INGRAM, APPEAL AGAINST CONVICTION BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_16 (25 January 2018)

BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish High Court of Justiciary Decisons


You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> INGRAM, APPEAL AGAINST CONVICTION BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_16 (25 January 2018)
URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_16.html
Cite as: [2018] HCJAC 16, [2018] ScotHC HCJAC_16

[New search] [Context] [View without highlighting] [Printable PDF version] [Help]


Page 1 ⇓
Lady Paton
Lord Brodie
Lord Turnbull
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2018] HCJAC 16
HCA/2017/000583/XC
OPINION OF THE COURT
delivered by LORD TURNBULL
in
APPEAL AGAINST CONVICTION
by
STEPHEN INGRAM
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: C Fyffe (sol adv); Bruce Short & Co (Dundee)
Respondent: I McSporran QC (sol adv), AD; Crown Agent
25 January 2018
[1]       The appellant Stephen Ingram was convicted after trial of the two charges on the
indictment which he faced. Each offence took place on 29 December 2016 at 109 Kingsway
East, Dundee. The victim in each charge was said to be the appellant’s then partner
Melissa Edgar. Charge 1 on the indictment was a charge of behaving in a threatening or
abusive manner, likely to cause a reasonable person to suffer fear or alarm, contrary to
Page 2 ⇓
2
section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. Charge 2 on the
indictment was a charge of assault by striking Ms Edgar on her face. Both offences were
said to have been committed whilst on bail.
[2]       The appellant has appealed against conviction, on both charges, on grounds which
argue that there was insufficient evidence of identification in connection with either charge
and that there was insufficient evidence of an assault having occurred in relation to charge 2.
He submits that the sheriff erred in repelling the submission of no case to answer made in
respect of both charges at the conclusion of the Crown case.
[3]       The evidence led before the sheriff is set out in the report which he prepared for this
court. Ms Edgar gave evidence and explained that she had been in an on-offrelationship
with the appellant for around 10 years. She denied that she had been assaulted and denied
that the appellant had been present in her flat on the night of 28 to 29 December 2016.
[4]       Her evidence was that, having consumed a box of wine whilst watching a movie, she
became intoxicated and fell asleep. When she awoke in the early hours of the morning she
tried to contact the appellant by telephone in a state of some anger as a consequence of
learning that he had gone socialising to Newcastle without telling her. She had a
smartphone which was paired to an amplified sound bar on her television system. When
she was able to make contact with the appellant the sound of him speaking could be heard
in the flat as it was broadcast through the television loud speaker. She was hysterically
angry, shouting and screaming at him over the phone. She made so much of a disturbance
that she woke up her children, who began to shout and cry. On going into the bedroom to
calm them she blundered around in the dark and fell over some toys. She suffered a nose
bleed but was not exactly sure how this had happened. She was aware of neighbours
shouting and banging on her door and she had opened a bedroom window to shout to
Page 3 ⇓
3
another female neighbour, thus leaving some blood on the windowsill from her bleeding
nose.
[5]       Against this, the Crown relied on the evidence of certain of Ms Edgar’s neighbours
and of police officers who attended. The witness Maureen Baker lived on the ground floor
of the property, immediately below the flat occupied by Ms Edgar. Around 2.00am she was
woken by the sound of shouting and heard Ms Edgar and a male arguing. She identified the
male voice as that of the appellant, whom she knew. She also heard footfall associated with
the disturbance and was satisfied that this was the sound of two separate people. She heard
Ms Edgar screaming, including hearing her cry out for help, she also heard her children
screaming, she heard thuds and bangs like someone hitting doors or perhaps the floor and
sounds she believed to be consistent with furniture being knocked over. Ms Baker was also
aware of another of her neighbours, Ryan McCallum, pounding on Ms Edgar’s door
shouting “he’s battering her”. Ms Baker began recording the events on her phone and called
the police. She then waited in the common stairwell for their arrival. No one passed the
witness in the stairwell prior to the arrival of the police. However, she became aware of the
appellant outside the flat at his car. He came away from the car, as if intending to go
towards the block entrance, but when Ms Baker told him that the police were coming he
jumped in the car and drove off. Ms Baker then saw Ms Edgar in the stairwell, her face was
red, her nose was bashed up and her eyes were puffy.
[6]       The witness Ryan McCallum was woken by the sound of a disturbance. On going
out on to the mutual landing he heard Ms Edgar, whom he knew, shouting for help. He
called out to her, and she replied “Ryan help me”. The flat door was locked and he could
not open it but could hear her and her children continuing to scream and shout from inside.
He formed the view that she was being attacked by a male inside the flat. He knew that the
Page 4 ⇓
4
appellant had a small red car and on looking out of a window he saw that car in the street
beside the flats. He saw it driving off when police sirens were heard. In court this witness
listened to the recording which the witness Baker had made of the incident and agreed that
a female voice could be heard shouting “Stephen” and that a male voice could also be heard.
[7]       Other neighbours who gave evidence also spoke to Ms Edgar’s condition when she
emerged from her flat. She and her children were taken into a neighbour’s property. She
was variously described as a being very distressed, sobbing and with blood visible on her
nose and mouth, seeming to be in shock and largely unresponsive and having clammed up.
One of these witnesses, who lived on the same level as Ms Edgar, confirmed that it would be
possible to drop down the outside of the building from one of the windows.
[8]       As police officers approached the scene in a marked police vehicle with its blue lights
flashing they became aware of a male who was seen to jump into the driver’s seat of a red
Volkswagen hatchback vehicle and to speed off. One of those officers identified the driver
as the appellant.
[9]       On attending at Ms Edgar’s flat the police officers noted flesh blood spatters.
Upturned furniture was seen, including a table having apparently been knocked over in the
sitting room with the items which had been on it strewn on the floor. There was a pool of
blood in the bathroom and signs of disturbance in the bedrooms with drawers pulled out
and a mattress off its base. Blood was noticed on the windowsill of the open window in the
bedroom. No one else was in the flat. Ms Edgar was spoken to and was seen to have
swelling across the bridge of her nose and to be bleeding from the nostrils. The police
officers formed the view that she had been struck in the face.
[10]       In careful and thoughtful submissions, Mr Fyffe argued on behalf of the appellant
that there was insufficient evidence of an assault. The case could be distinguished from the
Page 5 ⇓
5
cases of Healy v Vannet 2000 SCCR 35 and Dewar v Her Majesty’s Advocate [2017] HCJAC 31 to
which the sheriff had referred. In each of those cases there had been a single source of
evidence indicative of assault on the complainer and the question was whether that single
source could be corroborated.
[11]       In the present case he submitted there was no direct evidence of an assault. The
evidence was simply consistent with there having been a disturbance which left Ms Edgar
distressed and that she had sustained injuries. There was no basis upon which it could be
concluded that those injuries had been sustained as a consequence of an attack with evil
intent.
[12]       In relation to identification, it was submitted that the evidence of identification by
voice given by the witness Baker was uncorroborated. The evidence placing the appellant in
the vicinity but not within the flat was not capable of providing the necessary support.
[13]       In reply, the advocate depute referred to the evidence identified above and
submitted that it constituted an overwhelming sufficiency of circumstantial evidence.
[14]       In this case the Crown was in the slightly unusual position of not being able to rely
on the evidence of the person whom it alleged was the victim in each charge. The evidence
given by Ms Edgar exonerated the appellant of the charges. Had it been believed, or had it
raised a reasonable doubt about the Crown’s case, then the appellant would have been
acquitted. As it was, her evidence was plainly rejected. The question for the sheriff at the
stage of considering the no case to answer submission, and for us now, is whether there was
sufficient in the remaining evidence to entitle the jury to conclude that the charges were
established. In considering that question the evidence must be taken at its highest for the
Crown and in light of the most favourable inferences available Mitchell v Her Majesty’s
Advocate 2008 SCCR 469 at paragraph 106. In the absence of reliance on the evidence of a
Page 6 ⇓
6
victim the Crown sought to establish the commission of the crime of assault by relying on
circumstantial evidence. Each piece of circumstantial evidence does not need to be
incriminating in itself, what matters is the concurrence of testimony. The nature of
circumstantial evidence is such that it may be open to more than one interpretation and it is
precisely the role of the jury to decide which interpretation to adopt Megrahi v Her
Majesty’s Advocate 2002 SCCR 509 at paragraphs 32 and 36.
[14]       The combined evidence of the witnesses who heard a disturbance and heard
Ms Edgar screaming, including screaming for help, the evidence of the state of her property
as spoken to by the police, and the evidence of the witnesses who saw the upset and injured
condition which she was in, was sufficient in our opinion to entitle the jury to infer that
Ms Edgar had been assaulted. The evidence of the witness Ms Baker provided a source of
evidence identifying the appellant by voice in Ms Edgar’s flat during the course of the
disturbance. The real evidence of the recording which she made also established the
presence of a male within the property. The appellant was seen outside the property shortly
after attempts had been made to provide assistance, and he was observed to leave the scene
rapidly.
[15]       In our opinion these combined adminicles of evidence entitled the jury to conclude
that the assault on Ms Edgar was perpetrated by the appellant and that he was the person
responsible for committing charge 1. For these reasons we are satisfied that the sheriff was
correct to repel the submission of no case to answer made, and the appeal against conviction
on both charges must be refused.



BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_16.html