Scottish High Court of Justiciary Decisons

CAROLYNE CLARK v. HER MAJESTY'S ADVOCATE [2000] ScotHC 79 (26th July, 2000)

[1] The appellant is Carolyne Clark who was convicted at the Sheriff Court at Falkirk of a charge of assault and robbery. She has appealed against conviction on the ground of misdirection by the presiding Sheriff in his charge to the jury.

[2] The appellant's written grounds of appeal specified three ways in which the Sheriff is said to have misdirected the jury. The first was to the effect that he had put to the jury an inaccurate version of one aspect of the complainer's evidence. Mr. Wheatley, who appeared for the appellant, readily acknowledged that, even if this had been so, the particular alleged inaccuracy would not of itself have been a sufficient basis for holding that there had been a miscarriage of justice. We agree with that view. The second ground complained that the Sheriff had failed to deal even-handedly with the evidence for the Crown and the defence. As we shall have occasion to notice in more detail in a moment, a significant element in the Crown case was a tape-recorded statement which the appellant made to the police. The Crown case was that the account of the circumstances of the offence given in that statement coincided in significant respects with the account of the circumstances which emerged from the complainer's evidence. The appellant gave her statement to the police roughly twenty-four hours after the assault and robbery. The defence position was that any similarities in the two versions could be accounted for either by the fact that the incident had been "the talk of the steamie", to use the defence agent's phrase, or because of general tittle tattle, as the Sheriff put it. The particular criticism in the second ground was that the Sheriff had not taken the same time and care in examining the discrepancies in the two versions as he had devoted to examining the similarities. On the other hand, as Mr. Wheatley himself pointed out, there were in fact only two discrepancies and rather more similarities. The Sheriff drew the jury's attention to the discrepancies. So, if the only criticism had been as to the disparity in the amount of time devoted to the two bodies of evidence, again we should have rejected that criticism of the Sheriff's charge.

[3] The primary submission by Mr. Wheatley was based on his third ground of appeal and, in effect, he asked that we should consider the other grounds only in the light of the third ground. The third ground stated:

As can be seen, the ground refers to the intonations of the Sheriff in dealing with the similarities and discrepancies between the accounts given by the appellant and by the complainer. To permit the court to consider this ground, arrangements were made for the tape-recording of part of the Sheriff's charge to the jury to be played to the court. In order to judge whether, as Mr. Wheatley submitted, there had indeed been a difference in the intonation used by the Sheriff in the particular passage where he was dealing with the similarities between the two accounts, we listened to the tape-recording of the charge from page 17 F in the transcript to page 24 E. We thus heard both the passage where he was dealing with the similarities between the accounts and the passage where he was dealing with the discrepancies, as well as some less contentious material.

[4] In the passage dealing with the similarities, the Sheriff refers to the transcript of the appellant's statement to the police and says this:

[5] In this passage the Sheriff goes through the various points on which the evidence of the complainer and the statement of the appellant coincided. In itself there was, of course, nothing objectionable in the Sheriff reminding the jury of these matters. Nor would there have been anything objectionable in his focusing the issue by putting a series of rhetorical questions which highlighted the points. That could often be an entirely appropriate device by which to bring the matter vividly to the jury's attention. So, we stress that there is nothing on the face of the transcript itself which would have justified a finding that the Sheriff had failed to observe the proper balance in presenting the issues to the jury.

[6] Indeed, Mr. Wheatley did not suggest otherwise. His submission was, rather, that the true nature and tone of the passage could not be judged simply from the printed page; it could be judged only by listening to the tape-recording, which would reveal the intonation, the inflexion and the emphasis which the Sheriff used in speaking these words to the jury. As Mr. Wheatley remarked, his submission depended entirely on the impression which the tape-recording of the remarks made on the court. None the less, we note that the Advocate Depute very frankly indicated that he could indeed detect a difference in the intonation used by the Sheriff in this passage from the intonation which he used in other parts of his charge. Although we heard only a limited amount of the rest of the charge, we agree with the Advocate Depute. Listening to the tape, we formed the clear impression that, when posing the series of rhetorical questions, the Sheriff did indeed raise the register which he used and place the emphasis on certain words in such a manner as to suggest that the answers to the questions would be unfavourable to the appellant. We stress that this was a clear impression which we all formed and that the phenomenon occurred repeatedly. We consider that any attentive juror would have formed the same impression. The Advocate Depute made the valid point that this court has no means to judge the visual impression which the Sheriff would have made when delivering these directions. While accepting that this is so, we do not consider that any visual impression would have counteracted, to any significant degree, the aural impression which the Sheriff's spoken words conveyed.

[7] In his report to this court the Sheriff tells us that any "intonations" were inadvertent and due to no conscious or deliberate act on his part: he used his best endeavours to charge the jury in a neutral, impartial way and to avoid influencing them in the slightest. The question for us, however, is not whether the impression which the delivery of the passage created was created intentionally or inadvertently. It is sufficient that, as spoken by the Sheriff, when listened to objectively, the passage did indeed create the impression that the appropriate inference to draw from the evidence on these matters was adverse to the appellant. To that extent, the Sheriff failed to take sufficient care to avoid trespassing upon the jury's province as masters of the facts. Applying the well-established test formulated by Lord Justice General Cooper in Simpson v. H. M. Advocate 1952 J.C. 1 at p. 3 and applied recently, for example, in Silverman v. H. M. Advocate 1999 J.C. 117 at p. 121, we are accordingly satisfied that, in this respect, the Sheriff misdirected the jury.

[8] The appellant was sentenced to two years imprisonment and would have been due for release on 6 September 2000. In those circumstances the Advocate Depute did not seek authority to bring a new prosecution. We shall therefore simply allow the appeal and quash the conviction.