Gordon Campbell was convicted at trial of assault to severe injury and permanent disfigurement. He appealed his conviction on the basis that at trial the sheriff had misdirected the jury.
The misdirection was in relation to the response to an accusation made by the complainer on the night in question which was overheard by a neighbour. The complainer told the court that on the 26th of December 2018 she was arguing and drinking with the appellant at his flat. She explained that she turned away to go to the bathroom and there was a blow to the back of her head. She spoke of the glass smashing. The complainer’s neighbours assisted her. The appellant caught up with the complainer and she said to him “you’ve really hurt me this time”. The complainer’s neighbour gave evidence about this and stated that the appellant gave no response to the statement.
The appellant pled not guilty and during cross-examination stated that she must have tripped on the way to the bathroom and hit her head. He offered no explanation for the broken glass that was found in the apartment. He also stated that he had replied to the complainer’s statement. However, no other evidence supported this.
In his charge to the jury, the sheriff gave the standard directions on corroboration. He stated that it would be open to the jury to infer that the appellant had impliedly admitted his assault by not replying to the complainer’s statement that he had hurt her. It was argued on behalf of the appellant that the sheriff should have directed the jury that lack of reaction was not evidence against the appellant if they determined that there was no requirement for him to contradict the complainer’s statement. It would only be in circumstances where the jury considered the appellant required to deny the comments that his lack of reaction could be used as an admission.
In providing the opinion of the court, Lord Carloway referred to Renton & Brown’s Criminal Procedure: ‘A statement by another person, whether or not that person is a co-accused, made in the present of an accused, is not in itself evidence against that accused. The accused’s reaction to that statement, or indeed his failure to react to it where it is incriminative, is, however, evidence against him in the same way as a statement made by him, silence in the face of accusation being capable of being construed as an admission of guilt.”
In discussing the appellant’s position at trial, Lord Carloway said: “The live issue in this trial was not whether the circumstances were such as to give rise to an implied admission. That was not the appellant’s position. He maintained that he had replied and repudiated the allegation. The complainer had made a clear accusation that the appellant had assaulted her. The appellant, on the evidence of the neighbour, did not deny this. In these circumstances the jury were entitled to hold that this was an implied admission. That is essentially what the sheriff directed the jury.”
He concluded: “In any event, no miscarriage of justice can be said to have occurred. There was clear evidence from the complainer that she had been assaulted and that it had been the appellant who had assaulted her. The assault was adequately corroborated by the injuries which the complainer was suffering when observed by the neighbour on the landing. The complainer’s identification of the appellant as her assailant was adequately corroborated by the circumstances spoken to by the neighbour, whereby, at or about 3.00am, the appellant was standing over the complainer on the landing with blood trailing from there down to the appellant’s flat, where he was found soon after and alone by the police.”
The appeal against conviction was refused.