notwithstanding that any such incident would have fallen outwith the libel, the procurator fiscal depute was permitted, without objection, to continue to examine on it. [6] The appellant had appeared at the complainer’s door. He thought that she had started a relationship with another man and that the man was in the flat. He began by shouting at the complainer and destroying the kitchen; tearing worktops and radiators off walls, throwing food about and spraying “stuff” on the walls. He broke every photo frame 4 and mirror. He emptied rubbish bins and kitchen drawers and cupboards. He then told the complainer to clean things up before attacking her. He started “strangling” the complainer. He punched her repeatedly on the face, so that her cheeks, forehead, eyes and chin were “all black and blue”. He kneed her in the ribs [7] The complainer moved through to the bedroom with her son, who had woken up, followed by her daughter. The appellant was watching that she “was not going to run away”. He poured a bottle containing coca cola, ash and cigarette ends over her and the boy, whom she was holding. He began breaking everything in the room; pulling clothes out of drawers before attacking her once more. He pushed her repeatedly onto a bed and again “strangled” her. He punched her repeatedly. He pulled her hair; tearing out her hair extensions. He threw a television at her. He hit her on the legs with a bit of wood, which she kept to barricade the door. The complainer was crying hysterically. Her son was screaming. Her daughter looked on unmoving, as she was “used” to it. [8] The appellant went for a shower. He locked the main door of the flat. He called the complainer into the bathroom to give him a towel. When she did so, the appellant grabbed her and again punched her on the left side of her face. He pulled a ring off her finger and flushed it away. The complainer went into the bedroom before going back to the bathroom. The appellant pushed the complainer into a bath, and attempted unsuccessfully (because of a lack of gas) to pour hot water over her. He started punching her again. She was bleeding from the scratches to her face. [9] The complainer went into the children’s bedroom. The appellant followed her and pinned her by the neck against a chest of drawers. He punched her again a few times. He told the complainer to pack. The family were to go to his flat. He emptied the fridge/freezer and put the contents of it and items of clothing in a pram. The complainer had to wear a 5 scarf to cover her face, which was a mess of cuts, scratches and bruises, before setting off at about 4.00 or 5.00pm on the five minute walk with the two children to the appellant’s flat. Second incident (the appellant’s flat) [10] After the family had arrived at the appellant’s house, they all had to leave to go to a local shop to buy electricity and cigarettes. On their return, the complainer was to help the appellant move a furniture unit. In the course of this exercise, the unit broke. The appellant hit the complainer on the legs and back with parts of the unit. He pushed her against a wall. Her head banged off the wall. He punched her and dragged her about. Things calmed down after the appellant had ordered a take-away. He told the pursuer to undress so that he could see the damage which he had done. This was about 10.00pm. She was covered “from head to toe” with bruises. She had lumps on her forehead and “half” her hair was gone. She could not leave because she was locked in. Third incident (the appellant’s flat) [11] After some, possibly only 4, days, the family went to the appellant’s mother’s house, which was about ten minutes away. The complainer had to wear clothing and make-up which would conceal her injuries. The purpose of the visit was to wash clothes in advance of “bonfire night”. The visit was on 4 November. They returned to the appellant’s house. The appellant had threatened to kill the complainer if she left and went to the police. He said that he would slit her throat, harm her sister and set her flat on fire. [12] On 5 November the family went to the appellant’s nan’s house. At the end of the evening, they returned to the appellant’s flat. He was in a bad mood because he had lost his keys, although he did manage to open the door somehow. He pushed the complainer to the floor, so that she was sitting against a unit, and kicked her three times in the face, breaking 6 her nose. There was blood “everywhere” including on the complainer’s daughter, who was wearing a pink Peppa Pig jacket. The appellant began to panic in case the complainer had to go to hospital. He told her that she could not go. He locked the pursuer in the flat while he bought her some sweets from the Co-op.

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