Scottish High Court of Justiciary Decisons

Jones v. Her Majesty's Advocate [2002] ScotHC 330 (05 December 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Cameron of Lochbroom Lord Marnoch	Appeal No: C25/01 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL AGAINST CONVICTION and SENTENCE by BRENDAN NOEL JONES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: C. Shead; Belmonte & Co.

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

5 December 2002

1. The appellant and his co-accused were found guilty, after trial in Edinburgh Sheriff Court, of a charge of theft of 340 cases of spirits and a quantity of wooden pallets from a bonded warehouse in Edinburgh. In the appellant's appeal against conviction all of the grounds of appeal relate to the directions given by the sheriff to the jury in connection with the question whether, given that the articles had been stolen, the appellant was guilty of that theft.
2. In the course of his charge the sheriff gave certain general directions to the jury before referring to the evidence which they had heard. These included a passage in which he gave them directions in regard to statements which each of the accused had made to the police, to which we will require to return later in this Opinion.
3. The sheriff outlined for the jury the Crown case against the appellant, which included evidence that he had collected the cases and pallets from the warehouse on behalf of a transport company which had no connection with these items. This was at a time when there was a skeleton staff at the warehouse. The sheriff referred to the Crown's reliance on what the appellant was wearing and how he behaved both at the warehouse and when he returned to the premises of his own employers. He also referred to the fact that the Crown relied on his statement to the police in which he admitted collecting the spirits and bringing the consignment back to the premises of his employers where he had to unload it because he had to take a delivery to Irvine. When he returned he loaded the cases of spirits into another vehicle and took it to a yard in the vicinity of Dalkeith.
4. The sheriff then went on to remind the jury that each of the accused, according to his statement, had indicated that he was not involved in the theft but was an innocent agent or dupe in the onward transportation of the consignment of spirits. To each of them it had appeared to be a legitimate and regular transaction. It was pointed out that the vehicle which the appellant had driven to the warehouse was a works vehicle and easily identified and linked to him. According to the appellant, his suspicions were not raised at the warehouse. He was a known face there. When he returned to his employers' premises the spirits, which comprised a large consignment, were unloaded in the open. The sheriff similarly referred to the statement made by the co-accused.
5. The sheriff then went on to draw the attention of the jury to a number of criticisms of these statements. In the case of the appellant this passage repeated, to some extent, material to which the sheriff had drawn attention in outlining the Crown case. However, the sheriff also pointed out that the Crown founded on the fact that the appellant had admittedly told an untrue story about collecting a fridge/freezer, and had, according to the Crown, spun a tale about someone who had given him instructions to go to the warehouse. The Crown also founded on the fact that the evidence of the police was that the appellant had misdirected their initial enquiries and had not mentioned the fact that he had returned to his employers' premises after uplifting the consignment of spirits from the warehouse.
6. We can deal briefly with the second, third and fourth grounds of appeal. In the second ground the appellant complains that the sheriff misdirected the jury when he said that the accused "are entitled not to lead evidence". It is maintained that the use of the word "entitled" conveyed to the jury that for the appellant not to give evidence involved the use of some exceptional right or a departure from the normal. There is no substance in this point. In the passage where these words appear the sheriff made it abundantly plain to the jury that accused persons did not need to prove their innocence and that there was no standard of proof to be met by the defence. He said that the law presumed the innocence of the accused who could leave it to the Crown to prove their guilt. Accordingly the jury should not assume that the Crown case was proved just because there has been no defence evidence. The remainder of the second ground is concerned with a passage in the charge relating to the treatment of the statement of the appellant to the police, with which we shall deal below.
7. In the third ground of appeal it is complained that, whereas the sheriff stated that he did not intend to summarise the evidence in the case, he thereafter set out references to the evidence in such a way as to give insufficient weight to the case for the defence, and misdirected himself in that, having dealt with the Crown case and then set out the defence position, he had reverted to the Crown case. In advancing this ground of appeal Mr. Shead referred to the well-known case of Shepherd v. H.M. Advocate 1996 S.C.C.R. 679, which provides guidance in regard to the even-handed approach which should be adopted where a judge elects to refer the jury to the evidence which they have heard. Again, we consider there is no substance in this complaint. Mr. Shead failed entirely to satisfy us that there was anything missing from the sheriff's directions. He put the substance of the defence case squarely to the jury. An even-handed approach to the defence case does not necessarily involve setting it out at the same length as the Crown case, since it is obvious that the substance and detail of one may be more extensive than the other. Likewise, we see no objection to the sheriff turning to the Crown response to the defence case where he considered, in the exercise of his discretion, that it was appropriate and useful for him to do so.
8. The fourth ground merely highlights that, in referring to an aspect of the evidence, namely the discovery of the consignment of spirits in the vehicle which the appellant had driven back from the warehouse, he used the words "lo and behold". It is maintained the use of that expression suggested that the sheriff had formed a negative view of evidence which was capable of assisting the appellant's defence. It is difficult to understand how the use of that expression could have been understood as reflecting on the defence case since it occurred in the course of the sheriff's narration of the evidence founded on by the Crown. This ground of appeal is entirely without merit.
9. We turn now to the passage in which the sheriff gave the jury directions as to the treatment of the statement made by each of the appellants to the police, to which the first ground of appeal relates. The Crown led evidence as to the making of the statements by the accused, and founded on parts of each, as we have already noted, as incriminating them.
10. Having pointed out to the jury that there appeared to be no question as to whether the statements were accurately recorded, the sheriff continued as follows:

"There is no challenge on any of these grounds so you may fairly easily decide that these statements are part of the evidence in the case and you then have to decide upon their significance. Now, this sounds a slightly complicated exercise. In evaluating a statement you have to decide first of all if it points to guilt or if it points to innocence or if it combines elements which point in each of these directions. If you thought that either of these statements was wholly incriminatory that's evidence you can rely on in the case against the maker of the statement. It points to his involvement. If you thought that either of these statements was consistent both with guilt and innocence, it's evidence of its contents, you can consider the whole of it and decide if it is true in whole or in part. Now in doing that you may very well want to bear in mind that neither of these statements is made in court, neither of them has been subjected to the test of cross-examination by the procurator fiscal. So what weight you want to put on them is something you would have to decide. If there is other evidence which you accept from other parts of the case which points to guilt then you could disbelieve any part of these statements which point to innocence. If you believe the parts pointing to innocence or if it raises a reasonable doubt in your minds about the guilt of the author of the statement then you would acquit him. If you thought that either of these statements pointed to innocence then what I have to tell you about that is this: the situation is this, ladies and gentlemen, that neither accused has given evidence here and if you thought that either of these statements pointed to innocence they don't vouch the truth of their contents, they only show that the statements were made, they would be no substitute for the accused going into the witness box and telling us under risk of cross-examination what happened. These statements can't be relied on as evidence of proof of what occurred. Their purpose is very limited if the situation is that you regarded these statements as purely exculpatory. These rules, ladies and gentlemen, may sound a bit complicated but when you think about them I think you will find that they are logical and that they are quite easy to apply".

11. It is clear that this passage involves a number of misdirections. First, in his opening remarks the sheriff apparently directed that it was for the jury to decide how each statement was to be classified, according to whether it pointed to guilt or to innocence or contained elements pointing in each direction. However, as was common ground, it is for the court to decide the admissibility of evidence about a statement, and to give directions to the jury as to the purpose for which the statement or parts of it are admissible. It is, on the other hand, a matter for the jury, under suitable directions, to decide what weight, if any, should be given to its contents. Secondly, it was common ground that the statement made by the appellant was a 'mixed statement', that is to say a statement, part of which was capable of incriminating the accused, whereas another part of it was capable of exculpating the accused by way of providing a qualification, excuse or explanation (as is pointed out in McCutcheon v. H.M. Advocate 2002 S.C.C.R. 101 at paras. 10 and 11). It follows that the sheriff was in error in directing the jury to consider whether the statement was purely exculpatory, and, if so, the limited purpose for which it was admissible.
12. In regard to the latter direction we are bound to say that we have difficulty in seeing the practical application in the present case of the proposition that evidence of the appellant's statements was merely proof of the fact that they had been made, since there was apparently no other evidence originating with the appellant with which the statement could be regarded as consistent.
13. Mr. Shead argued that the present case could be usefully compared to Lennox and Boyle v. H.M. Advocate 25 September 2002, unreported, in which the sheriff had given inconsistent directions to the jury, first on the footing that a statement of each of the appellants was purely exculpatory, and secondly on the basis that it was a "mixed statement". Upon the view that the effect of the directions was to exclude, or at any rate to impair, the right of each of the appellants to found on those parts of the statements which were exculpatory of each of them, the court concluded that there had been a miscarriage of justice, and the appeals against conviction were allowed.
14. As against this submission the Advocate depute contended that there had been no miscarriage of justice. He pointed out that the sheriff put before the jury a summary of the Crown case and the defence case, each of which relied on different parts of the statement of the appellant to the police as being the truth. In particular he had invited the jury to consider the explanation which had been given by the appellant for the actions on which the Crown founded in order to establish his guilt.
15. We note that the sheriff ended his discussion of the evidence by stating:

"I can tell you that as far as the law is concerned there is sufficient evidence to hold the commission of this crime proved and also to hold the involvement of each of the accused in it proved. You now have to decide if in fact all that has been proved. It is up to you. It is your decision what conclusion you reach. If you believe the exculpatory parts of the statement of either of the accused, if you take the view that this was, either of these were mixed statements or if you believe any other bit of evidence which exculpates the accused, acquit them. If you don't or the evidence leaves you with a reasonable doubt about the Crown case, again you must acquit. But if you are satisfied beyond reasonable doubt that either of them is guilty of this charge then your duty is to convict".

16. This passage also shows that the jury were invited to consider whether they accepted the exculpatory parts of the statement, or at any rate whether they regarded them as raising a reasonable doubt as to the guilt of the accused. It is true that, as expressed by the sheriff, this is dependent on the jury taking the view that the statement was a "mixed statement". This expression was not defined by the sheriff, but we consider that the jury would have realised that it referred to a statement containing both incriminatory and exculpatory parts. Taking a realistic view of the circumstances of the present case, and in particular the way in which parts of the statement were heavily relied upon by the Crown, as is reflected in the sheriff's charge, we are left in no doubt that the jury would have treated the statement as being of that nature, so that they would have applied the sheriff's directions in regard to such statements. For these reasons we consider that the Advocate depute was well-founded in submitting that there was no miscarriage of justice.
17. We should add that part of the second ground of appeal was that the sheriff had implicitly criticised the appellant for not giving evidence at the trial because the limited value of a purely exculpatory statement had been contrasted with evidence given on oath from the witness box. There is no merit in this complaint. Where a direction in regard to a purely exculpatory statement is appropriate, there is no reason why evidential significance of that statement should not be compared with evidence given from the witness box.
18. In the circumstances we are satisfied that this appeal is not well-founded. It will accordingly be refused.