HIGH COURT OF JUSTICIARY
OPINION OF THE LORD JUSTICE GENERAL
in
NOTE OF APPEAL
under section 110 of the Criminal Procedure (Scotland) Act 1995
by
CHARLES GRAY LAFFERTY McKENZIE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
18 December 1998
The appellant, Charles Gray Lafferty McKenzie, went to trial on an indictment containing three charges of lewd, indecent and libidinous practices and a charge which, in its final form before the jury, was a charge of aiding and abetting rape. He was acquitted of all but the charge of aiding and abetting rape. He has appealed against the conviction on that charge on the ground that the trial judge's charge to the jury contained a material misdirection.
The allegation against the appellant was that he had aided and abetted a boy to rape his sister who was under twelve years of age. Any sexual intercourse by the boy with his sister would, by definition, constitute rape by the boy. The alleged misdirection by the trial judge occurred when he was explaining this point to the jury.
It is important to appreciate the structure of the judge's charge. He began, in the usual way, by giving the standard general directions. He then said that he was turning to matters on which he required to direct the jury in connexion with the particular case. He introduced those particular directions by saying
"I shall start with the definition of various matters which arise from the terms of the indictment. It would be convenient if you would have the amended copies in front of you."
The trial judge proceeded to go through the charges in the order in which they appeared on the indictment, explaining to the jury the legal concepts involved. No issue arises, of course, in relation to those aspects of the judge's charge. He came to the charge on the indictment with which this appeal is concerned and began his directions with these words:
"Now, charge (4) - which is, of course, the next one, now that charge (3) is no longer before you - refers to two occasions on which the accused is said to have assaulted L - and you will remember the definition I've already given you of assault - and it goes on to say that he removed her clothing and aided and abetted her brother, A, to have sexual intercourse with her in the accused's presence and while the accused recorded the actions of A on video tape and the accused, it says, did thus rape L.
I'd like to start again with a reminder of what constitutes rape for present purposes. For any male to have sexual intercourse with a female under the age of 12 is rape in law. And your starting point here is that by having sexual intercourse with his sister, A raped L. Indeed, they both committed incest. It's not suggested that there will be any consequences for them but you must take that as your starting point, that it was a crime for him to have sexual intercourse with his sister."
After this the judge went on to give the jury directions on what constitutes aiding and abetting. No criticism is made of that part of the directions. The critical passage, which is said to constitute a misdirection, is contained in the second half of the passage which I have just quoted. Mr. Burns, Q.C., who appeared for the appellant at the appeal, readily accepted that, in that critical passage, the trial judge had not intended to suggest to the jury that they should start their consideration of Charge 4 by taking it as established fact that A had intercourse with L. His argument was simply that, because of the language which he had inadvertently used, the jury would have been liable to assume that this was what he was telling them.
I readily accept that, if looked at in isolation on the cold page, the passage would tend to suggest that the jury should take as their starting-point the fact that A had sexual intercourse with L and therefore must be held to have raped her; in addition both of the children had committed incest. I also accept that, if the jury had formed that impression, it would be reinforced by the following sentence in which the judge says that it is not suggested that there "will be" any adverse consequences for them, but none the less that is where the jury must start.
That is how the passage would be interpreted if it were torn out of its context in the charge and if the background of the trial were ignored. As the Advocate Depute stressed, however, the passage does not occur in isolation and the jury would not have listened to it in isolation. Nor should an appellate court judge it in isolation. In reality the passage occurs in the course of that part of his charge in which, as he has clearly signalled to them at the outset, he is giving them directions on the definition of various matters which arise in the indictment. If a jury heard the critical passage in that context, then, while it is possible that they would have misunderstood what the judge intended, I do not consider that it is probable. Given the context in the directions on the terms of the indictment and given the background of the speeches for the Crown and defence in which the opposing stances were argued out, it seems to me unlikely that, when they heard this passage, the jury would have thought that the judge was suddenly giving them a direction in law that they must somehow simply assume that A had sexual intercourse with L.
In judging the significance of the passage it is necessary, of course, to consider not only what the judge had said earlier in his charge but also what he said afterwards. Mr. Burns did not suggest that any other passage reinforced what he submitted was the misleading impression created by the critical passage. On the other hand the Advocate Depute drew attention to a passage in the judge's directions on corroboration which, he said, contained a clear direction that it was up to the jury to decide whether they accepted the evidence of the children. The passage in question is in these terms:
"But they described what took place on two occasions between them with the accused present and doing various things. So you have two sources of evidence in A and L. You can relate their evidence to each other and, if you accept it, you could find corroboration, each corroborating the other in respect of the events in question. As a matter of law you would be entitled to conclude that A raped L in the sense in which I've defined it to you, and you must not shrink from putting it in that way."
Mr. Burns did not dispute that in this passage the trial judge was indicating to the jury that it was a matter for them to decide whether they accepted the evidence of the two children as to the events in question. He maintained, however, that the mere fact that the judge had approached the matter correctly in this part of the charge did not matter, since this later passage was not sufficient by itself to correct the misleading impression created by the critical passage earlier in the charge.
As counsel acknowledged, the jury would understand from this direction that it was a matter for them to decide whether they accepted the evidence of the children about the events to which they had spoken. This direction forms an important part of the overall context within which the likely effect of the critical passage falls to be considered: in my view it constitutes a further reason for saying that a jury which considered the terms of the judge's charge as a whole - including the critical passage - would not have proceeded on the view that he had directed them to reach their verdict on Charge 4 by simply assuming that the children had had sexual relations. That conclusion is reinforced by a later passage where the trial judge explained that the jury would be entitled to find proved on the basis of the evidence and added:
"But that is only if you accept the evidence to a sufficient extent, and that's entirely a matter for you, as I've already explained".
In support of his argument that the critical passage contained a material misdirection, Mr. Burns pointed out that the jury had deleted the averments that the appellant did "remove her clothing" and that the intercourse took place while the accused "recorded the actions of said A P on video tape". These deletions showed, he said, that the jury had not treated the children's evidence as reliable and that made it all the clearer that they must have returned their verdict, finding that the intercourse had taken place, only because of the misdirection in the critical passage.
In my view the form of the verdict does not support that inference as to the jury's approach. At its highest, the supposed misdirection would have meant that a jury who rejected the children's evidence would none the less have found that the intercourse had taken place. Here the jury went much further, however. They found not just that intercourse had taken place, but that the appellant had aided and abetted that intercourse. They can have reached that conclusion only by accepting the evidence of the children that the appellant aided and abetted A in what he did. The fact that they chose to delete certain of the averments does not detract from that conclusion, but simply shows that their verdict was a discriminating verdict. If then the jury applied their mind to the evidence and accepted that it showed that the appellant aided and abetted A, they must also have been satisfied that, in pursuit of a common purpose with the appellant, A did the very thing in which the appellant aided and abetted him, viz. had sexual intercourse with his sister. It seems to me wholly unrealistic to suggest that a jury would have found that the appellant aided and abetted A in raping his sister unless they themselves had been satisfied that A had actually had sexual intercourse with her.
Another aspect of the form of the verdict supports that approach. At one point during their deliberations the jury returned and asked the judge for a direction as to whether they should delete the word "assault" from the charge if they decided to delete the words "remove her clothing". (This perceptive request indeed illustrates the care with which the jury were approaching their task, since it shows that they were considering the implications of the direction which the trial judge had given them in a single sentence to the effect that they would be entitled to find that the accused assaulted L by taking the step of removing her clothing.) The trial judge gave quite an elaborate direction in response to this request. He told them that even without removing her clothing
"it would be open to you to hold that there was an assault if he aided and abetted A to have sexual intercourse with L and thus rape her and this was, in the case of A, some form of attack on L, that is to say if L was not consenting to it but through the use of force or threats or simply pressure of the occasion found herself involuntarily having sexual intercourse with A. Now, if that is the situation, and if that is a respect in which the accused contributed to the act of sexual intercourse, that is to say if he participated in the common purpose of A's having sexual intercourse against L's will, that could be described as a form of attack on L and therefore as an assault for present purposes. So, it would be open to you to leave out the bit about removing her clothing, if you felt disposed to do that and nevertheless, leave in 'assault' if you felt that his participation in the rape of L was such as to constitute a form of attack on L, either by himself or by A if they were acting together in furtherance of this common purpose, as I've tried to explain it to you."
It may be that this direction was unduly favourable to the defence on the view that, with a girl under twelve who could not consent, any intercourse would constitute an assault. For present purposes what matters, however, is that the judge told the jury that they could leave in the word "assault" if they formed the view that what A did constituted some form of attack on L - if L was not consenting to it but through the use of force or threats or simply the pressure of the occasion she found herself involuntarily having sexual intercourse with A. Having been given that direction, the jury deleted the reference to removing L's clothing but left in the word "assault". The obvious implication is that they must have found that A's intercourse constituted some form of attack on L, because L found herself submitting to intercourse either due to force or threats or the pressure of the occasion. That aspect of the intercourse was not mentioned, however, in the critical passage of the judge's charge relied on by the appellant. The form of their verdict therefore shows that the jury must themselves have reached the view, on the evidence, that intercourse - and, more precisely, intercourse of this particular kind - actually took place.
For these reasons, and despite the attractive argument on behalf of the appellant, I have reached the view that the judge did not misdirect the jury on the way in which they should reach their verdict. I therefore move your Lordships to refuse the appeal.
HIGH COURT OF JUSTICIARY
OPINION OF THE LORD JUSTICE GENERAL
in
NOTE OF APPEAL
under section 110 of the Criminal Procedure (Scotland) Act 1995
by
CHARLES GRAY LAFFERTY McKENZIE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______