A man found guilty of domestic assault after a comment he made to police at the charge bar was used to corroborate his partner’s account of events has successfully appealed against his conviction.
The Sheriff Appeal Court ruled that the appellant’s response to a question by a police sergeant after he had been detained and cautioned was not admissible evidence and therefore quashed the conviction as there was no corroboration of the identity of the assailant in the absence of the inadmissible reply.
Sheriff Principal Ian Abercrombie QC, sitting with Sheriff Michael O’Grady QC and Sheriff Sean Murphy QC, heard that in January 2017 the appellant Fraser Mitchell was convicted by the sheriff at Kirkcaldy of a charge of domestic assault by striking his partner in her groin with his knee and repeatedly striking her to the head and body to her injury.
The court was told that the couple had fallen out after the appellant admitted an incident of infidelity and that during the assault his ring finger was scratched.
The complainer initially explained away her injuries by telling colleagues that she had been in an accident and by telling her mother that she had fallen down the stairs, but when her mother questioned that account she eventually admitted that she had been assaulted by the appellant.
The matter was subsequently reported to the police and the appellant was detained at his own address, where he was cautioned at common law before being taken to Dunfermline Police Station.
Admission to custody sergeant
On arrival there he was asked a series of what were described as “routine” questions by the custody sergeant in relation to his welfare and vulnerability, and he was encouraged to answer “accurately and honestly”.
The appellant was asked whether he had any injuries in order to ascertain whether he might require any medical attention while he was in custody, and he referred to one on his hand.
The sergeant asked how recent that injury was and the appellant replied, “What’s been … why I’m here”.
For corroboration of the complainer’s account that an assault had taken place the Crown relied on the observations of her injuries made by her mother shortly after the day of the incident and medical evidence and photographs of those injuries.
For corroboration of the complainer’s account that she had been assaulted by the appellant the Crown sought to rely upon the comments he made to the custody sergeant.
Objection to admissibility
Before the sheriff at trial the defence objected to the admissibility of those remarks and following a trial-within-a-trial and, having heard parties’ submissions, he decided that the comments had “not been unfairly obtained” and were “admissible”.
He proceeded to convict the appellant, relying on the appellant’s remarks to the custody sergeant for corroboration of the identity of the assailant, but on appeal it was argued that the sheriff had been wrong to do so.
It was accepted that the custody sergeant had no connection with, or knowledge of, the enquiry and that he had asked the questions for the purpose of determining the appellant’s fitness for detention and to ascertain whether he might require medical attention, but it was submitted that the appellant had been detained in connection with an assault and the questions of whether he was injured and the time at which any injury had been sustained were “clearly and obviously relevant to the enquiry”.
For that reason Gilmour v HMA  HCJAC fell to be distinguished. In that case the reply given could not reasonably have been anticipated; in the present case any reply to either of the questions asked was obviously likely to be relevant and therefore the appellant’s reply should not have been seen as a “spontaneous admission”.
The present situation, it was said, was closer to the cases of Jolly v HMA  HCJAC 96 and Tole v HMA  HCJAC 109.
The appellant had been “specifically encouraged” to answer the questions put by the sergeant with “no caution or warning” as to the use which might be made of his replies and “no reference to his right to silence”.
As there was no corroboration of the identity of the assailant in the absence of the inadmissible replies, it was argued that the conviction should be quashed.
The court held that while the custody sergeant had acted in “good faith” the questions were “likely to stray” into matters connected with the incident that led to the appellant’s detention.
Delivering the opinion of the court, Appeal Sheriff Murphy said: “The appellant had been cautioned at common law at the time of his detention. He had been asked the welfare questions on his arrival at the police station but before he had been advised of his rights to access to legal advice. He had not been reminded of his right to silence but had in fact been told to answer the sergeant’s questions accurately and honestly.
“We regard the fact that the appellant was advised to answer the welfare questions accurately and honestly as a particularly important feature of this case because that statement conflicted with the terms of the caution which had earlier been administered to him and may have been considered to have over-ridden the caution. At the point of the enquiries at the charge bar he had not yet been advised in the usual way about his rights in relation to legal advice before being questioned and he had not been cautioned again since his detention at his own home.
“It follows that we do not consider that the reply made to the sergeant by the appellant was admissible evidence in relation to the incident at the complainer’s house. Without that evidence there was no corroboration of the identification of the appellant as the assailant.”