Procurator Fiscal, Glasgow v. Barry McGovern [2013] HCJAC 120

Crown appeal by Stated Case:- In this case the respondent, a care worker, was charged with  assaulting the complainer, who suffered from dementia, by seizing her by the body, pushing her on the body and sweeping her legs from underneath her causing her to fall to the ground contrary to section 1 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009 and that it was aggravated by prejudice relating to disability. The complainer did not give evidence due to her condition. The main evidence at the trial came from another care worker who stated that she saw the respondent trip the complainer over his feet onto the floor causing her to fall backwards onto the floor on her backside. The supporting witness gave evidence that she did not actually see the complainer being put on the ground but did see her on the ground. The respondent had been interviewed in which he stated that he may have unintentionally caused the complainer to fall backwards by cuddling her which might have caused her to stumble over but that he meant no harm and had no malicious intent. The sheriff upheld a “no case to answer” submission and the Crown appealed against that decision by way of Stated Case. It was submitted that there was sufficient evidence. On behalf of the respondent it was submitted that the evidence fell short of what was required and that there was no evidence of any altercation or conflict which allowed the present case to be distinguished from that of Gilmour v. H.M.A. 1994 SCCR 133. Here the court refused the appeal and held that the sheriff had been correct to conclude that there was no case to answer as the assault of placing his leg behind the complainer's legs and tripping her over onto the ground was uncorroborated by anything the supporting witness saw or by anything the respondent said in his statement. Further, there was no evidence of injuries or distress on the part of the complainer.