Scottish High Court of Justiciary Decisons

Gracie v. Her Majesty's Advocate [2002] ScotHC 336 (17 December 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Cameron of Lochbroom Lord Marnoch	Appeal No: C234/01 OPINION OF THE COURT delivered by LORD CAMERON OF LOCHBROOM in APPEAL AGAINST CONVICTION and SENTENCE by ALAN GRACIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: C. Shead; Drummond Miller

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

17 December 2002

1. The appellant went to trial in the sheriff court at Airdrie on an indictment containing three charges. He pleaded guilty to the third charge, namely one of failing to appear at a diet. At the conclusion of the evidence for the Crown the remaining charges were amended by way of deletion on motion of the procurator fiscal depute. Thereafter a motion of no case to answer was made in respect of each of the two charges. The sheriff sustained the submission in respect of the first charge. He repelled the submission in respect of the second charge. Thereafter the appellant gave evidence. The jury convicted him by a majority of the second charge as amended.
2. The second charge initially libelled that "on various occasions between 1 August 1995 and 15 January 1999, both dates inclusive, the exact dates being to the Prosecutor unknown" at addresses in Airdrie, the appellant used lewd, libidinous and indecent practices and behaviour towards a child, L.M., and

"did place (his) hands under her clothing, handle her legs, handle her private parts on top of her clothing, handle her naked private parts, insert (his) finger into her private parts, play videos of a sexually explicit nature in her presence and induce her to view said videos".

At the conclusion of the evidence for the Crown the procurator fiscal depute was allowed to amend the libel by the deletion of the references to handling the child's legs, to handling her naked private parts, to inserting a finger into her private parts and to playing videos of a sexually explicit nature in her presence and inducing her to view the videos.

3. The sheriff tells us that at the conclusion of the Crown case the main evidence came from the child. The only corroboration was said to come from a telephone conversation between the appellant and his sister. The sheriff records the evidence of his sister as follows, namely that in the course of that conversation the appellant had told her that he would be pleading guilty. This was against a background that on the previous day his sister had told him during a telephone call that there was an allegation of a sexual nature against him and that it referred to L.M., an allegation which was at that time denied by the appellant.
4. We were told that prior to the trial the Crown and defence had entered into a Joint Minute. This had formed part of the evidence before the jury. The Joint Minute stated amongst other things that

"at about 0130 hours on 16 January 1999 the accused attended voluntarily at Airdrie Police Office where he was interviewed by police officers under tape recorded conditions between 0155 and 0244 hours regarding allegations of a sexual nature relating to (L.M.). Throughout the course of the interview the accused denied all the allegations put to him and was released without charge."

In addition, we were informed that this interview preceded the telephone call founded upon by the Crown for corroboration of the child's evidence. No evidence was otherwise led as to the content of the tape-recorded interview.

5. The sheriff goes on to tell us that in the context of the earlier telephone call from the appellant's sister, he was of the view that the appellant's statement that he would be pleading guilty could be taken by the jury as an admission of guilt and thus corroborative of the evidence given by L.M. For that reason he had repelled the motion of no case to answer. We should add that although the appellant gave evidence and admitted that he had made the statement in the telephone call, he explained that this had been meant sarcastically and he maintained that he was not guilty of the charge.
6. For the appellant Mr. Shead submitted that the statement made in the telephone call was not capable of constituting corroboration of the charge as it stood at the end of the Crown case. He pointed out that the charge had been amended by way of deletion. The statement, even if construed as an admission, was lacking in specification. There was no material in the evidence to identify the allegations which had been put to the appellant otherwise than as stated in the Joint Minute. There could be no certainty as to the meaning of the statement or as to what it was directed. Accordingly the sheriff had erred in law in rejecting the submission of no case to answer.
7. In reply the Advocate depute pointed out that the remark had been made by the appellant in the telephone call to his sister after he had been given notice by his sister of the fact that an allegation of a sexual nature involving L.M. was being made and after the police interview on 16 January 1999. It was open to the jury to construe the remark as an admission of sexual wrongdoing consistent with and supporting the evidence of L.M. speaking to the conduct specified in the amended charge. Reference was made to Stirling v. MacFadyen 2000 SCCR 239 and to Lauchlan v. Hamilton 1993 SCCR 1055.
8. In our opinion, the sheriff erred in concluding that the appellant's statement, in the circumstances in which it was made, was such as could reasonably constitute corroboration of a charge of a course of conduct characterised by the sexual behaviour specified in the libel of the charge as amended at the conclusion of the Crown evidence. We note that in his charge the sheriff, when referring to the appellant's explanation in evidence in which the appellant had categorised the remark as that of an innocent man having been made sarcastically, directed the jury that not only did the jury require to be satisfied that the remark was a true confession to wrongdoing but that it could only be corroboration "if it was a confession to the wrongdoing specified in the charge, not some other wrongdoing such as perhaps showing blue movies to the little girl or anything else."
9. We do not consider that the cases cited to us are of assistance. They depend upon their own facts and circumstances. The statement in this case was not made in answer to a specific charge by the police, as in Lauchlan v. Hamilton, nor in response to specific details of a complainer's allegations provided by a third party, as in Stirling v. MacFadyen. In the present case the Crown did not seek to lead any evidence as to the details of the allegations put to the appellant by the police prior to the making of the remark to his sister. The prior telephone call between the appellant and his sister was very general in character. The absence of evidence concerning the details of the police allegations was, in our opinion, fatal in the present case where the allegation of sexual misbehaviour in the charge was of a course of conduct over a period of time and was specifically limited in detail, as the sheriff recognised in his charge. As it was, the jury were left to speculate as to the content and meaning of the statement as an admission of guilt.
10. In these circumstances we are satisfied that the conviction cannot stand and that the appeal must succeed.