Brian Croal v. Her Majesty’s Advocate

29 April 2014

Background

On 20 June 2012, Stirling Sheriff Court found the appellant guilty of assaulting a female, MH, by repeatedly punching her head and threatening further violence. The assault happened in Fallin on 26 February 2012. Sentencing was deferred while the appellant finished a two-year Drug Treatment and Testing Order. He was eventually fined £250 on 20 February 2013.

Appeal

The appeal was on the grounds that the sheriff should have accepted a no case to answer submission. The defence questioned the competency of the second complainer’s statements used to convict Mr Croal. The second complainer, KH, insisted she had no memory of the incident or of giving a statement, due to the effects of valium and heroin. She accepted that she had talked to the police, once she had seen her signature attached to the statement she had made at the time. Furthermore, she avowed that she would have told the police the truth, regardless of the gap in her memory.

To make their case, the defence cited the dicta in A v HM Advocate 2012 JC 343: that a witness’s evidence must meet the four elements recommended by Lord Bonomy. One of these elements is that the witness remembers making a statement. This was not the case with the second complainer, KH, who claimed a drug-induced, two-day memory loss during the time the incident took place.

Conclusion

The Crown cited Jamieson v HM Advocate (No. 2) 1994 JC 251, which established that it was enough for a witness to accept they gave a true statement to police, even if they have no memory of doing so. Lord Bonomy’s four elements were an obiter dictum, meaning they had not been adopted as legal requirements. Furthermore, in this case it is plausible that KH was lying about her memory loss, to avoid giving evidence. Ultimately, she also accepted her statement has being true, meaning her evidence could be regarded as proof of fact. The appeal was therefore refused.

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