Scottish High Court of Justiciary Decisons

WILIAM DOUGLAS v. HER MAJESTY'S ADVOCATE [2000] ScotHC 100 (26th October, 2000)

[1] The appellant is William Douglas who was convicted at the High Court at Glasgow of two charges. The first was a charge of indecently assaulting a sixteen year old girl by seizing hold of her, attempting to kiss her on the mouth, pulling her body, restraining her and struggling with her. He was also convicted of assaulting, abducting and repeatedly raping her sixteen year old friend. He has appealed against conviction on the ground of misdirection by the trial judge and, in particular, he alleges that the trial judge failed to give adequate directions in respect of the defence case, including the evidence given by the appellant.

[2] It is unnecessary to rehearse the evidence in the case beyond saying that the complainers gave evidence of a sexual attack by the appellant, whereas the appellant gave evidence that there had been sexual activity between him and the two complainers, but that that sexual activity had been with their consent. There was a certain amount of other evidence relating to the distress of the complainers, but the upshot was that, in essence, the question for the jury was whether or not the sexual activity which had taken place had been with or without the consent of the complainers.

[3] In considering the criticism which is put forward of the trial judge's charge, it is necessary to have regard to the form which that charge took in this case. Before either the Advocate Depute or the defence counsel addressed the jury, the trial judge had explained to them that in his charge he himself would not go over the evidence and would touch on it only to the extent necessary to explain his directions on law. That was indeed the form which the charge eventually took. His Lordship simply identified chapters or headings of evidence which would be relevant for the proof of the Crown case, in so far as that was necessary to explain the directions which he gave them on the law. It follows therefore that there was no detailed account of the evidence for the Crown. It is also correct to say that his Lordship does not go over the evidence for the defence. In making his submissions to us on behalf of the appellant, Mr McVicar indeed drew attention to the absence from his Lordship's charge of any narration of the appellant's evidence. His submission was that there was an absence of balance in the charge, and that, in a case where he had not narrated the appellant's evidence, the direction as to the approach to the evidence to be adopted by the jury was defective.

[4] Given the nature of the trial judge's charge, as we have already described it, we are satisfied that there is no merit in Mr McVicar's simple contention that it lacked balance. But Mr McVicar argued that the absence of a narration of the evidence was relevant to his wider argument. As the trial judge himself points out, he did not give the jury any explicit direction to the effect that, if anything in the appellant's evidence gave rise to reasonable doubt, they required to acquit. In a passage which occurred at the end of his directions on corroboration as a necessary element in the Crown case, the trial judge said,

In his report to the court, the trial judge explains that he would usually say "if any evidence in this case, including the evidence of the appellant, creates in your mind a reasonable doubt, then you must acquit". He cannot himself account for his omission of those words in this particular case.

[5] Mr McVicar, in presenting the appeal, referred the court to Harrison v Her Majesty's Advocate 1993 S.C.C.R. 1087. As he pointed out, that was a case where the trial judge had narrated the defence evidence. But the passage which has a bearing on the present matter occurs in the opinion of the Lord Justice Clerk (Lord Ross) at p.1094 A-B:

As is pointed out in that passage, it will be desirable for judges to say expressly that, if the jury believe the evidence of the accused or it leaves them in reasonable doubt, it is their duty to acquit. The trial judge, in this case, accepts that that would be his usual practice. Nonetheless, as the passage goes on to indicate, the essential question for this court is whether the import of the trial judge's charge considered as a whole is such that the jury are left in no doubt that their task is to consider the whole evidence and that, if any of the evidence leaves them in reasonable doubt as to the guilt of the accused, then they must acquit.

[6] We notice, first of all, that in the very passage in the trial judge's charge which is criticised by Mr McVicar, his Lordship in fact gives, expressly, precisely the direction which the Lord Justice Clerk in Harrison said had to be contained in the charge as a whole. So we start from the position that the jury were explicitly told that, if any evidence in the case created in their mind a reasonable doubt about the accused's guilt, then they must acquit. The jury were, in addition, told by the trial judge, earlier on in the charge, that the same consideration required to given to the evidence of the appellant, as to the evidence of any other witness in the case and that he started at no built-in disadvantage just because he came from the dock and went across to the witness box. So that was a clear indication that the evidence of the appellant was evidence in the case and to be considered along with all the other evidence. Furthermore, towards the very end of the charge, his Lordship reminded the jury that, in respect of each of the charges in the case, they required to consider the evidence relating to that charge. More particularly he said that, in the case of both charges 1 and 2, they required to consider the evidence of both the complainers and he added "The accused gave evidence in relation to each of the two charges". He said "and obviously you consider their evidence". By this he meant that they required to consider the evidence of both the complainers and the appellant in relation to each of the charges so far as it was relevant to that charge. In our view, therefore, it is plain that the jury were given very clear directions that they required to take the appellant's evidence into account when considering both of the charges.

[7] We should add that the trial judge also gave the jury a clear direction, in the usual terms, that they had to be satisfied of the accused's guilt beyond a reasonable doubt and added "If, when you have considered all the evidence, there remains in your mind a reasonable doubt about his guilt... you must acquit."

[8] When all these passages are taken together we are satisfied that it must have been clear to the jury that, if the evidence of the appellant gave rise to a reasonable doubt, they must acquit. That being so, we are satisfied that, despite the omission of the particular words to which Mr McVicar drew attention, in this case the correct issue was clearly focused for the jury. In that overall context the fact that the trial judge chose not to narrate the evidence of the appellant is not, in our view, a reason for doubting that the jury would have well understood what they required to do in relation to his evidence. In these circumstances the sole ground of appeal against conviction fails, and the appeal is accordingly refused.

DL