APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lady Dorrian Lord Wheatley	[2013] HCJAC 120 XJ559/13   OPINION OF THE COURT   delivered by LADY PATON   in   CROWN APPEAL BY STATED CASE   by   PROCURATOR FISCAL, GLASGOW   Appellant;   against   BARRY McGOVERN   Respondent:   _____________

 

Appellant: T Niven Smith, AD; Crown Agent

Respondent: L McQuillan, Solicitor Advocate; MMFW Partnership, Glasgow

 

11 September 2013

[1] The respondent, a care worker currently aged 36, was charged as follows:

"On 10 August 2012 at Aston Grange Care Home, Hamilton Road, Glasgow, you ... did assault AD born 15 November 1938 ... and did seize her by the body, push her to the body and sweep her legs from underneath her causing her to fall to the ground and it will be proved in terms of section 1 of the Offences (Aggravation by Prejudice) (Scotland) Act 2009 that the aforesaid offence was aggravated by prejudice relating to disability."

 

[2] The complainer, AD, a resident in the home, suffers from dementia. She was (very properly) not led as a witness. Other residents present at the time of the incident also suffered from similar problems, and were not led in evidence. The main evidence came from another care worker, Alison Reilly. The crucial parts of her evidence were that she saw the respondent "trip AD over his feet onto the floor". As the sheriff recorded her evidence at page 2 of his report, she said that the respondent turned AD round so that they were face to face with each other, and then tripped her up by putting his leg round and behind her and pushed her over his outstretched leg so that she fell backwards onto the floor and landed on her backside.

[3] The supporting witness, Angela Wallace, is noted as giving evidence that she had never actually seen the lady being put on the ground but did see her on the ground. (Page 2 of the report).

[4] The respondent was interviewed by the police. The relevant part of his interview was as follows:

Q. It is alleged that when you were hugging AD you were swaying her from side to side. Is that correct?

A. Nope.

Q. It is also alleged that after you had cuddled AD, you put your leg behind her and pushed her backwards. Is that correct?

A. No.

Q. Can you think of a reason why someone would allege that?

A. No.

Q. Why would someone say that Barry?

A. Okay, well look, I might be 35 but I can be immature at times. I was carrying on with AD and I did cuddle her. I was having a laugh and a joke because me and AD often did. I may have unintentionally caused AD to fall backwards but I really didn't mean it and I did try to grab her arm to stop her falling on the floor. I know now that it wasn't the most appropriate thing to do but I didn't mean any harm by it and I didn't mean any malicious intent.

Q. Why didn't you report it to anyone?

A. I was embarrassed by it. I didn't mean for it to happen and I knew that AD was okay so I left it.

Q. Okay Barry, just to recap, I know that you said that you didn't mean for it to happen, but did you push AD down in the lounge of the care home?

A. No, I didn't push her over deliberately. I did give her a cuddle which might have caused her to stumble over.

[5] Before us today, the advocate depute submitted that there was a sufficiency of evidence to be found in the evidence of the principal witness, Alison Reilly, supported by the care worker, Angela Wallace, who came upon the incident when the lady was already on the floor, and finally, in what he termed a "mixed statement" to the police. The advocate depute made reference to the case of Gilmour v Her Majesty's Advocate 1994 SCCR 133.

[6] Miss McQuillan for her part pointed to the fact that, in the present case, there was no evidence of any altercation or conflict. Gilmour could be distinguished on that basis. There was simply insufficient evidence of assault.

[7] In our opinion, the crucial element which would make the event an assault, namely the respondent placing his leg behind AD's legs and tripping her over onto the ground, is indeed uncorroborated. Nothing said by Angela Wallace or the respondent in interview corroborated that element. Any physical contact admitted by the respondent appears to have been what might have been expected of a carer in a home, for example attempts to assist AD, or at worst over-familiar and perhaps inappropriate behaviour by cuddling her and laughing. Certainly we note that in the respondent's statement, there was no admission along the lines of "Yes, I tripped her up, but it was accidental." Further, there was no evidence of marks or injuries on the complainer, nor any evidence of distress on her part, which again distinguishes the present circumstances from Gilmour. We therefore agree with the sheriff in his conclusion that there was no case to answer. We answer the question posed in this stated case in the affirmative and we refuse the Crown Appeal.

 

 

 

 

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