Domestic abuser wins appeal over lack of corroboration of ‘course of conduct’ assault charge
A man found guilty of a single charge of assault comprising eight separate incidents in a “course of conduct” involving a four-year campaign of domestic abuse of his then partner has had his conviction restricted to just two of those offences, after appeal judges ruled there was “no corroboration” of any other of the assaults libelled.
The Appeal Court of the High Court of Justiciary ruled that both the sheriff and the Sheriff Appeal Court (SAC) erred in holding that individual elements of a single “omnibus” charge did not require corroboration where a course of conduct had been established.
‘Course of conduct’
The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that in August 2017 the appellant Robert Spinks was found guilty at Kirkcaldy Sheriff Court of two charges: the first was a stalking offence under section 39(1) of the Criminal Justice and Licensing (Scotland) Act 2010, by engaging in a course of conduct which caused “MK” fear or alarm; and the second was that, on various occasions between January 2013 and March 2017, he assaulted “MK” by punching her on the head, repeatedly seize and compress her by the throat, repeatedly pin her to the ground and against a wall, throw water at her, strike her on the head causing her to strike her head against a wall, repeatedly seize her by the hair, kick her on the body, and spit on her face, all to her injury.
Having found that eight separate assaults were proved, the sheriff imposed a community payback order involving a supervision requirement of two years, a programme requirement for two years and unpaid work of 300 hours.
The sheriff had asked himself whether it was legitimate for the Crown to libel charge 2 as a “course of conduct” involving the abuse of a partner in the domestic context, and considered that it was, on the authority of Stephen v HM Advocate 2007 JC 61, a lewd and libidinous conduct case in which the details of the assault on a young complainer did not require to be corroborated.
The sheriff’s reasoning was that if there was corroboration of an assault, the complainer’s evidence would be enough on its own to establish its details. It was legitimate to treat the series of assaults as a course of conduct, because they could be seen as very similar abusive conduct involving a domestic partner.
The Sheriff Appeal Court upheld the sheriff’s decision, but neither the sheriff nor the SAC were referred to Dalton v HM Advocate 2015 SCCR 125, a misdirection case in which the court held that, where separate episodes of rape on an adult complainer with substantial periods of time between them were involved, each episode required to be proved by corroborated evidence, even if the same evidence may corroborate more than one offence.
Courts below ‘erred’
The appellant appealed on the basis that the Sheriff Appeal Court and the sheriff erred in holding that, where a course of conduct had been established in the context of a single charge, individual elements of the charge did not require corroboration.
The SAC had held that no corroboration was required for what were essentially separate offences, occurring over a period of several years - a decision which would allow the Crown to present sufficient evidence for individual offences without the need for corroboration, even if the incidents were of a significantly different character.
It was submitted that the court should accordingly follow Dalton and not Stephen,
The advocate depute maintained that, where it was established that offences committed over a prolonged period, albeit on separate occasions, were so linked in time, character and circumstances so as to demonstrate that they were parts of a single course of conduct, all that was required was corroboration of some of the episodes to amount to corroboration of the whole; that is to say that separate corroboration of each episode was not required.
The court ought to follow the principle in Stephen, as the course of conduct could be treated as a single crime which could be corroborated if only some, or perhaps only one, of the episodes were supported from a separate source.
Omnibus charge does not change law of evidence
However, the appeal judges said they were unable to sustain the Crown’s submission, which amounted to “a substantial change in the law of evidence”.
Delivering the opinion of the court, the Lord Justice General said: “A person cannot be convicted of a crime on the evidence of one witness alone. There requires to be corroboration. Where, as here, a complainer speaks to the occurrence of a crime, the crucial facts of her testimony require to be corroborated by testimony from at least one other source.
“In the case of a single episode of assault, there is no need for every element of the libel to be corroborated. All that is needed is evidence from another source that some form of assault took place and the appellant perpetrated that assault, at least where the assault involves the same type of conduct. The situation is quite different where there are separate incidents. In that situation the normal requirement of corroboration applies to each incident.”
Lord Carloway added: “There was corroborative evidence from MS that the appellant spat at the complainer (finding h). The appellant admitted punching the complainer, so there was corroboration of that allegation on one occasion (finding d). There is no corroboration of any other of the other assaults libelled in charge 2.
“The fact that the Crown case proceeded, presumably without objection, upon an omnibus charge does not affect the law of evidence. Accordingly, the appeal must be allowed and the conviction restricted to that: on one occasion in 2015 the appellant punched the complainer on the head; and on another occasion on 27 March 2017 he spat on her face.”
The court accordingly adjusted the sentence imposed to a total of 100 hours unpaid work and quashed the programme and supervision requirements.