Scottish High Court of Justiciary Decisons

JAMES NAPIER FARQUHAR v. HER MAJESTY'S ADVOCATE [2000] ScotHC 9 (28th January, 2000)

The appellant is James Napier Farquhar who was convicted at the High Court at Edinburgh of four charges of lewd, libidinous and indecent practices. The four charges concerned three complainers, charges 3 and 4 referring to the same complainer. The indictment contained a fifth charge but that charge was withdrawn by the Advocate Depute after a submission at the end of the Crown case and the appellant was acquitted of that charge. In seeking a conviction of the four remaining charges the Crown relied on the Moorov doctrine and the trial judge gave full directions to the jury on that doctrine and on the approach which they should adopt to the evidence. In addressing us today Mr Duguid made no criticism of that part of the charge and accepted that the directions were appropriate.

Having given those directions the trial judge went on to explain, under reference to the evidence of the complainer in the first charge, how the jury could not convict simply on the basis of her evidence alone. Again Mr Duguid accepts that that was an entirely apposite example for the trial judge to give. He then went on however to give a further example of the effect of the Moorov doctrine by reference to the evidence of the complainer in the fifth charge. He explained why it could not be used as corroboration. In addition the trial judge referred to the evidence of the complainer's adoptive mother who had given evidence of a de recenti statement. Again the trial judge explained why that could not constitute any form of corroboration. The criticism which was made by Mr Duguid was that the appellant had been acquitted of the fifth charge and therefore the jury would not be required to consider that evidence. Indeed it would plainly have been irrelevant to their consideration of the other charges which remained on the indictment. It had been inappropriate and unfortunate, Mr Duguid submitted, for the trial judge to use these particular examples. In that way he had drawn attention to evidence which the jurors should not be taking into account in delivering their verdict.

In his report to us the trial judge says that he made reference to the evidence on the fifth charge because he thought that it appeared necessary, or at least extremely desirable, to explain why that evidence could not be used to support the evidence of the other children. In our view it was at least unfortunate and unnecessary for the trial judge to refer to the evidence of the complainer's adoptive mother in this connection. But, as Mr Duguid accepted, the question for us is whether one can say that these directions which the trial judge gave in relation to the fifth charge gave rise to a miscarriage of justice. In our view they did not.

Having given the particular directions which are criticised, the trial judge then went on in a further passage in his charge to give the most emphatic directions to the effect that the evidence in relation to the fifth charge could not be taken into account by the jury and was to be put entirely outside their consideration of the four remaining charges. We are satisfied that, when these supplementary directions are taken along with the earlier directions which the trial judge had given as to the appropriate approach to the evidence in relation to the other four charges, the jury cannot have been left in any doubt about the correct way in which to approach the issue before them. As Mr Duguid pointed out, there were three other witnesses on the earlier charges and, in order to convict, the jury must have accepted their evidence. In the light of the charge when viewed as a whole we are satisfied that there was no miscarriage of justice and the appeal must accordingly be refused.

LIN