APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C702/98
OPINION OF THE COURT
delivered by LORD MacLEAN
APPEAL AGAINST CONVICTION
JAMES ANTHONY TURNOCK
HER MAJESTY'S ADVOCATE
Appellant: McCluskey; Wardlaw Stephenson Allan
Respondent: Bell, Q.C., A.D.; Crown Agent
10 August 1999
The appellant, James Anthony Turnock, was convicted by a majority of the jury of all three charges in the indictment as amended. These charges were of lewd, indecent and libidinous practices and behaviour in relation to three girls, T.F. between 2 July 1975 and 1 July 1977 when she was between the ages of 10 and 11 years; E.F. between 15 December 1973 and 16 December 1979 when she was between the ages of 6 and 12 years; and J.F. between 10 November 1975 and 16 December 1979 when she was between the ages of 7 and 11 years. He was sentenced to 4 months imprisonment on charge 1; 18 months imprisonment on charge 2; and 18 months imprisonment on charge 3, these periods to be served concurrently.
The grounds of appeal, which were expressed at length, may be summarised in this way. In the circumstances of this case, where the appellant's alleged conduct covered the period between December 1973 and December 1979, the sheriff failed properly to direct the jury that they should scrutinise the evidence of the complainers with care and that they should consider whether the defence case was prejudiced by the lapse of time. Further, the sheriff misdirected the jury by directing them that they should ignore inferences which it had been suggested arose from the behaviour of persons who had not given evidence and in particular of C.F., the father of the complainers.
It appears from the sheriff's full report that C.F. and his wife, M.K., had four children, the three complainers and a boy, C.F. They separated before 1973 when M.K. went to live in Aberdeen. Thereafter C.F. was left with the care and custody of the children. When he required inpatient hospital treatment in 1972 or 1973 the complainers went to live with their paternal grandmother, S.F., and their paternal aunt, H.F., in a house in Edinburgh. In that house there also lived their paternal uncle, I.F. The appellant began associating with H.F. in 1972 and he moved into the house in Edinburgh in 1973. Later they married. Five children were born of their union. Between 1973 and 1979 the appellant and his wife lived mostly at the house in Edinburgh. In 1979 C.F. and his family left the house to live elsewhere in Edinburgh. In the same year E.F. and J.F., while in the temporary care of their mother in Aberdeen, complained about the appellant's conduct towards them. Their mother, however, sought to implicate C.F., the children's father. Some investigations were made by the police into these allegations but no action was taken nor were proceedings taken. E.F., at the time of the birth of her child in 1986, made further allegations against the appellant.
C.F., having been divorced from M.K., married L.F. There is one child of that marriage, now aged about 14, who is called L. She lived with her father until his death in November 1996. M.K. died in 1997. Thereafter L. lived with her half-sister, J.F. When J. discovered that L. was truanting and, while absent from school, was visiting the appellant's house - she was friendly with J.T., the appellant and H.T's daughter - she and her sisters in 1997 made their allegations to the police against the appellant which formed the basis of the three charges in the indictment. Evidence was led that the appellant and C.F. became aware sometime after 1979 of the allegations which E. and J. made about the appellant's conduct towards them. Despite that knowledge it appears that, at least until very shortly before his death, C.F. was on good terms with the appellant, and that he regularly brought his daughter L. with him when he visited the Ts.
It is obvious that in a case like this the assessment by the jury of the credibility and reliability of the three complainers was crucial. Mr. McCluskey who appeared for the appellant, drew our attention to what the sheriff said with regard to lapse of time at pages 5E and 13C of her charge. He maintained that the sheriff should have gone further than merely to draw the jury's attention to the fact of the lapse of time. She should have directed the jury to scrutinise with care the complainers' evidence in particular. She should also have drawn the jury's attention to the possible prejudice which the defence might have suffered because, in the passage of time since 1979, C.F. had died. Because he remained on good terms with the appellant, despite his knowledge of his daughter's allegations, it was at least possible that he might have given evidence supportive of the appellant. It has to be acknowledged that that was speculative, but in McDowell v. H.M. Advocate (unreported, 5 January 1996) the appeal court accepted that the speculative nature of such prejudice said to be suffered from the loss of evidence did not obviate the need for the presiding sheriff to give specific directions in relation to it. We consider that the sheriff in this case should have given such a specific direction and that her omission to do so amounted to a misdirection.
From the sheriff's report and from the terms of her charge, as well as from what Mr. McCluskey told us at the hearing of the appeal, the amicable relationship between the complainers' father and the T. family, despite the allegations of E.F. and J.F., was an important element of the appellant's defence since it might give rise to the inference that the complainers' father was not inclined to place much credence upon these allegations, and accordingly that the complainers' credibility might be impugned thereby. This was, in our opinion, an inference which the jury could draw from the evidence about C.F's relationship with the Ts. The sheriff considered this aspect of the evidence in two parts of her charge. At page 3F she said:
"A lot has been said in this case about suppositions and presumptions about people who are no longer here. Now please be careful about that, you are not detectives, your function is not to in fact get to the truth of the matter, it is to reach a verdict on the facts which you find to be proved on the evidence you have heard. So please don't use your imagination, don't think what C had on his mind at a certain time, or anyone who didn't give evidence. And for very good reasons a number of people couldn't give evidence, either because they are now dead, or because of some other incapacity. You cannot speculate as to what their evidence might have been. So that is very important, facts are proved by witnesses and you must proceed upon the witness that you heard in the witness box, any productions that you accept, and there are two joint minutes of agreement which I'll come to later".
Later in her charge she returned to this specifically at page 24E where she said:
"And I don't want you to speculate at all about what C.F. had in his mind when he was taking L. here, there and everywhere, to the Ts, to whatever, we don't know, because he hasn't given evidence. C.F., unfortunately,...is dead and we haven't heard evidence from L.F. either, for reasons of disability. So you have to take great care as to what you have heard about L.F's views, she has not given evidence, she has not been cross-examined about these matters. You have heard quite a lot of hearsay, and you should put out of your mind hearsay evidence as to what other people said that have not appeared before you in court. And put suggestions as to what inferences you can draw from the behaviour of people who didn't give evidence to one side, and be very careful about any suggestions that have been made as to inferences you should draw. You draw the inferences from the evidence that you have heard".
The advocate depute, while accepting that the second last sentence of the passage which has been quoted, was unfortunate, maintained that the infelicity was saved by the last sentence. Besides, he said, one must look at the charge as a whole and not as a conveyancing document.
When we read the charge as a whole, in light of the sheriff's report, it is clear to us that the sheriff did mean to say that, because C.F. was not alive to give evidence, his friendly association with the T. family was speculative and could not give rise to any inference which was favourable to the defence. In that, we consider that the sheriff erred and that she misdirected the jury at page 25B-C of her charge when she directed them to put suggestions to one side as to what inferences could be drawn from behaviour of people who did not give evidence.
Both misdirections in our opinion amount to a miscarriage of justice and we shall quash all three convictions.