Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord Osborne Lord Weir	Appeal No: C671/00 OPINION OF THE COURT delivered by LORD COULSFIELD in NOTE OF APPEAL AGAINST CONVICTION by MICHAEL JOHN CHALMERS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

Appellant: M. Scott, Q.C., Scullion; Carr & Co.

Respondent: D. Batchelor, Q.C., A.D.; Crown Agent

18 September 2002

1. The appellant was convicted by a majority verdict of one charge of lewd and libidinous practices towards an 11 year old girl committed on various occasions between 20 August 1998 and 2 July 1999. He had originally been charged with a much more extensive course of lewd and libidinous conduct and had also been charged with a separate charge of raping the same girl. However, the girl did not speak to penetration of her private parts during her evidence and, although there was some medical evidence which might have supported the charge of rape, that charge was withdrawn from the jury. The charge of which the appellant was eventually convicted was, as amended, in the following terms: that during the period in question he did

"remove her clothing, apply creams to her body, lie naked in bed with her, handle her naked private parts, lick her naked private parts, induce her to handle your naked private member, place her mouth on your naked private member and place your naked private member on her naked private parts, induce her to masturbate you to the emission of semen and masturbate in her presence."

2. This was an extensive catalogue of indecent behaviour towards the complainer. The complainer in her evidence gave a sufficiently clear account of the appellant's alleged behaviour to support all the allegations in the charge. The only corroboration, however, was contained in evidence given by the complainer's mother. Her evidence was that she had been suspicious of the appellant's behaviour towards the complainer and that she had caught the appellant with the complainer on two occasions. On one occasion he was, she said, trying to get the complainer to touch his penis. On the second occasion, a week later, he was showing her his penis. The complainer's mother said that both these incidents took place in the livingroom in the family house. The complainer herself did not speak to any incident in the livingroom but to incidents taking place in other parts of the house.
3. The line adopted in defence was that the allegations were invented by the complainer and her mother as part of a vendetta arising from a history of conflict between the appellant and the complainer's mother. The appellant did not give evidence but there was before the jury evidence of a long police interview in which he had expressed complete denial of the allegations and expressed also his contention that the allegations were invented, with the assistance of the Social Work Department, as part of a vendetta against him. There was no submission that there was no case to answer because of inadequacy of evidence nor was there a submission that the evidence was inadequate to support the whole of the charge against the appellant and that the judge should direct that parts of the charge should be deleted.
4. The grounds of appeal are that the trial judge misdirected the jury in two respects. The first ground relates to a passage early in the judge's charge. Having directed the jury in regard to onus and standard of proof, in the course of which he said that the Crown must prove beyond reasonable doubt the commission of the crime charged by the accused by sufficient evidence, the judge said:

"The commission of the crime charged means of course that the Crown must prove on the evidence that a crime has been committed and I will return to this in due course. But this is not the real problem in this case as I will try to explain to you in a few minutes time. 'By the accused' means of course that the Crown must also prove not only that a crime has been committed but that it was committed by the accused and that is the issue for you in this case for obvious reasons and I will come back to that."

5. The judge did not at any time expressly revert to this topic. After dealing with other general matters of evidence, he explained what was meant by the expression lewd and libidinous practices and told the jury, as was perhaps obvious, that the matters libelled were capable of being taken to be such practices. He then continued:

"I can direct you that you can hold that those conform to the crime that is charged or named as lewd, indecent and libidinous practices and therefore what you really have to decide, ladies and gentlemen, is whether or not in fact you are satisfied that these particular physical acts were committed by the accused on this girl."

6. He then went on to refer to the evidence of the complainer and her mother and stressed that the jury must find both of those witnesses credible and reliable if they were to convict. He also clearly reminded the jury of the position of the appellant, that the acts complained of had never taken place.
7. The appellant's criticism was directed to the passage in which the judge used the expression "but this is not the real problem in this case". It was submitted that by these words he had indicated to the jury that there was no issue as to whether the acts had taken place and directed them towards considering only whether it was the accused who had committed them. We have considered this submission, but we cannot accept it. It is not clear what exactly the judge meant by using the words which he did in this particular passage in the charge. It was suggested on behalf of the Crown that he was in effect saying that there were not really two questions in the case but only one composite question, namely, did the accused do the acts which were alleged against him. It is possible that that, or something like it, was what was in the judge's mind but, if so, it has to be said that he did not express his meaning clearly. In the context of the charge as a whole, however, we do not think that there was the slightest risk that the jury would be confused by this passage. In the subsequent passages which we have quoted, the judge put the real question in the case very precisely before the jury. He also reminded them, very clearly, of the issues and the conflict between the evidence on which the Crown relied and the position of the accused, as expressed in his interview, in the cross-examination and in submissions made on his behalf. In these circumstances there was, in this respect, no misdirection capable of giving rise to a miscarriage of justice.
8. The second criticism of the charge was that the jury were not directed that they could delete any parts of the indictment about which they were not satisfied. The judge did tell them that they could accept part of a witness's evidence and reject another part but there was no specific direction in regard to the possibility of deletions from the charge. It was submitted that this was a failure, and an important failure, in view of the very wide difference between the evidence given by the girl and the evidence given by her mother. As we have indicated, the complainer spoke to an extensive catalogue of acts of indecency: the mother spoke only to two occasions of relatively limited acts of indecency. In the course of the proceedings before the hearing of the appeal, indeed, there was a belated attempt to lodge an additional ground to the effect that there was insufficient evidence to justify a conviction because of the mismatching of the complainer's evidence and that of her mother, but that ground of appeal was not allowed to be received. Nevertheless, it was submitted that the jury might well have taken the view, if they had been reminded that it was open to them, that the mother's evidence could not be regarded as supporting everything in the charge.
9. The judge explains in his Report that he did not suggest to the jury that they might consider whether parts of the charge should be deleted because the case had been presented by the parties on an all or nothing basis and that he did not think it appropriate to suggest any other possible approach to the jury. In our view, however, it is certainly common practice to inform a jury, even in cases in which there is much more evidence than was available in the present case, that they have to be satisfied of all the elements included in the charge and that they can delete any element about which they are not satisfied. In the present case, we agree with the submission that there was such a great discrepancy between what was spoken to by the complainer and what was spoken to by her mother that there was real room for the jury to consider whether they should accept that all the extensive catalogue of indecencies had been proved. For that reason, we have come to the view that the failure to direct the jury that they could delete parts of the charge was a material misdirection and it follows that the conviction cannot stand.
10. At the conclusion of the hearing, we informed the parties of our decision that the conviction could not stand. The advocate depute then moved for authority to recommence proceedings against the appellant. On behalf of the appellant it was submitted that in view of the lapse of time since the conviction, sentence having been imposed on 1 September 2000, the fact that the appellant had actually served five months in custody before obtaining interim liberation, the fact that the young complainer would require to go over all the evidence again and the problem of sufficiency of evidence, leave should not be granted. It was added that the complainer's mental age had been, and still was, less than her chronological age and that she had had to give evidence in connection with children's hearing proceedings on other occasions. The advocate depute submitted that this was a serious charge, that the jury had apparently accepted the girl's evidence and that, according to his understanding, there was no reluctance on the part of the girl or her family to engage in further proceedings. In view of the serious nature of the charge, we came to the conclusion that authority for a fresh prosecution should be granted.