Scottish High Court of Justiciary Decisons

Nelson v. Her Majesty's Advocate [2002] ScotHC 70 (05 June 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Osborne	C913/00 OPINION of THE LORD JUSTICE CLERK in NOTE OF APPEAL AGAINST CONVICTION by DOUGLAS SCOTT NELSON Appellant against HER MAJESTY'S ADVOCATE Respondent _____________

Appellant: Brown; Drummond Miller, WS

Respondent: Turnbull, QC, AD; Crown Agent

 

5 June 2002

Introduction

1. The appellant was tried at Lanark Sheriff Court on 16, 17 and 20 November 2000 before Sheriff Thomas Welsh, QC and a jury on a charge of assault to severe injury and permanent disfigurement. He was convicted by a majority verdict and sentenced to three years imprisonment.
2. The complainer was the appellant's cohabitant. Her evidence was that after certain threatening behaviour on the part of the appellant, she ran from the house where they lived and was pursued across the street by the appellant. He caught up with her at a grass verge and stabbed her with a knife. The complainer's friend, Rhona Dornan, came upon the appellant and the complainer at the locus. The appellant was standing holding a knife. The complainer was lying bleeding on the ground and crying for help. That was the essential evidence for the Crown.
3. The appellant gave evidence. He said that the complainer had gone out of the house and, about five to ten minutes later, someone had come to the door and told him that something had happened to her. He went outside and found the complainer, Rhona Dornan and others in a group further up the street. He did not approach them. He did not know how badly the complainer was injured. His mother had arrived at the scene and he and his mother had gone into the house. The appellant's mother generally confirmed the appellant's evidence of what happened after she arrived on the scene.

The sheriff's charge to the jury

4. It is not disputed that in directing the jury on corroboration the sheriff failed to define for them what the expression corroboration means (cf. Callan v HM Adv, 1999 SCCR 57). It is also not in dispute that the sheriff failed expressly to direct the jury (1) that evidence led for the defence did not require to be corroborated, and (2) that if they believed any exculpatory evidence led for the defence, or if it raised a reasonable doubt in their minds as to the guilt of the appellant, they must acquit.
5. For reasons that I will give later, two passages in the sheriff's charge acquire particular significance in the light of these omissions. The first of these came at the conclusion of the sheriff's recital of the main points of the prosecution evidence. He said the following:

"Now, that is the Crown's case, ladies and gentlemen. One has now to move to the defence case and the evidence in relation to the defence case is just as important as it is in relation to the events of the evening of the 1st of August of this year and I have to direct you that you will require to give as much time and attention, thought, consideration and weighing up of the defence case as you will give to the Crown case."

The sheriff then rehearsed the main points in the defence evidence and said the following:

"So, ladies and gentlemen, that really is the two sides of the coin, those are the two sides of the argument and your function is to weigh up the evidence and decide where the truth lies and to give a verdict according to that evidence. So there you have it, ladies and gentlemen. That is the position. You can only convict if you are satisfied beyond a reasonable doubt that the Crown has established guilt."

 

The ground of appeal

6. The ground of appeal is that the failure of the sheriff to direct the jury on the matters that I have mentioned constituted a misdirection which in the circumstances of the case amounted to a miscarriage of justice.

Submissions for the Parties

7. Counsel for the appellant argued that while the failure to define corroboration was not of itself a fatal error in the circumstances of this case, the cumulative effect of that and of the other omissions to which I have referred was to make the charge so deficient as to invalidate the conviction (Murray v HM Adv, 2000 SCCR 1).
8. The advocate depute accepted that the sheriff ought to have given the directions referred to but argued that, notwithstanding the deficiencies in the charge, the sheriff had impliedly conveyed those directions in the course of his other directions. He directed them on the need for proof beyond reasonable doubt. He told them what evidence could and could not constitute corroboration of the complainer. A failure to define corroboration could not have misled the jury in a case such as this where the issue was so clearly focused (Wilson v HM Adv 1976 SCCR Supp 126). In his treatment of the defence case, the sheriff had reminded the jury that the burden of proof was on the Crown at all times; that the appellant did not require even to give evidence and that he bore no onus of proof; and that if they had reasonable doubt as to the Crown case, they must acquit. The sheriff had rehearsed the appellant's evidence and had concluded his remarks with the reminder that the jury could convict only if satisfied beyond reasonable doubt. The sheriff had narrated the essentials of the defence evidence. In a straightforward case such as this, he had made it clear that the accused need prove nothing. In the circumstances it could not reasonably be said that there had been a miscarriage of justice.
9. The directions to be given in any particular case were a matter for the sheriff's judgment in the circumstances of the case (McPhelim v HM Adv 1960 JC 17). The failures were technical failures only. The case was similar to Harrison v HM Adv (1993 SCCR 1087) where the matters omitted in the sheriff's charge were held to have been implicit in his directions overall.

Conclusion

10. In my opinion, this appeal must be allowed.
11. Forty years ago, there was greater diversity in practice among judges and sheriffs as to the way in which they charged a jury. The advocate depute has referred us to the decision of this court in McPhelim v HM Adv (supra) in which the extent of the trial judge's discretion was emphasised. While I accept that a charge to a jury contains much that is at the discretion of the trial judge, I greatly doubt whether the charge that was examined in that case would pass muster by the standards of today. In recent years there has been prolific case law on the subject of what are essential directions and on the terms in which such directions should be conveyed. As a result, judges and sheriffs today have considerable assistance from authority on the subject. The standard formulations now in use have stood the test of time and the scrutiny of this court.
12. In Dunn v HM Adv (1986 JC 124), Lord Justice General Emslie, in giving the opinion of a Full Bench, observed that a failure to give standard directions appropriate to the case

"may result in encouraging appeals on the ground of alleged misdirection, in which a conviction may be perilled upon a favourable construction being given to the charge as a whole." (at p. 130)

13. In Harrison (supra), Lord Justice Clerk Ross said:

"For the foregoing reasons, I am satisfied that, although the sheriff omitted to give directions which he ought to have given, there was not in the circumstances any miscarriage of justice. Judges and sheriffs would, however, be well advised in future cases to give juries directions of the kind desiderated in the grounds of appeal." (at p. 1094F)

The Lord Justice Clerk then repeated the statement made in Dunn v HM Adv (supra) that I have quoted (cf. also Smith v HM Adv, 1994 JC 56, Lord Justice Clerk Ross at p. 60).

14. Since these statements were made, judges and sheriffs have been given further guidance. In January 2000, Judicial Studies Scotland issued Charging the Jury, a manual of guidance for judges and sheriffs. This was the result of an extensive exercise, the major part of which was undertaken by Lord Davidson at the invitation of the then Lord Justice General, along with a working group consisting of the former Lord Justice Clerk Ross, Lord Philip and Sheriff Stoddart. This manual has been regularly updated by a working group of the Judicial Studies Committee. It is a comprehensive guide to the constituent parts of a charge with references to all relevant case law and with guidance as to the terms in which specific directions should be given. This manual sets out what are nowadays regarded as standard directions. While judges or sheriffs need not follow any set form of words in giving such directions, they should nonetheless convey the substance of each such direction in the general part of the charge.
15. I accept straightaway, as Lord Justice Clerk Thomson said in McPhelim (supra at p. 21), that a good charge is one that ought to be addressed to the fifteen people in the jury box and not to the Court of Appeal; and that a charge that meticulously covers every theoretical aspect may be so complicated that the jury's capacity to appreciate what they are being told may be blunted long before the real matters with which they have to deal are reached. But in my view the greater practical danger lies in the case where the judge or sheriff fails to give a standard direction and thereby needlessly puts at risk a conviction that has a sound basis in the evidence.
16. In his Report on the case, the sheriff does not explain why he did not give the directions referred to in the grounds of appeal. Whatever his reasons were, the result of this appeal has been that the Crown has had to attempt to support the conviction by arguing that in various passages in the charge the sheriff impliedly gave directions that he ought to have given expressly.
17. In my view, the sheriff's failure to define corroboration was not a fatal misdirection in the circumstances of this case. I think that the meaning of what corroboration is emerges clearly enough in the sheriff's directions regarding the evidence of Rhona Dornan.
18. The real and substantial misdirection in this case was the sheriff's failure expressly to direct the jury (1) that the requirement of corroboration did not apply to the defence case and (2) that if they believed any of the exculpatory defence evidence, or if it raised a reasonable doubt in their minds as to the guilt of the accused, they must acquit (King v HM Adv, 1985 SCCR 322; Hughes v HM Adv, 1997 SCCR 277). My own view is that it might have been useful for the sheriff to have added that even if the jury disbelieved the defence evidence, in whole or part, they should nonetheless acquit if on the whole evidence any reasonable doubt remained in their minds; but that was not, I think, essential.
19. The sufficiency of the directions in regard to the exculpatory effect of the evidence given by the accused must be decided against the background of the particular case and the charge as a whole (Hughes v HM Adv, supra, Lord Justice Clerk Cullen at p. 285D). Notwithstanding these failures, there might have been some force in a submission that, as was held in Dunn v HM Adv (supra) and in Harrison v HM Adv (supra, Lord Justice Clerk Ross at p.  1093E), directions that the sheriff failed expressly to give were nonetheless implicit in the whole terms of the charge, had it not been for a special feature of this case that in my view precludes that course. It relates to the two passages in the charge that I have quoted. Perhaps from the first of these, but certainly from the second, the sheriff appears to have put the issue to the jury as being a contest between two rival bodies of evidence, without reminding the jury that this was not an equal contest. One side bore the demanding onus of proof beyond reasonable doubt. The other side bore none. I have in mind particularly the remark regarding the two sides of the coin and the two sides of the argument, and the statement that the jury's function was to weigh up the evidence and to decide where the truth lay. That last remark, which in the context of a full and accurate charge might have been quite innocuous, acquired an unfortunate significance in the light of the omissions to which I have referred. It could well have confused the jury as to the proper approach to the defence case. Their task was not simply one of deciding where the truth lay. Even if they regarded the whole defence evidence as being untruthful in all its essentials, they were still obliged to acquit if overall they were left with a reasonable doubt in their minds. In Harrison (supra) the sheriff did at least convey the substance of that in the passage quoted in that case at page 1096F. That cannot be said in this case. This case is more akin to Murray v HM Adv (supra), where an appeal on similar grounds was allowed.
20. For these reasons I propose that we allow the appeal and quash the conviction.
Nelson v. Her Majesty's Advocate [2002] ScotHC 70 (05 June 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Osborne	Appeal No: C913/00 OPINION OF LORD OSBORNE in NOTE OF APPEAL against CONVICTION by DOUGLAS SCOTT NELSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: ____________

 

 

Appellant: A Brown; Drummond Miller

Respondent: Turnbull, Q C; Crown Agent

5 June 2002

21. The circumstances which have given rise to this appeal, and the submissions made on behalf of the appellant and the respondent have been fully described by your Lordship in the chair. It is therefore unnecessary for me to repeat what has already been said about them. However, I intend to make certain observations of my own upon the subject matter of the appeal.
22. While the failure of the sheriff to explain to the jury the meaning of the term corroboration was undoubtedly a departure from normal practice and, as such, unfortunate, that failure cannot, in my opinion, be seen as amounting to a miscarriage of justice in the circumstances of this case. In the course of his charge between pages 8 and 13, the sheriff considered the evidential basis of the Crown case in some detail. In particular, he considered the possible sources from which corroboration might or might not come. I consider that what he said in that part of the charge was enough to indicate to the jury by implication what was the nature of corroboration. However, having reached this conclusion, I would not wish to be understood as suggesting that the omission from a charge of an explanation of the meaning of the term corroboration in other circumstances would not amount to a miscarriage of justice. In my view, it is possible to envisage a case of greater complexity than this where such an omission would be fatal to any conviction. For example, if there were evidence of a series of extra-judicial admissions by an accused person, a proper explanation of the meaning of corroboration would be required to avoid a miscarriage of justice.
23. A more serious shortcoming in the present charge is the absence of any direction that the requirement of corroboration did not apply to the defence evidence. In Murray v. Her Majesty's Advocate 2000 S.C.C.R. 1 at page 4, such a direction was described as "standard". As such, it was one which, in my opinion, ought to have been given. While it may be possible to imply the relevant proposition from what was said in the charge at pages 4-5, to the effect that no burden of proof lay upon the accused, the matter is not made clear.
24. A further serious shortcoming in the charge is the omission of a direction to the jury that if any exculpatory defence evidence is believed, or raises a reasonable doubt in the mind of the jury about the Crown's case, there ought to be an acquittal. Again, such a direction was described as "standard" in Murray v. Her Majesty's Advocate. While the purport of such a direction may be capable of implication from the more general direction that if the jury have a reasonable doubt about the Crown case they must acquit, it is undesirable that such an important matter should be left to implication.
25. I recognise that the absence of the foregoing directions might not be fatal to a conviction in all cases, as appears from the remarks of Lord Justice Clerk Ross in Harrison v. Her Majesty's Advocate 1993 S.C.C.R. 1087 at page 1093. However, where, as here, there was exculpatory evidence by the accused and such evidence from another defence witness, the omissions are a cause for serious concern. In the particular circumstances of this case, I have been persuaded that the omissions mentioned do amount to a miscarriage of justice, having regard to what was said by the sheriff at pages 25-26 and 29 of his charge. Those passages have been quoted by your Lordship in the Chair. It appears to me that these omissions, in association with those passages are likely to have left the jury in confusion as to how they should approach the defence case. They could well have supposed that their task involved a balancing exercise, the Crown case being weighed against that of the defence. Plainly that would have been an erroneous view. I consider that the possible implication of the directions concerned from other directions which were given by the sheriff cannot be relied upon as sound guidance for the jury.
26. In Harrison v. Her Majesty's Advocate at page 1094, the Lord Justice Clerk (Ross) said this:

"Judges and sheriffs would, however, be well advised in future cases to give directions of the kind desiderated in the grounds of appeal. To repeat what was said in Dunn v. Her Majesty's Advocate failure to take such a course:

'may result in encouraging appeals on the ground of alleged misdirection, in which a conviction may be perilled upon a favourable construction being given to the charge as a whole.'"

27. In my opinion, that consideration constitutes a good reason why what must be regarded as "standard" directions should in fact be given to juries. Since January 2000, when the Judicial Studies Board for Scotland issued guidance to judges and sheriffs in the document "Charging the Jury", there has been available material to enable such directions to be given without any difficulty. I would not for a moment suggest that a presiding judge or sheriff should necessarily follow exactly the wording set forth in that guidance. Nevertheless, the substance of what is set forth there should form part of the ordinary charge.
28. In the course of the argument before us some reliance was placed by the Crown on McPhelim v. Her Majesty's Advocate 1960 J.C. 17. While the judgment of the Lord Justice Clerk (Thomson) in that case, in my respectful opinion, contains much wise advice to those having the responsibility of charging juries, it is clear from the facts of the case itself that the practice in charging juries and the expectations of this court in relation to that task are now very different from what they were at the time of that decision.
29. In all these circumstances, I agree with the proposal of your Lordship in the Chair that this appeal should be allowed and the conviction quashed.