Scottish High Court of Justiciary Decisons

JERRY BONCZA TOMASZEWSKI aka GEORGE FRASER v. HERE MAJESTY'S ADVOCATE [2000] ScotHC 65 (2nd June, 2000)

[1] The appellant is Jerzy Boncza-Tomaszewski who is also known as George Fraser. In 1940 he was a member of the Polish forces fighting in France who were evacuated to Britain at Dunkirk. He was then stationed at Arbroath and married Ethel Scott Fraser later that year. After the war a niece came from Germany to live with the appellant and his wife. In 1948, on the basis of complaints made by his niece, the appellant and his wife were indicted for trial in the High Court at Dundee on elaborate charges of assaulting his niece and treating her cruelly and unnaturally to her grievous hurt and bodily injury. The appellant and his wife were represented by the same counsel. From various comments in the papers it is apparent that the trial was conducted against the background of a heated atmosphere of public hostility to the appellant, partly at least due to his national origin. The indictment itemised various alleged events which were said to have occurred on different occasions. At the end of the evidence for the Crown and defence the Advocate Depute withdrew the libel against Mrs. Boncza-Tomaszewski. On 25 May 1948, however, the appellant was convicted of items 1, 11, 12, 15, 18 and 19 on the indictment and sentenced to seven years penal servitude. He appealed against his conviction but on 22 October 1948 the appeal court refused his appeal. The appellant served his sentence and was released in 1953. He and his wife divorced, though they have remained on good terms. The appellant stayed on in this country, remarried and raised a second family. The appellant's niece has since died.

[2] From the time of his conviction onwards the appellant maintained that he had been wrongly convicted and, after his appeal was dismissed, presented petitions to the Secretary of State - but without success. Eventually, in 1999 the Scottish Criminal Cases Review Commission referred his case to this court under Section 194B of the Criminal Procedure (Scotland) Act 1995 on the basis that there was evidence now available which indicated that there had been a miscarriage of justice. The fresh evidence related to matters which had occurred before the complainer came to this country and which would have had a bearing on her credibility. At the time of the trial in 1948 and for many years afterwards it was extremely difficult, of course, to contact potential witnesses from Poland, far less to ensure their attendance at a trial in Scotland. Although the Commission referred the whole case to the court, the challenge to the conviction was restricted to items 11, 12, 18 and 19. At the hearing before us Mr. Targowski, Q.C., who appeared for the appellant, indicated that he was not asking the court to quash the appellant's conviction of items 1 and 15. While the appellant himself did not accept that he had been guilty of assaulting the complainer, he and his advisers did accept that there was no proper basis upon which they could ask this court to quash his conviction of these aspects of the indictment. We are therefore concerned with his conviction of the other items only.

[3] As we have explained, the Commission referred the case to this court on the basis of the existence of relevant fresh evidence. The appellant's agents lodged many documents, including affidavits, in support of that ground of appeal. The documents had been gathered by the Commission and had been helpfully selected and arranged by the appellant's counsel and agents. Among the documents were the report of the trial judge, Lord Justice Clerk Thomson, the original grounds of appeal to this court in 1948 and the opinions of the Lord Justice General (Lord Cooper) and the other judges in the appeal court. At a procedural hearing on 23 March 2000 the court suggested that it might be helpful if counsel for the appellant were in effect to amend the grounds of appeal under the reference to include the original grounds of appeal so that the court would be able, if appropriate, to review the whole matter. In due course this was done. Among the original grounds of appeal were two which are of significance for present purposes:

When counsel for the appellant adopted the original grounds of appeal, these particular grounds became a basis upon which the court was asked to quash his conviction even although the appellant's appeal on those grounds had been heard and determined by the High Court in 1948 (Section 194B(1) of the 1995 Act).

[4] The hearing of the appeal before this court was originally set down for four days but it eventually took a relatively short time since the Crown intimated in advance that they did not intend to support the appellant's conviction of the items in question. Their position was set out in writing in Outline Submissions which were lodged on 24 May. In those Outline Submissions the Crown accepted that the trial judge had misdirected the jury on the matter of the corroboration of the complainer's evidence on these items and that the misdirection had been material and had resulted in a miscarriage of justice. In Amended Submissions counsel for the appellant adopted the Crown Outline Submissions. In these circumstances, at the hearing of the appeal on 2 June 2000 we were addressed only on the matter of corroboration. As we indicated at the conclusion of the hearing, we were satisfied that there had indeed been a material misdirection by the trial judge and that the appeal should be allowed. It was therefore unnecessary for the court to examine the fresh evidence which had formed the basis of the Commission's reference to the court and we have not done so. We think it right, however, to record that the affidavits included a considerable body of material which would, prima facie at least, have a bearing on the complainer's credibility.

[5] The transcripts and other documents in the case transport the reader back to a very different era of ration books, coal-houses, domestic service and permanent waves. It may be that, similarly, there are more or less subtle differences in the approach which a trial judge and the appeal court would have adopted in 1948 from the approach which they would adopt to the same matter today. In 1998 the Court of Appeal Criminal Division, presided over by Lord Bingham L.C.J., were called upon to consider the conviction of Derek Bentley who was tried and convicted of murder in 1952 and executed the following year after his appeal to the Court of Criminal Appeal had been dismissed. In 1998 the Criminal Cases Review Commission referred the conviction to the Court of Appeal under Section 9 of the Criminal Appeal Act 1995. In R. v. Bentley [1998] T.L.R. 492, the Court of Appeal held that they required to deal with the matter on the basis of the standards applied by the courts in 1998 rather than by reference to the standards of 1952 or 1953. Similarly, they required to apply their current understanding of the common law. We respectfully adopt their Lordships' reasoning and deal with the issues in this case on the basis of our current understanding of the common law and on the basis of present-day standards. This approach may involve the risk that we seem to criticise our predecessors by reference to criteria which are different from those which they were applying. But that risk is inherent in Section 194B which is specifically designed to allow this court to reconsider the soundness of a conviction even though it was subject to appeal. The operation of that section would be both artificial and ineffective if the court were forced to consider the issues by reference to the practice and legal approach of a bygone age. The purpose of the section must be to permit the court to re-examine cases to see whether, by the common law and standards of the time when the reference is considered, there has been a miscarriage of justice, even if, due to their understanding of the common law or by the standards applied at the time of the original proceedings and appeal, the appeal court would then have reached a different conclusion.

[6] One material difference between the procedure in 1948 and the procedure today is that in 1948 it was not possible for the defence to make a submission of no case to answer at the conclusion of the evidence for the Crown. In this case, however, once the evidence for the Crown and the defence was completed, the Advocate Depute amended the indictment by deleting items 5 and 13 from the charge. We have already noted that, at this stage also, he withdrew the libel against the appellant's wife and she was acquitted by the jury on the direction of the judge. Thereafter counsel for the appellant made a legal submission dealing with the sufficiency of the evidence against the appellant and, in particular, in regard to corroboration. In the light of that submission the judge directed the jury that they must return a verdict of not guilty on items 2, 3, 4, 5, 6, 7, 8, 9, 10, 14, 16 and 17. In this way it came about that the only items which the jury required to consider were 1, 11, 12, 15, 18 and 19. The indictment which was before the jury at the time of their deliberations was therefore restricted and also contained amendments which the Advocate Depute had made to meet criticisms of its original form. We set out its terms. It begins, in the usual way, by telling the appellant and his wife that they are indicted at the instance of the Lord Advocate (Mr. Wheatley, Q.C.) and then says that

We note that the opening words of the indictment refer to "the charges". In its original form the indictment simply enumerated the various allegations and might therefore be thought to be enumerating a number of separate charges. In the amended version which we have quoted, however, the indictment has been divided into two parts, the (First) containing matters originally libelled against both accused and the (Second) containing matters libelled against the appellant only. Adopting the terminology used in the original proceedings, we have referred to the separate heads within the two parts as "items".

[7] The direction which the trial judge gave the jury to acquit the appellant on many of the items in the indictment was based on his view as to the approach which required to be adopted to corroboration. During a debate on relevancy and competency at the start of the trial the Advocate Depute invited the court to treat the indictment as containing a single charge made up of various items. As we have just explained, the amendment of the indictment resulted in there being, in formal terms, two charges but the Advocate Depute continued to invite the court to treat the indictment, for purposes of the law relating to corroboration, as a unity made up of a number of different items. On that approach, he argued, while there required to be corroboration in relation to the indictment as a whole, it was not necessary for there to be corroboration of the Crown case in relation to each of the individual items. Defence counsel, by contrast, urged the trial judge to treat the individual items as separate charges and therefore to direct the jury that the Crown required corroborative evidence in respect of each of them. It was because the trial judge accepted the substance of the defence argument that he directed the jury to acquit the appellant of the various items on the basis that there was insufficient evidence. This can be seen from the terms of his charge to the jury. Apart from a few general opening remarks, the first thing that the trial judge said to the jury was:

He said that the Crown could prove their case against the accused only

The Lord Justice Clerk proceeded to quote fairly extensively from the opinion of Lord Justice Clerk Aitchison in Morton v. H. M. Advocate 1938 J.C. 50 at pp. 52 - 53 before adding

The Lord Justice Clerk first dealt with items 1 and 15, with which we are not concerned. He then continued:

We pause to observe that it is plain that the jury were being directed that they must consider the complainer's evidence on each of the items and that they should acquit the appellant of any item on which they disbelieved her. In effect the Lord Justice Clerk treated each of the items as a separate charge. In this respect he favoured the approach which commended itself to the appeal court in Cordiner v. H.M. Advocate 1991 S.C.C.R. 653. He then made certain comments on the complainer's credibility, emphasising the points made by defence counsel, while stressing that it was emphatically a matter for the jury to determine.

[8] The Lord Justice Clerk went on to say:

Lord Thomson then analysed the medical evidence in some detail. That evidence dealt with the results of the doctors' examination of the complainer and in particular the results of their examination of her private parts. At the trial counsel for the appellant appears to have acknowledged that, if accepted by the jury and depending on the construction put upon it, the medical evidence could have provided corroboration of the complainer's evidence that she had been sexually assaulted. For present purposes we proceed on the basis that the medical evidence could be used in this way. In his charge, however, the trial judge had in particular to deal with a complication which had arisen because the second doctor had discussed a critical part of her evidence with the first doctor who had given evidence the day before. Having given the jury directions on these points, the judge commented:

The very terms of this direction indicate that the issue of the corroboration of the complainer's evidence identifying the appellant as the perpetrator of the conduct in question had been raised by defence counsel in his address to the jury. We do not have a transcript of the speech of Mr. Calver, Q.C., but we do have a transcript of the submission which he made to the trial judge before addressing the jury and it contains the following passage:

It may readily be supposed that Mr. Calver made much the same point to the jury.

[9] We can summarise the directions given to the jury on corroboration in this way. They were told to consider each item separately and to ask themselves, first, whether they accepted the complainer's evidence in relation to that item. If not, they were to acquit the appellant of that item in the charge. But, if they accepted the complainer's evidence, that was not sufficient to entitle them to convict the appellant. They required to find corroboration of her evidence. They were directed that, if they accepted the evidence of the two doctors and could fit it in with the complainer's evidence, then the doctors' evidence would provide the necessary corroboration not only of the complainer's evidence that she had been assaulted in the manner specified in the various items, but also that it had been the appellant who had done the acts in the relevant items of the indictment.

[10] The identity of the perpetrator of an offence is one of the crucial facts, the facta probanda, which the Crown must establish by corroborated evidence. We refer to Smith v. Lees 1997 J.C. 73 which makes the position clear and which states the law that we should require to apply in disposing of this appeal today. But, although, as the Lord Justice General pointed out in Smith v. Lees (1997 J.C. at p. 79 C - F), views about the scope of the requirement for corroboration may have fluctuated over the years, it appears always to have been accepted that the identity of the perpetrator was a matter which required to be established by corroborated evidence. In particular that would have been the law as understood in 1948. See, for instance, Harrison v. Mackenzie 1923 J.C. 61 and the remarks of Lord Justice General Clyde in Gillespie v. Macmillan 1957 J.C. 31 at p. 38. In that case Lord Justice Clerk Thomson himself noted (1957 J.C. at p. 39) that the problem of the sufficiency of evidence could arise in various ways: "sometimes the issue is whether it was the accused who perpetrated the crime...."

[11] The short point which the Crown made in their Outline Submissions to this court, and which the Advocate Depute repeated at the hearing before us, was that the trial judge's direction on corroboration was flawed for precisely the reason which had been put forward by Mr. Calver before he spoke to the jury. While the evidence of the doctors was capable of corroborating the complainer's evidence that she had been assaulted in the manner described by her and specified in the relevant items in the indictment, there was nothing in their evidence which could provide the necessary corroboration of her evidence that it was the appellant who had assaulted her in that way. That being so, the direction to the jury that there was sufficient evidence if they accepted the evidence of the two doctors was a misdirection on a critical point.

[12] There is nothing whatever in his charge to the jury to explain why the Lord Justice Clerk gave this particular direction on corroboration. Perhaps the best indication of his approach is to be found in his confidential report to the appeal court. Referring to the forthcoming appeal his Lordship observed:

(3) Is there room for the view that somebody other than the accused was

The Lord Justice Clerk appears to have approached the matter on the basis that there was no competitor for responsibility for the sexual items and that, in these circumstances, there was no room for the view that somebody other than the accused was responsible for the sexual offences. In other words, if there was sufficient evidence to entitle the jury to conclude that the conduct in question had taken place, then - in the absence of any evidence that any other male had been involved - they would have been entitled to conclude that the appellant had been the person who did the various things.

[13] There are, of course, cases where the identity of the accused as the perpetrator of an offence can be proved by circumstantial evidence excluding anyone else as having had the opportunity to commit the offence. In the present case, defence counsel did not accept that only the appellant could have been responsible for any sexual interference with the complainer. For instance, part of the defence case appears to have been that the complainer had at one time said to the appellant that she had had sexual relations for money with a man after she arrived in Britain. In cross-examination the complainer admitted saying this to the appellant but maintained that it had not been true. Nor is this a case where the complainer was confined to the appellant's house. In those circumstances, it appears to us that, if the trial judge considered that the jury would have been entitled to proceed on the basis that the general evidence disclosed a situation where only the appellant could have committed the acts in question, he should none the less have left that issue to the jury to decide with the assistance of an appropriate direction. In other words, on the trial judge's approach, it was the general evidence, rather than the evidence of the two doctors, which might furnish the necessary corroboration of the complainer's evidence that the appellant did the various things to her. In these circumstances we are, provisionally at least, of the view that the trial judge's direction on the corroboration of the complainer's identification evidence was unsound and misleading.

[14] We turn therefore to see how the appeal court approached this issue. Their reasoning is to be found in the opinion of the Lord Justice General with whom Lord Russell and Lord Keith concurred. The approach of the appeal court was wholly different from that adopted by the trial judge.

[15] Lord Cooper began by swiftly dismissing a ground of appeal relating to the competency of the indictment. He went on to reject an argument that there had been insufficient evidence to entitle the jury to convict the appellant of the first item in the indictment. As we have explained, in the present proceedings the appellant has not challenged his conviction of that item and so we must proceed on the basis that the appeal court were correct on this point. The Lord Justice General summarised his conclusion by saying:

He then proceeded to what he found to be "the one real difficulty of this case". He rejected the distinction which the trial judge had drawn between the mere assaults and the items which contained in addition some element of indecency. He said:

The Lord Justice General accepted, of course, that there required to be corroboration of the complainer's evidence that it was the appellant who had done the various things. As the remarks at the end of the passage also show, the appeal court recognised that, while the doctors' evidence could provide corroboration of the complainer's evidence that the acts in question had been perpetrated by someone, the doctors' evidence could not corroborate her evidence that they had been perpetrated by the appellant. Therefore, correctly in our view, the Lord Justice General defined the issue as being whether the independent evidence disclosed enough to incriminate the accused as the perpetrator of the items in question as well as of the first item. While that was indeed the correct legal issue, it was not, of course, the issue which the trial judge had put to the jury in his directions. In other words the Lord Justice General was signalling that he was about to embark on a search for corroboration in parts of the evidence to which the jury's attention had never been directed and which they had therefore never considered for this purpose.

[16] Lord Cooper's opinion continues with a passage which we have not found altogether easy to interpret:

The passage in Dickson on Evidence to which Lord Cooper refers is well known as one of the bases for the particular rule on corroboration which has become popularly known as the Moorov doctrine after the leading case, Moorov v. H.M. Advocate 1930 JC 68. And the Lord Justice General does indeed appear to look for the same kind of corroboration as is associated with that rule, even though that rule applies to separate charges on an indictment and he had already been at some pains to explain that he preferred to analyse this particular indictment as comprising one single charge. Be that as it may, Lord Cooper started from the position that there was sufficient corroborated evidence that the appellant had done the things specified in the first item on the indictment. For instance, there was evidence not only from the complainer but also from a Miss Smith which pointed to the appellant as the person who had struck the complainer with some kind of lash on one occasion. As we interpret his reasoning, Lord Cooper held that this independent evidence of identification on item 1 could be used to corroborate the complainer's identification of the appellant as the perpetrator in the case of the other items as well, provided that there was the necessary unity of character between the kind of assault libelled in item 1 and the kind of assaults, some at least involving indecency, libelled in the other items. Lord Cooper then used two particular aspects of the evidence to justify the view that there was indeed the necessary unity of character between the incidents.

[17] The Lord Justice General himself described the matter as "extremely narrow" and he must therefore have been conscious that he was seeking to apply the Moorov doctrine at its very margins. It is usual for the rule to be applied not merely where there are separate incidents forming the subject of separate charges but where the incidents involve different complainers. Here the rule is used to provide corroboration of different incidents spoken to by the same complainer. Moreover, the absence of any element of indecency in the assaults libelled under item 1 is, at the very least, a considerable obstacle to using the evidence relating to that matter as corroboration for the evidence relating to assaults involving an element of indecency. We refer, for instance, to Farrell v. Normand 1992 S.C.C.R. 859. Apparently in order to discover the necessary unity of character in the conduct, the Lord Justice General referred to two pieces of evidence: first, that the appellant repeatedly accused the complainer of self-abuse and had claimed that he had chastised the complainer to try to prevent this behaviour; secondly, that, shortly after the complainer was removed from his house as a result of her allegations, he said to the witness Simpson that the complainer had gone out with German men and had liked them to beat her and then have an affair. The second piece of evidence was said to be "highly sinister" and so to provide the necessary link.

[18] As we understand the position, it is true to say that part of the defence to the allegations of assault, where there was no sexual element involved, was that the appellant had used reasonable chastisement to punish the complainer. The jury obviously rejected that defence. While that element might therefore be a common theme in relation to all the allegations of mere assault, we are less sure that it would also provide the necessary unifying element with the allegations of indecent assault - precisely because of the indecent elements in those allegations. The second of the two matters mentioned by Lord Cooper is even more problematical. It is hard indeed to see how a remark, which is said to have been made by the appellant after all the alleged conduct was over, which is in itself exculpatory and does not refer directly to any of the allegations, could be thought to have the effect of providing a link between item 1 and the other items.

[19] We need not reach a concluded view on either of these matters, however. It is sufficient for present purposes to recall that it is a matter for the jury to decide in any case whether there is the necessary inter-relationship between the alleged incidents on separate occasions to allow the jury to use evidence in relation to one incident as corroboration of evidence relating to the others. The jury decide that issue, of course, in the light of directions as to the application of the Moorov doctrine. In the present case, however, they were given no such directions and were not asked to apply that approach since, as we saw, the trial judge proceeded on a wholly different basis and gave them a direction which Lord Cooper obviously thought - rightly, in our view - was unsound.

[20] In these circumstances it is clear that - although he did not allude to it - Lord Cooper must in fact have been applying the proviso to Section 2 of the Criminal Appeal (Scotland) Act 1926. In substance the appeal court dismissed the appeal on the basis that, although there had been a material misdirection, no substantial miscarriage of justice had occurred because they could find another route by which the jury could have reached the same decision. But before the section containing the proviso was removed from our law by the Criminal Justice (Scotland) Act 1980, the authorities established that the test for the application of the proviso was "high and exacting": McKenzie v. H.M. Advocate 1959 J.C. 32 at p. 38, referring to the formulation by Viscount Simon in Stirland v. D.P.P. [1944] A.C. 315 where he said that the proviso could be applied only where a reasonable jury, properly directed, would "without doubt" have convicted. In our view, on that well-tested approach there was no room for applying the proviso in the present case which the Lord Justice General himself described as "exceedingly narrow". Therefore the proper course for the appeal court to have adopted in the light of the trial judge's misdirection on the requirement of corroboration of the complainer's evidence that the appellant was the perpetrator of the relevant acts would have been to quash the appellant's conviction on these items.

[21] For these reasons at the conclusion of the hearing we allowed the appeal and quashed the appellant's conviction on items 11, 12, 18 and 19 on the indictment. We also quashed the sentence of seven years penal servitude and substituted a sentence of 18 months imprisonment backdated to 25 May 1948 in respect of the appellant's conviction of items 1 and 15.