Lord Justice General
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE LORD JUSTICE GENERAL
NOTE OF APPEAL AGAINST CONVICTION
IAN JACK WHYTE
HER MAJESTY'S ADVOCATE
Appellant: Scott, Purdie & Co.
Respondent: Gray A.D. Crown Agent
1 April 1999
The appellant is Ian Jack Whyte who was convicted at the Sheriff Court at Edinburgh of two charges of lewd and libidinous practices. He has appealed against conviction. In his note of appeal two grounds are stated but at the outset Miss Scott explained that she was not arguing the first ground. The second ground arises out of the fact that there were two charges on the indictment and in respect of each of them only one witness, namely the complainer, spoke to the actings of the appellant. The sheriff accordingly directed the jury in terms of the case of Moorov 1930 JC 68 that, before they could convict, they would have to accept the evidence of each of the complainers. No criticism is made of the directions which he gave in the course of his charge on that matter.
The jury retired to consider their verdict and, about an hour later, they returned. When the Clerk asked the foreman whether they had reached a verdict the following exchanges occurred. The foreman of the jury said: "We have reached two dissimilar verdicts and we would like some advice on that point". The Sheriff said, "You would like some further guidance". The foreman of the jury replied, "Yes please". The Sheriff then said, "Yes. Well if you'd like to sit down for a moment, you have referred to reaching two dissimilar verdicts". The foreman of the jury said, "Yes" and the Sheriff said, "But I take it, because you want further guidance, these aren't verdicts in the sense that you are completely satisfied that you have finished your deliberations properly", to which the foreman of the jury replied, "Yes". The Sheriff then said, "Right, would you like to tell me what it is you would like me to try and make more clear?" and the foreman said, "Well, we have a verdict on charge 1 and we have a verdict on charge 2 which are dissimilar and are we able to give?", at which point the Sheriff said, "Oh, I see" and proceeded to give additional directions to the jury on the application of the Moorov doctrine. In particular he explained to the jury that, before they could convict of the charges, they would require to accept the evidence of the complainers on each of the charges and that, if they did not, then both of the charges would fail. Having given those directions, the Sheriff asked the jury whether they wanted to retire again to deliberate further and the foreman said, "Yes please". The jury then retired and about ten minutes later they came back and returned verdicts convicting the appellant on both the charges.
On behalf of the appellant Miss Scott submitted that this case was one where the jury came into court apparently going to return verdicts. What the foreman of the jury said in reply to the Clerk's customary question was, "We have reached two dissimilar verdicts". This indicated that at that stage the jury had actually reached verdicts. The verdicts were dissimilar and therefore one was to be assumed to be a verdict convicting and the other acquitting the appellant. She submitted that, in that situation, what the Sheriff should have done was to proceed on the basis that the verdicts were final and he should have directed the jury that in those circumstances they required to acquit the appellant since they were not accepting the evidence of the complainer in respect of one of the charges. In making this submission Miss Scott very frankly conceded that it was posited on the view that in the initial exchange the foreman of the jury was indicating on behalf of the jury that the jury had indeed reached their definitive verdicts.
In reply, the Advocate Depute submitted that one had to have regard to all that had occurred in the exchanges between the foreman of the jury, the Clerk and the Sheriff. One should therefore not read the initial response of the foreman of the jury in isolation. He submitted that, when the whole of the proceedings were looked at, it became clear that the jury had not in fact reached definitive verdicts when they returned. That was clear in particular from the fact that, when the Sheriff said to the jury that he took it that, because they wanted further guidance, these were not verdicts "in the sense, that they were completely satisfied that they had finished their deliberations properly", the foreman of the jury replied, "Yes". This exchange showed, he said, that the jury had not completed their deliberations and this was reinforced by the fact that, at the conclusion of the Sheriff's additional directions, the jury indicated that they wished to retire once more to deliberate further on the matter.
In our view, for the reasons advanced on behalf of the Crown, it cannot be said that the jury had completed their deliberations when they returned. Rather, we are satisfied that, at that stage, they had not reached their final position and were seeking further guidance so as to be able to formulate their final verdicts. In that situation Miss Scott accepted that the appeal must fail.
We should add that, even supposing that the jury had returned their two dissimilar verdicts, one of acquittal and one of convicting, those verdicts would plainly have been incompetent. On the authority of the case of Took v HMA 1988 S.C.C.R. 495 it would have been proper for the Sheriff, even in those circumstances, to give an appropriate direction and to ask the jury to consider the matter further in the light of that direction. This reinforces our conclusion that the position here was not one where the verdicts had to be accepted.
In all the circumstances we are satisfied that there was no miscarriage of justice and we refuse the appeal.