William Bain v. His Majesty’s Advocate [2024] HCJAC 16

Note of appeal against conviction:- On 7 July 2023, following a trial at Glasgow High Court, the appellant was convicted of a contravention of section 1 of the Domestic Abuse (Scotland) Act 2018 in relation to conduct between July and December 2021 comprising of various assaults against his partner including head-butting the complainer, spitting on her, pushing her, compressing her neck, dragging her from one room to another, attempting to push her over a wall, taking money from her, brandishing a knife at her and striking her on the head and body with a hammer, and also to damaging her property and also an allegation that whilst she was asleep and intoxicated and unable to consent he penetrated her anus with his fingers and penis. Following the obtaining of a Criminal Justice Social Work Report the appellant was sentenced to an extended sentence of 13 years comprising of a custodial element of 9 years and an extension period of 4 years. In relation to the allegation of non-consensual anal intercourse there was no direct corroboration, however, there was corroboration of other aspects of the libel including the physical assaults by way of noted injuries, various witnesses describing the complainer’s distress and witnesses speaking to the complainer’s damaged property. The trial judge directed the jury that they had to be satisfied that there was a course of behaviour and that at least two incidents within the course of behaviour were corroborated and if they were satisfied that other elements of the charge only spoken to by one witness were elements of the same course of behaviour then they could convict of those uncorroborated elements as well. The appellant appealed against his conviction under section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, namely, that the jury returned a verdict that no reasonable jury, properly directed, could have returned. It was accepted on behalf of the appellant that such a charge brought under section 1 of DASA could be proved by two or more witnesses speaking to two or more incidents in a course of abusive behaviour and that such incidents could involve sexual and physical violence. It was submitted, however, that allowing minor non-sexual behaviour to corroborate a serious sexual offence, which could have been libelled as rape, could result in an individual being convicted of a serious sexual offence which was not of itself corroborated. It was further submitted that there had to be a link between the serious and non-serious allegations and there was not in the present case and the directions given were inadequate resulting in a miscarriage of justice as no reasonable jury, properly directed, could have convicted the appellant of the sexual element of the charge. On behalf of the Crown it was submitted that it had been Parliament’s intention that sexual violence could form part of a course of behaviour under section 1 and there was no basis distinguishing incidents of sexual violence from other forms of abusive behaviour, regardless of how serious and it was sufficient for at least two of the incidents to be proved by corroborated evidence to enable the jury to convict of the remaining uncorroborated elements of the charge provided the jury were satisfied they were part of the same course of conduct. It was further submitted that the jury had been properly directed in accordance with recent authority (CA v HM Advocate 2023 JC 8). Here the court refused the appeal. The court noted that it had been conceded on behalf of the appellant that there was sufficient evidence. The court considered that the directions given to the jury were adequate as they were directed that they could only return a verdict of guilty on an element, including a serious sexual assault, which was only spoken to by the complainer if it was part of the same course of abusive behaviour. The court noted that the jury must have accepted the evidence of the complainer in relation to both the physical and sexual assaults and, further, that they were all part of the same course of conduct and as such it could not be said that the verdict was one which no reasonable jury could have returned.