APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C931/97
OPINION OF THE COURT
delivered by LORD HAMILTON
APPEAL AGAINST CONVICTION and SENTENCE
HER MAJESTY'S ADVOCATE
Appellant: Scott; Peacock Johnston
Respondent: Menzies, Q.C., A.D.; Crown Agent
21 July 1999
The appellant went to trial in the High Court at Glasgow on an indictment containing three charges. The first was a charge of shamelessly indecent conduct towards a boy, S, on various occasions over a period of about 12 months. The second was a charge of shamelessly indecent conduct towards another boy, A, on various occasions over a period of about 41/2 years. The particulars of that charge included averments that the appellant had penetrated the boy's hinder parts with his private member and had had unnatural carnal connection with him. The third was a charge of shamelessly indecent conduct towards a girl, J, on various occasions over a period of about 41/2 years. S, A and J were siblings. The appellant was a friend of their parents.
At the conclusion of the trial the appellant was convicted on all three charges and was sentenced to 10 years imprisonment. He has appealed against both conviction and sentence. At the hearing of the appeal, Miss Scott, who appeared then on his behalf, intimated that the appeal against conviction was to be restricted to the appellant's conviction on the second charge, with particular reference to the disposal by the trial judge of an application made under section 275 of the Criminal Procedure (Scotland) Act 1995.
In the course of his evidence in chief A had given detailed and explicit evidence of sexual misconduct by the appellant towards him on numerous occasions when he was between about 10 and about 14 years old. At the date of the trial A was 15 years of age. The conduct to which he spoke in evidence included the appellant removing the boy's trousers and pants, fondling the boy's naked private parts, exposing his own private member to him, lying on top of him (both when he was prone and when he was supine) and simulating sexual intercourse. The conduct spoken to then progressed over time to the appellant having unnatural carnal connection with him on repeated occasions both in the appellant's home and at certain places of work to which the appellant had taken him.
At the end of his evidence in chief counsel then appearing for the appellant (who was not Miss Scott) made an application to the court to allow A to be questioned as to whether he had engaged with another person in sexual behaviour not forming part of the subject matter of the charge. On presenting the application counsel said:
"...what I propose to do as part of my cross-examination is to put questions to him which are designed to explain the knowledge he has, the quite detailed knowledge with regard to the sexual matters that he's described, and what I am instructed to do in relation to that is to put to him that he has in fact been involved in a sexual relationship with another person and that it is as a result of that going on for some time that he in fact obtained the knowledge that he has in order to describe what he now complains happened to him at the hands of [the appellant]".
In the course of the discussion which followed counsel stated that the information available to her was that from about the age of 12 A had been involved in a sexual relationship with a named social worker, that they had been to various places together and had slept together, that A had discussed this relationship with the appellant on several occasions and had made at least one admission to him to that effect. No reference was made in the course of this discussion to a medical report lodged by the Crown and subsequently spoken to in evidence by a Crown medical witness which described various injuries, external and internal, to A's back passage which in the witness's opinion could only have been caused by penetration by some object and were consistent with penetration by an erect penis.
The application was presented under paragraphs (a) and (c) of section 275(1) which provides:
"Notwithstanding section 274 of this Act, in any trial of an accused on any charge to which that section applies, where the court is satisfied on an application by the accused -
(a) that the questioning or evidence referred to in subsection (1) of that
section is designed to explain or rebut evidence adduced, or to be adduced, otherwise than by or on behalf of the accused;
(c) that it would be contrary to the interests of justice to exclude the
questioning or evidence referred to in that subsection,
the court shall allow the questioning or, as the case may be, admit the evidence".
Section 274, which was accepted to be applicable, prohibits, subject to section 275, inter alia the admission of evidence or the allowance of questioning designed to elicit evidence which shows or tends to show that the complainer has at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge.
In the course of the discussion, after counsel had specified the information which formed the basis for the application, the trial judge observed "that doesn't explain anything happening at 10 years of age". The advocate depute opposed the application, contending that section 275(1)(c) had not been satisfied by any material placed before the court and that, as regards section 275(1)(a), an alleged sexual relationship with the social worker commencing some two years after the commencement of conduct involving the appellant could not explain or rebut the evidence adduced. The trial judge refused the application. In his report to us he gives the following explanation:
"I refused the application on the basis that the matter sought to be put allegedly occurred when the complainer was twelve, whereas the abuse had started when he was ten. Thus any knowledge he had obtained thereby was not prior knowledge".
Miss Scott, in presenting the appeal, submitted that the trial judge's ground of decision was unsound. The issue was whether A's ability at the age of 15 to give such a detailed and explicit account of sexual conduct as he had given in evidence in chief was to be explained by his experiences with a man other than the appellant. It was immaterial whether such experiences had commenced before or after any experiences with the appellant. It was sufficient if they had occurred prior to the trial. She also made a related submission in respect of the omission of counsel at the trial, when making the application, to refer to the medical report.
The advocate depute, in inviting us to refuse the appeal, acknowledged that the trial judge had misdirected himself in determining the application on the basis which he had. However, he invited us to consider whether this was an application which on other grounds might have been refused. He submitted that the matters spoken to by A in evidence in chief were not such that he could only have acquired knowledge of them by direct experience; they were such that an adolescent might have acquired sufficient knowledge of them from other sources. It was also, he submitted, relevant to take into account that child witnesses should, consistently with a fair trial, be protected against distressing questioning. The application of section 275 involved an exercise of discretion (Bremner v. H.M. Advocate 1992 S.C.C.R. 476). As to Miss Scott's related submission, he submitted that this in effect amounted to an attack on the conviction based on the principles discussed in Anderson v. H.M. Advocate 1996 S.C.C.R. 114. Tactical decisions in the conduct of a defence were matters for counsel at the trial. There had been no reference in the only ground of appeal now insisted on to an Anderson ground of challenge. The observations of counsel conducting the trial had not been obtained on this aspect.
In our view the trial judge's reason for refusing the application was plainly unsound. The critical issue under section 275(1)(a) was whether the proposed line of questioning was designed to afford an alternative explanation for the explicit and detailed evidence given by A in examination in chief, and in particular for his ability to give such evidence at the age of 15. The circumstance that the alleged sexual relationship with the social worker was alleged to have commenced at the age of 12, some two years after the commencement of the alleged conduct by the appellant, was irrelevant to A's ability to give the evidence which he had given at the trial. Both alleged experiences occurred prior to the trial (and indeed prior to A first making any allegation against the appellant). The application of section 275(1) involves a judgment reached after weighing relevant considerations. A refusal based on an irrelevant consideration constitutes a misdirection which may lead to a miscarriage of justice.
In contending that there had in this case been no miscarriage of justice the advocate depute (who was not the advocate depute appearing at the trial) invited us to have regard to other considerations (mentioned above) which were, he submitted, relevant to the exercise of the particular discretion. None of these considerations was, however, urged by the advocate depute at the trial; they formed, so far as appears, no part of the trial judge's reasoning. We do not regard it as appropriate for us to speculate as to what might have been the outcome of an application addressed on other considerations. It is sufficient that a duly addressed application was not bound to fail. In such circumstances what is material to the issue of whether or not there has been a miscarriage of justice is the consequence for the trial of the misdirected refusal.
As a result of that refusal the appellant's counsel was unable to question A about his relationship with the social worker. Counsel had been furnished with information about that relationship as earlier mentioned. The source of that information was primarily the appellant, though Miss Scott informed us that precognitions bearing on this issue had also been obtained from A's father and from the social worker. The former had apparently confirmed that A had been friendly with the named social worker, had stayed at his cottage, had received presents from him and had been found by police officers alone with A in a car parked in a dark lane; A's father, it was said, had forbidden A to see the social worker. The social worker on precognition had accepted that he had spent time with A, that he had a cottage and that A might have been there; he had also accepted that he had been in a car with A but had given an innocent explanation for this; he had denied any sexual impropriety towards A.
The credibility of A and of the appellant (who subsequently gave evidence at the trial) was crucial to the jury's consideration of charge 2. The jury heard no evidence of any relationship between A and any other man. The advocate depute in addressing them on the evidence asked rhetorically what possible reason could there be for any of the children, including A, making up such serious allegations of the nature of those spoken to. If counsel for the appellant had been allowed to cross-examine A about any relationship with the named social worker, his responses might have reflected on his credibility and might have afforded an alternative explanation for the evidence which he had given in chief. Likewise the credibility of the appellant (who was of course, in light of the ruling, not asked in evidence about anything A had told him about the social worker) might have been affected. Similarly, there might have been an alternative explanation for the medical evidence. The only evidence before the jury was that, if A had had a sexual relationship with any male adult, it was with the appellant. In these circumstances we are satisfied that the misdirection led to a miscarriage of justice and that the conviction on charge 2 must be quashed.
It is unnecessary to say anything about the application so far as rested on section 275(1)(c) - which appears not to have been strenuously pressed. Nor is it necessary or appropriate to say anything about the omission of counsel, when making the application, to refer to the medical report.