The appellant, WM, was convicted of two charges of assault. One of the charges involved his 6-year-old son. He was convicted of repeatedly striking him over the head and pulling him by the hair over a period of five months. The second charge involved assaulting another child over the first four months of his life. He was convicted of failing to seek appropriate medical aid for him.
The appellant had lived with the mother of the children. He stated that he was also the father of the child in charge 2; however, there was some doubt in respect of this.
In relation to the first charge evidence was led by way of a Joint Investigative Interview. Cross examination was by way of a commission in which the complainer confirmed that the allegations in the JII were true and that no one told him to make them up. Further corroboration came from comments made by the appellant to his partner at the time. During his period of remand she told him: ‘well stop hittin’ them’.
In providing his directions to the jury the Judge stated that in respect of both charges they could convict on the basis of the evidence led on those charges standing alone. They were directed that the various statements made by the appellant could be treated as admissions. Alternatively, they were advised that the could convict the appellant on the basis of mutual corroboration.
It was submitted that the trial judge had erred in directing the jury that they could convict him of assaulting his son in charge one without the use of moorov from charge 2. It was argued that the responses made in the calls could not be regarded as an unequivocal admission. The position was that the comments were too generalised and the appellant had not made an admission to a specific or clear allegation.
In providing the opinion of the court, Lady Dorrian stated: “It is well established that it is not only clear and unequivocal admissions which have evidential value. The same applies where the significance of the evidence is that an appellant had failed to respond or react to an allegation in circumstances where that failure could be regarded as criminative. However, it is important to distinguish the case where such evidence is relied upon as the primary evidence in a circumstantial case, and one where it is relied upon as corroboration of other evidence which constitutes the primary evidence.”
She continued: “Everything depends on the context. However, the present case is one in which there was clear primary evidence, should the jury choose to accept it. It was entirely open to the jury to accept the evidence in chief as the truth and to reject the evidence given on commission. The point which then arises is whether that evidence was sufficiently corroborated.”
Lady Dorrian concluded: “The trial judge directed the jury that the content of this, including to some extent what was said by JG, could provide independent corroboration. The jury were directed that it was a matter for them to determine the significance of what was said in the phone calls, and that the conversations had to be taken as a whole. The evidence of the conversation as a whole was clearly capable of providing support for the primary evidence in the case.”
The appeal against conviction was refused.