High Court refuses appeal against assault conviction based on use of de recenti statement without complainer’s evidence

About this case:

• Citation:
  [2026] SAC (Crim) 3
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Iain Fleming

Appellant MXG was initially charged by the Procurator Fiscal in Edinburgh with a contravention of section 1 of the Domestic Abuse (Scotland) Act 2018, aggravated by involving a child, however he was convicted by the sheriff of common law assault. Leave to appeal was given in respect of only one of the two assaults, which occurred at some time in August 2023.

The appeal was heard by Sheriff Principal Aisha Anwar KC, with Appeal Sheriffs Iain Fleming and David Young KC. S Collins, solicitor advocate, appeared for the appellant and Harvey, advocate depute, for the Crown.

Outpouring of feelings

At trial, the Crown did not lead evidence from the complainer, MG, but led evidence from her friend RB. RB testified that one night in August 2023, MG came to her house between 9pm and 10pm, accompanied by her small child. She was crying, with bruising on her face and neck, and asked to stay for a while in RB’s house. RB further testified that MG told her that the appellant, who had been drinking, had “given her a punching” and kicked her out of the house. When asked about the bruising to her neck, MG demonstrated a strangling motion to RB saying it was “tight by the hand”.

The solicitor acting for the appellant objected to RB’s evidence, submitting that the evidence of MG’s de recenti statement was only available for corroboration of MG’s evidence only and could not be used as a primary source. However, the sheriff repelled the objection, noting passages from Lord Advocate’s Reference (No 1 of 2023) which he concluded showed that such a statement was available as proof of fact and as corroboration of other evidence. He also referred to Ahmed v HM Advocate (2009), where it was held on appeal that a de recenti statement spoken to by a witness but denied by the complainer herself was admissible.

On appeal, it was submitted for the appellant that the statement given by MG could not truly be said to be de recenti as there was no evidence as to when the event that gave rise to the statement had taken place. There was therefore no evidential basis for the sheriff to conclude that the account was given “immediately” after the event.

The Crown submitted that nothing turned on the fact that the complainer had not given evidence. Support for the sheriff’s findings in fact could be drawn from the timing of the complainer’s arrival at RB’s house, that she was injured and carrying her child, and her distress. The statement was a natural outpouring of feelings aroused by the most recent injury which had not subsided.

Disavowed proposition

Delivering the opinion of the court, Appeal Sheriff Fleming said of the relevant factors: “The sheriff was entitled to have regard to the following; (a) MG’s distress (as evidenced by her crying); (b) her request to stay at RB’s house for a while; (c) her attendance at RB’s house with her having small child; (d) her explanation that she was crying because her husband (the appellant) was drunk, had assaulted her and had kicked her out of the house; and (e) the injuries to MG namely the marks on her face and neck.”

He added: “There is also one other factor which is referred to within the findings in fact, which is the fact that RB lived ‘nearby.’ While the Crown did not specifically rely on this aspect of the evidence we are of the view that it is an important feature, particularly in relation to the point raised by the defence about the lack of evidence referable to the timing of the incident.”

Considering the arguments on the lack of testimony from the complainer, Appeal Sheriff Fleming said: “Direct evidence from a complainer is distinct from the evidence of a third party about that complainer’s de recenti statement accompanied by distress. As such the sheriff was entitled to treat them separately and allow the evidence of the statement and the distress as distinct from the complainer’s direct evidence. The Lord Advocate’s Reference (No 1 of 2023) at para [234] disavows the proposition that a de recenti statement is a special type of evidence which is only available to corroborate the direct evidence of a complainer.”

He concluded: “In this case corroboration came from the de recenti statement and the application of the doctrine of mutual corroboration. The de recenti statement provided real evidence that an assault was committed and that the appellant was the person who committed it; thereafter, mutual corroboration operated between that assault and the evidence led in support of the assault on 8 June 2024, there being obvious similarities in time, character and circumstance between the two assaults. For that reason, the sheriff did not err in repelling the no case to answer submission.”

The appeal against conviction was accordingly refused.