Scottish High Court of Justiciary Decisons

Meighan & Ors v. Her Majesty's Advocate [2002] ScotHC 71 (05 June 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Hamilton Lord Kingarth	Appeal Nos C885/00 V881/00 C882/00 OPINION OF THE COURT delivered by LORD KINGARTH in NOTES OF APPEAL AGAINST CONVICTION by (1) BRIAN JAMES MEIGHAN, (2) KEVIN JAMES KANE and (3) DAVID SUTHERLAND PUGH Appellants against HER MAJESTY'S ADVOCATE Respondent _______

 

 

Appellants: G. Jackson, Q.C.; Fairbairns: Shead; George More: Wheatley, Solicitor Advocate; Wheatley & Co.

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

5 June 2002

1. On 31 October 2000 the appellants were each found guilty in the High Court in Edinburgh of a charge which (directed against all three) alleged that

"On 20 November 1999 at 3/1 Little France House, 4 Craigour Place, Edinburgh you did abduct (the complainer) seize hold of her by the body, drag her into a bedroom, detain her there against her will and there did assault her, remove her clothing, force her onto a bed, hold her down by bodily pressure, handle her breasts and private parts, repeatedly compel her to take your private members into her mouth and suck same, repeatedly insert your private members into her hinder parts, and did repeatedly rape her".

2. At the trial, as appears from the trial judge's report, the complainer gave evidence in support of the libel. There was no dispute but that the three appellants had been involved with the complainer, on the occasion in question, in the sexual activities referred to in the charge (although the third appellant did not accept that he had had sexual intercourse with her). All three appellants, however, gave evidence to the effect that the complainer had consented to what had happened and indeed had encouraged it. This evidence was apparently consistent with statements which each had given to the police at an earlier stage, of which statements evidence was led. The Crown sought corroboration of the complainer's evidence that she had not been a willing party from evidence given by certain witnesses as to her distress seen afterwards and from evidence of certain injuries in the area of the complainer's vagina and anus spoken to by Dr. Hiremath, which injuries, in her opinion, were indicative of force having been used.
3. In light of the grounds of appeal founded on by all three appellants (which sought in a number of respects to criticise the trial judge's directions to the jury) it is important to set out the basic structure of those directions. At the outset she gave the jury standard directions as to their function as masters of the facts of the case, including a direction that it was a matter for them to decide what evidence they believed and what evidence they disbelieved. She proceeded to give normal directions that the burden of proof was on the Crown. In the course of these directions she said:

"There is no burden of proof on an accused person. He does not have to prove anything. He does not have to give evidence or even to lead evidence, although the accused in this particular case have".

She directed them, in standard terms, that the standard of proof which the Crown required to meet was proof beyond reasonable doubt. In the course of these directions she said:

"So, if having heard the whole evidence you are left with a reasonable doubt as to whether the Crown has proved the guilt of an accused you must acquit him".

Thereafter she directed them, again in standard terms, on the need for the Crown case to be corroborated, in the course of which she specifically directed that

"...corroboration only applies to the Crown. An accused person does not have to corroborate anything".

She then gave legal directions as to the crimes alleged in the indictment, including, in particular, rape. In the course of these directions she indicated inter alia

"The important thing to consider is...whether it is established that the woman remained an unwilling party throughout".

She also told them that they would appreciate

"that if an adult woman consents to all the things you heard described, no crime is committed and in the present case the only person who tells you that she did not consent is (the complainer)".

She directed them that as a matter of law if a man genuinely or honestly thought that the woman was consenting he would be entitled to acquittal (a direction perhaps unnecessarily favourable to the appellants given the stark issue of fact in the trial) and, in the course of these directions, said inter alia

"....and of course if you are left with a reasonable doubt for any reason and from wherever on the evidence that doubt arises, you must acquit".

4. Thereafter, as the trial judge informs us in her report, she deliberately chose not to summarise the evidence in the trial because

"The evidence was fresh in the jury's minds. The speeches of the Advocate depute and the defence covered many aspects of the evidence. It seemed to me unnecessary and possibly not advisable to attempt to summarise the evidence for the jury".

She did, however, go on to tell the jury of "one or two legal matters which are relevant", in the course of which she did refer to certain of the evidence. In particular she directed them that, even if they believed the complainer, they would still require to find corroboration of her evidence. In that connection she gave them directions as to the circumstances in which distress could provide such corroboration. In the course of these directions she said

"So there are two important things to note in connection with distress as corroboration. Firstly, you will remember that some witnesses in this case noticed what would be described as distress, others didn't. You have to weigh up the evidence and decide what you make of it because you will appreciate, I am not going to go through the evidence in any way, that is not my function, but some seemed to notice distress, others didn't. Now secondly ladies and gentlemen you have to approach any evidence about distress with considerable caution. Obviously many things can cause a woman to become distressed. Drink, late hours, emotional upset, fatigue, pain, a feeling that you have done something which you should not have done, something which is going to be difficult to explain when you got home, all sorts of things can cause distress".

She directed them further that another potential source of corroboration was the evidence of Dr. Hiremath "However," she continued,

"again I have to give you an important warning. You heard it being put to Dr. Hiremath in cross examination that the injuries, that is the tears, the swelling, the reddening, such as were described to you by Dr. Hiremath these injuries could have, and this has been put to the doctor, these injuries could happen in the course of vigorous and prolonged consensual sexual activity, so it is being suggested that when two adults consented to sex and had vigorous and prolonged sexual activity that these injuries might occur and also it was put to the doctor in cross-examination that any immediate pain could be dulled to some extent by alcohol. Now it is a matter for you, ladies and gentlemen, but my recollection is that Dr. Hiremath agreed to some extent with these propositions. Precisely what she said is a matter for your memory. So ladies and gentlemen if you accept the evidence of (the complainer) and you are looking at the injuries, the evidence about the injuries, you still have to approach that evidence with considerable caution and you have to decide what you make of the evidence about the injuries and whether you think that her injuries corroborate what she told you about not consenting to anything and about force being used and remember if you are left with a reasonable doubt as to (the complainer's) evidence or about the distress or about the injuries or about the cause or causes of either the distress or the injuries you must acquit".

5. Thereafter the trial judge gave the jury directions, which were not criticised in this appeal, on the law of concert and as to the need to consider the case against each accused separately. She further gave directions - which before us it was accepted were accurate so far as they went - to the effect that, so far as the police interviews were concerned, a statement in such an interview by one appellant could not be used in evidence against either of the others. Thereafter the learned trial judge concluded her charge by giving the jury standard directions as to the verdicts which were open to them.
6. On behalf of the first appellant senior counsel submitted that the trial judge had failed properly or adequately to direct the jury in a number of respects. It was submitted in the first place that she had failed to give any account of the appellant's evidence. Secondly, she had failed to give standard directions on how the jury should approach that evidence and in particular directions that if they believed the appellant's evidence or if it raised a reasonable doubt in their minds they must acquit. Although it was accepted that the absence of such directions was not in every case fatal to a conviction (reference in particular being made to Harrison v. H.M. Advocate 1993 S.C.C.R. 1087 and in particular to the opinion of the Lord Justice Clerk (Ross) in that case, and also, in passing, to Hughes v. H.M. Advocate 1997 S.C.C.R. 277) this was a case where, as in Murray v. H.M. Advocate 2000 S.C.C.R. 1, the absence of such directions could be said to have amounted to a material misdirection. Thirdly, it was submitted that such reference as there was in the charge to the evidence (albeit in the context of certain legal directions) was unbalanced in that the emphasis was upon the Crown case alone. Reference was made to Shepherd v. HMA 1996 S.C.C.R. 679. This was such as to render the charge as a whole unbalanced. Illustrative of that was the passage in which reference was made to the police interviews. Finally, senior counsel was at pains to stress that, even if each of these individual criticisms was thought, on its own, to be insufficient, the cumulative effect of all of the criticisms was such as to demonstrate that the trial judge did not properly, fairly or adequately deal with the defence position - as a result of which a miscarriage of justice had occurred.
7. Counsel for the second appellant and the solicitor advocate for the third appellant broadly adopted the arguments addressed on behalf of the first appellant. It was stressed that the issue in the present trial, while admittedly a sharp one, could not be said to be as straightforward as the issue in the case of Murray and that in these circumstances the absence of the standard directions referred to in the second specific attack on the judge's charge could be said to be even more critical.
8. The Advocate depute submitted that there was insufficient force in the criticisms made on behalf of the appellants - whether taken individually or cumulatively - to justify the view that there had been any material misdirection. In particular, while it was desirable that standard directions of the type referred to in the second argument presented be given in any case where an accused gives exculpatory evidence, it could not be said in the circumstances of this case, looking at the charge as a whole, that the absence of these directions had led to a misdirection overall.
9. We have come to the view that the submissions on behalf of the Crown are to be preferred.
10. In the first place - in relation to the alleged failure to give any account of the appellants' evidence - it is well recognised that there is no general obligation on a trial judge to attempt to summarise the evidence. The degree to which a trial judge may feel it necessary to refer to the evidence is, as was stressed, for example, in Shepherd v. H.M. Advocate, a matter for the discretion of the trial judge and one that he or she is best qualified to make in the context of the trial. As was said in that case,

"......he is in the best position to understand what had been the real issues of fact canvassed at the trial and the extent to which the jury might benefit from further clarification" (page 684).

and further:

"...we are entitled to proceed upon the basis that his judgment was that the material factual matters and evidential conflicts had been fully explored and analysed during the trial and in the submissions by counsel to the jury" (page 686).

The reality is that in this case the jury had heard evidence not only of the three police statements given by the appellants but evidence from each of the appellants, and three speeches, in which the basic position of the appellants (namely that the complainer had consented) was no doubt made abundantly clear. In these circumstances the decision of the trial judge not to rehearse the evidence cannot, we consider, readily be criticised. It is true that she made no detailed reference to the evidence given by the appellants, but nor did she attempt any detailed rehearsal of the complainer's own evidence. As it was she did remind the jury that each of the appellants had chosen to give evidence and, at least by implication, of the tenor of that evidence in so far as she reminded them that "in the present case the only person who tells you that she did not consent is (the complainer)".

11. Secondly, although the authorities suggest that in any case where exculpatory evidence is given by an accused it is preferable and desirable to give the standard directions referred to, it is a question of circumstances in any case as to whether a failure to do so can be said to have led overall to a misdirection. As was said in Hughes v. H.M. Advocate

"The sufficiency of the directions in regard to the exculpatory effect of the evidence given by a particular accused must be decided against the background of the particular case and charge as a whole" (page 285).

The court there specifically agreed with the approach which Lord Morison had adopted in Harrison v. H.M. Advocate, to the effect that whereas it was particularly desirable to give the standard directions in a case where a special defence had been put before the jury, in which case there was a risk that the jury might think the accused required to prove the proposition which it contained, there was less risk in other cases of the jury being misled into thinking that an accused had to prove anything. In Harrison v. HM Advocate the position of the accused, tried on a charge of attempting to break into a bank with intent to steal, was that he had not been in the bank or had anything to do with any attempt to break into it, although he had, by chance, been nearby at the relevant time. His evidence was described by Lord Morison as straightforward. In these circumstances he took the view that it was unnecessary for the sheriff to have added that if they believed this evidence they had to acquit the appellant and indeed that at least some of the jurors might justifiably have regarded such a direction as an insult to their intelligence. Although it was his Lordship's view that it would have been better if the sheriff had reminded the jury that if the defence evidence raised a reasonable doubt they would be bound to acquit, nevertheless, in circumstances where the jury were directed that the burden of proving guilt beyond reasonable doubt rested on the Crown, and that there was no burden on the accused to prove anything, and further that the benefit of any reasonable doubt would require to go to the accused, it was not considered that there was a risk that the absence of the standard directions could have misled the jury in any way.

12. We have come to the view that although these standard directions should in this case have been given, it cannot, in all the circumstances, be said that their absence led to the jury being misdirected. The essential position of each of the appellants in their police statements and in evidence - namely that the complainer had consented to the various sexual acts - was straightforward. Given the clear directions that if a woman consented no crime was committed and that corroboration only applied to the Crown case, the jury cannot, we consider, have been in any real doubt but that if they believed the evidence of an appellant they would be bound to acquit. Further, given the clear directions that the defence did not need to prove anything, that the onus of proof was on the Crown throughout and that the standard of proof which the Crown required to meet was proof beyond reasonable doubt, and, further, the general directions that if "having heard the whole evidence you are left with a reasonable doubt as to whether the Crown has proved the guilt of an accused you must acquit him" and "if you are left with a reasonable doubt for any reason and wherever on the evidence that doubt arises you must acquit", it cannot, we consider, be said that it amounted to a misdirection not to tell the jury specifically that if an appellant's evidence raised a reasonable doubt they would be bound to acquit. The case of Murray v. H.M. Advocate can, we consider, readily be distinguished. In particular in that case not only were the standard directions omitted but the sheriff failed to direct that corroboration was only required for proof of guilt by the Crown. Also the sheriff chose to give what was arguably an incomplete and inaccurate account of the appellant's evidence. The case of Hughes v. H.M. Advocate appears not to have been before the court.
13. Although, therefore, we have come to the view that the absence of these standard directions cannot, in this case, be said to have led to a miscarriage of justice, it is perhaps as well to recall the words of the Lord Justice Clerk Harrison v. H M Advocate where, at page 1094, he said

"Judges and sheriffs would, however, be well advised in future cases to give juries directions of the kind desiderated in the grounds of appeal. To repeat what was said in Dunn v. H.M. Advocate [at page 345] 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'".

14. Thirdly, as regards the alleged imbalance in the references which the trial judge made to the evidence, it is important, we consider, to recognise that she deliberately chose not to refer to the evidence in the sense of summarising it. If she had chosen to do so plainly there would have been a duty upon her to make sure that she did so in a fair and balanced way. What she chose to do, however, was to give legal directions which arose from certain aspects of the evidence and in particular directions relative to what could, as a matter of law, amount to corroboration. In doing that she was, it seems to us, balanced and fair, in that she stressed very clearly the questions raised by the defence in relation to the possible interpretation of evidence relating to the complainer's distress and the medical evidence. As to the passage in which the trial judge referred to the prior statements of the appellants, this was not, of itself, criticised as being wrong in law and indeed it was not referred to in any of the written grounds of appeal . While the words in which the trial judge expressed herself on this matter could perhaps have been better chosen, the basic import of what she was saying was, we consider, reasonably clear, and while these directions might have been fuller, we are not persuaded that they can, as was argued, be regarded as illustrative of a general lack of balance.
15. Finally, while there may be cases in which it is the cumulative effect of a number of criticisms rather than consideration of the individual criticisms on their own which can lead to the conclusion that there has been a misdirection overall, we are not persuaded that this is one of them.
16. In all the circumstances we shall refuse the appeals of all three appellants.