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SHERIFF APPEAL COURT
[2025] SAC (Crim) 1
SAC/2024/000385/AP
Sheriff Principal G A Wade KC
Appeal Sheriff W A Sheehan
Appeal Sheriff B A Mohan
OPINION OF THE COURT
delivered by APPEAL SHERIFF BRIAN MOHAN
in
Appeal by Stated Case against Conviction
by
ELAINE MURPHY
Appellant
against
PROCURATOR FISCAL, PERTH
Respondent
Appellant: Collins (sol adv); Collins & Co (for McKennas Law Practice, Glenrothes)
Respondent: Harvey, AD; the Crown Agent
11 March 2025
Introduction
[1]
The appellant was convicted at Perth Sheriff Court on 16 September 2024 of
assaulting JM, an 88-year-old resident of a care home on 15 March 2023. She appeals against
conviction and contends that the sheriff erred in (i) repelling her no case to answer
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submission upon conclusion of the Crown case and (ii) convicting her of the assault on the
evidence.
Facts
[2]
The sheriff held the following facts admitted or proved after trial:
i.
The complainer is [JM]. At the date of the incident, he was 88 years of age.
He suffers from dementia and he is a resident at [the care home]. His behaviour can
be challenging and he frequently shouts, bangs his mug on the table and is known to
lash out from time to time.
ii.
At the time of the incident, JM was in his bedroom, sitting in his chair. He is
unable to mobilise alone and he requires assistance. Furniture in the room comprises
a single bed, a storage unit and a chair. Each bedroom is equipped with an
emergency alarm.
iii.
On 15 March 2023, the appellant had attended the care home in order to cut
various residents' hair, of which JM was one. She had been doing so since in or
about 2018. She had frequently cut JM's hair in the past.
iv.
On 15 March 2023, the staff on duty included [CS and MH, both staff at the
care home]. At or about 11.30am, MH had been working on the computer at a
workstation in the corridor adjacent to JM's bedroom. She had heard JM banging
and shouting "go away", but this was not out of the ordinary. She had seen JM
sitting in his chair, with the appellant attending to his hair. The appellant had been
standing in front of him, slightly to the left. JM had attempted to spit at the
appellant. The appellant had said "Don't lash out at me again" and "Don't spit at
me". JM had swung his arm at the appellant.
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v.
At or about 12.30pm, the appellant had attended at CS's office to be paid.
MH had also been present. The appellant had said that she had had a problem with
JM. She said that his behaviour had been "challenging and behavioural"; he had
been "spitting and hitting". The appellant had, in the course of that conversation,
volunteered that "he hit me, so I hit him back". CS had asked if she was joking and
the appellant had responded, "No, I'm not" and she had made a gesture of a
sideways punch or jab.
vi.
The appellant made no reference at that time to having put her hands up
towards JM in self-defence.
vii.
Shortly after that, the appellant had left. CS had gone to see JM but she was
not surprised that he recalled nothing of that incident. JM appeared calm and
relaxed with nothing out of the normal.
viii.
JM being unable to move from his chair, there was a means of escape
available to the appellant.
ix.
On Friday 31 March 2023, the appellant had been cautioned and interviewed
by police officers. She had confirmed her name and that she had worked for 10 years
in her capacity as a hairdresser and made the comment:
"Basically, [JM] punched me a couple of times, really hard. After the first
punch, I asked [JM] not to punch me again as it was sore. When he punched
me for the second time, I put my hands up in self-defence to stop the punch
from hitting my body again. With reference to the conversation in the office, I
cannot remember what I said or what the conversation was about. I was in
complete shock after the incident and wanted out of the situation."
x.
On 15 March 2023 at [the care home] the appellant assaulted JM by punching
him on the body.
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The trial
[3]
Upon conclusion of the Crown case, the appellant submitted, in terms of section 160
of the Criminal Procedure (Scotland) Act 1995, that there was no case to answer due to the
lack of any eyewitness testimony of any assault or any evidence from JM.
[4]
The sheriff held that there was a case to answer. CS and MH had given evidence of
an unequivocal and uninvited admission by the appellant within CS's office, which the latter
had confirmed when challenged by CS. CS also gave evidence of the appellant's gesture as
to how she had struck JM. In addition, MH had witnessed an interaction earlier between JM
and the appellant.
[5]
Even if those adminicles of evidence were not sufficient on their own, the sheriff
considered that the appellant's later statement to the police (quoted at finding in fact (ix))
was an admission of some interaction, albeit by way of self-defence, and that there had been
some physical exchange for which she had to account: Gilmour v HM Advocate 1994
SCCR 133. That evidence could corroborate the appellant's earlier admission to CS and MH.
[6]
Subsequent to the sheriff repelling the "no case to answer" submission, the appellant
gave evidence in her defence. She led no other witnesses. After considering the evidence,
the sheriff convicted the appellant of assault.
Submissions for the appellant
[7]
The appellant accepted that finding in fact (v) the appellant's admission to CS and
MH - was one source of evidence for the purposes of sufficiency. The issue, however, was
what other evidence was available to corroborate that admission.
[8]
Neither the appellant's physical demonstration to CS of how she struck JM nor her
statement following caution and charge could corroborate the admission made to CS and
5
MH. A second confession, or multiple confessions, made by an accused, even if in different
terms and made to other persons, is not sufficient for the purpose of corroborating an
offence, since both - or all - confessions emanate from the same source: Callan v HM Advocate
1999 SLT 1102.
[9]
The only adminicle of evidence left for the Crown to rely upon was MH's evidence as
set out at finding in fact (iv). There was nothing within that finding to suggest any
aggressive behaviour by the appellant at the point MH saw them. MH's evidence simply
confirmed the appellant was cutting the complainer's hair and that he was spitting and
lashed out at the appellant. Significantly, the appellant was not seen to strike JM by MH.
[10]
As to whether the sheriff was entitled to convict, it was conceded that if the sheriff
was held to have been correct to repel the no case to answer submission, he had been
entitled to convict the appellant. Conversely, if the no case to answer submission ought to
have been upheld, then the sheriff was not entitled to convict the appellant.
Submissions for the Crown
[11]
There was a sufficiency of evidence based on (1) the appellant's admission to CS and
MH (2) MH's evidence of having heard and seen an exchange between the appellant and JM
and (3) the terms of MH's reply to caution and charge. The appellant took no issue with the
proposition that the appellant's admission in the office provided a source of evidence.
Thereafter, all that was required was a second source of evidence that supported or
confirmed the account of the crime provided by the admission: Lord Advocate's Reference
No. 1 of 2023 2024 JC 140 at paragraphs [235] and [239]. That second source of evidence did
not require to be more consistent with guilt than with innocence.
6
[12]
MH's observations of the appellant in JM's room demonstrated an altercation
between JM and the appellant. The appellant's verbal response to JM could be inferred to be
an altercation. It suggested a mutuality in the interaction between the appellant and JM. It
could therefore support or confirm the appellant's admission to CS and MH: Gilmour v HMA
1994 SCCR 133 at 135D-E.
[13]
Initially, it was suggested by counsel that the appellant's comments in the police
station also provided corroboration. However, after considering Callan, counsel accepted
that the statement by the appellant in response to her caution and charge could not
corroborate the assault. However, it was an adminicle of circumstantial evidence, in
addition to MH's evidence of an altercation which was available to the sheriff when
assessing the evidence as a whole. While the statement the appellant gave to the police did
not contain any admission of an assault, it provided further evidence of an altercation
between the appellant and JM.
[14]
Whether approached from the basis of considering whether there was sufficient
evidence to corroborate the appellant's admission to CS or MH, or whether one regarded the
case as a circumstantial one in which the admission was an essential ingredient, there was a
sufficiency of evidence: Greenshields v HM Advocate 1989 SCCR 637 at 643D and 644D-E.
[15]
As to the question of conviction, there was sufficient evidence to entitle the sheriff to
convict the appellant of the assault.
Decision
[16]
This was an unusual case. The "complainer" JM was an elderly man with dementia
who resided in a care home; he did not report an assault and did not give evidence in the
7
trial. There was no eyewitness or recorded evidence of an assault, no injury or distress
attributed to the allegation, and no de recenti statement to be considered.
[17]
The complaint of assault arose from comments made by the appellant to staff in the
care home. The appellant was a mobile hairdresser who visited the home on a regular basis
to provide her service to various residents, including JM. She had cut his hair on several
previous occasions. Because of his dementia, JM's behaviour could be difficult; he would
shout and lash out at staff and others. The accusation against the appellant was that, while
cutting his hair on the date libelled and in response to JM's challenging behaviour, she
committed an assault by punching him on the body.
[18]
The evidence of the admission by the appellant consisted of her attending at the staff
office on the late morning of 15 March 2023, complaining about his behaviour and then
saying "[J] hit me and I hit him back." When a manager asked if she was joking, she
responded "No, I'm not." and made a gesture indicating a punch. She said nothing about
defending herself. Those comments were capable of being regarded by a fact-finder as an
admission of an assault. However, no matter how many people heard the admission, it
remained only one source of evidence: Callan v HMA 1999 SLT 1102 (at p.1105, G I);
Davidson on Evidence (W Green, 2007) at p.701; Walker and Walker on Evidence
(5th edition, Bloomsbury 2020) at para 6.9.1.
[19]
The sheriff took the view that, as an admission was made by the appellant to two
care workers who both gave evidence to that effect, that represented two sources of
evidence. In so deciding, the sheriff erred. However, notwithstanding that error by the
sheriff, the first question before the court remains: was there a sufficiency of evidence
against the appellant in relation to the charge?
8
[20]
The first source of evidence regarding the commission of the assault was the
admission made by the appellant in the staff office. For corroboration, we were directed by
the Advocate Depute towards the sheriff's Finding in Fact (iv). The source of this was the
oral evidence of MH regarding her observation of the interaction between the appellant and
JM while he was having his hair cut. We are bound to say that we did not consider that all
of the facts highlighted there were capable of corroborating the allegation of assault.
[21]
The context here is important. The complainer was an elderly resident in a care
home and had dementia. MH told the court that he shouted at both her and the appellant
when she checked in his room, having been alerted by his shouting. So the findings that JM:
banged the table; shouted "Go away"; tried to punch the appellant and spat at her were not,
in the context of this case, facts which were capable of supporting an allegation of assault by
the appellant on him. The appellant had good reason to be there (to cut his hair). He
suffered from dementia. Sadly, difficult, aggressive and unpredictable behaviour by him
was the norm. In those circumstances, the aspects of his behaviour listed immediately above
could not be seen as evidence of his reaction to an assault on him.
[22]
Gilmour v HMA 1994 SCCR 133 provides authority that, if there is evidence of an
altercation between an accused and a complainer, this can corroborate an allegation of
assault. In that particular case, the reply noted by the accused to caution and charge was
"Honest, she stung me wi' a stick." In the judgment of the court at p.135D Lord Hope
observed:
"The appellant's response to caution and charge made it clear that he was involved
in some kind of an altercation with the complainer in the course of the incident to
which the charge referred."
[23]
The supporting evidence does not need to corroborate the actual assault. It merely
needs to be supportive of, or to fit with, the main source of evidence about an essential fact:
9
Lord Advocate's Reference No.1 of 2023 [2023] HCJAC 40; 2024 SCLR 140 (approving the line of
authority which followed from Fox v HMA 1998 JC 94). At para [220] of Lord
Advocate's Reference No.1, their Lordships observed:
"Of critical importance, the corroborating circumstances do not require to be
incriminating in themselves."
[24]
In our view an `altercation' which provides corroboration is not a one-sided event.
There has to be a degree of mutuality, a bilateral exchange. In this regard, the evidence of
the appellant's comments towards JM are relevant. The evidence from MH was that the
appellant leaned into the complainer's "personal space" and said "don't lash out at me
again." and "don't spit at me" in circumstances where matters had become heightened by
the elderly complainer's outbursts.
[25]
In her reply to caution and charge the appellant accepted that there had been an
incident. Her comments to the police described an assault on her; plainly that part of her
reply cannot be taken as an admission of an assault by her, since her description was that JM
punched her, and she "put [her] hands up in self-defence". However, her comment "after
the first punch I asked [JM] not to punch me again as it was sore." supports the evidence of
MH about there having been an altercation i.e. that there was some mutuality in the
exchange.
[26]
While the evidence of those comments regarding an altercation is not per se evidence
of an assault by the appellant, we have concluded that, following the authorities cited above,
it was capable of providing corroboration of the appellant's admission in the staff office.
Consequently, we have concluded that, while the sheriff erred in deciding that corroboration
came from two witnesses hearing the appellant's admission, he did not err in repelling the
submission of no case to answer. There was corroborated evidence of an assault. The first
10
piece of evidence was the admission by the appellant made to CS and MH that she had hit
the complainer. Corroboration came from the separate evidence of an altercation. That
evidence came from, firstly, MH's observations of the interaction between the appellant and
the complainer and, secondly, the appellant's own comments to the police in reply to
caution and charge. Taken together, these pieces of evidence amounted to a sufficiency.
[27]
After the sheriff refused the submission, the appellant gave evidence on her own
behalf. The sheriff notes the detail of this at paragraphs [21] and [22] of the stated case. She
told the court that she had been punched by the complainer. She denied that she had hit
him and denied that she had said so to CS and MH. She could not explain where that
suggestion may have come from. She did not say to the court that she acted in self-defence.
[28]
The assessment of the credibility and reliability of the witnesses was a matter for the
sheriff as the fact-finder. He was entitled to believe the Crown evidence about the assault
and to reject the appellant's account. In particular the sheriff noted that, on the evidence
before him, the appellant told care home staff that she had struck the complainer, then told
police that she only put up her hands in self-defence to stop blows, but then in evidence said
that she had "put her hands up to squeeze past him" (paragraph [22] of the stated case). The
sheriff was entitled to consider those different accounts when assessing credibility and
reliability. He did so and was therefore entitled to convict.
[29]
After convicting the appellant of the charge, the sheriff admonished her on the
complaint. There is no appeal against sentence.
[30]
The questions posed in the stated case were
i.
Did I err in rejecting the submission by the appellant's agent in terms of
section 160(1) of the Criminal Procedure (Scotland) Act 1995?
ii.
On the facts stated, was I entitled to convict the appellant?
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For the reasons given we answer the first question in the negative and the second in the
affirmative. In doing so, we accordingly refuse this appeal against conviction.
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