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Cite as: [2003] ScotHC 65

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MacDonald v. Her Majesty's Advocate [2003] ScotHC 65 (02 December 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Kirkwood

Lord MacLean

Appeal No: XC199/02

OPINION OF THE COURT

delivered by LORD MacLEAN

APPEAL AGAINST CONVICTION

STEPHEN MacDONALD

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Ogg, Q.C.; Gilfedder & McInnes

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

2 December 2003

[1] The appellant, Stephen MacDonald, on 13 August 2002 was found guilty by a majority of two charges of conducting himself in a shamelessly indecent manner towards two girls when they were in a children's home in Glasgow and the appellant was a house parent there. The first charge related to a single incident within the period from 23 May 1974 to 2 July 1975 when the complainer (N.W.) was between the ages of 5 and 6. The second charge also related to a single incident within the period from 23 May 1974 to 19 August 1975 when the complainer (M.H.) was between the ages of 12 and 13. The appellant was sentenced to 9 months imprisonment. Each complainer gave evidence about the appellant's conduct, but corroboration of their evidence depended upon the application of the principle in Moorov v. H.M. Advocate 1930 JC 68, since, as the sheriff told the jury there was only one witness speaking to each charge.

[2] Four grounds of appeal were advanced before us. The first was in the following terms:

"The trial judge erred in law in refusing to allow defence counsel to cross-examine the complainer, N.W. (charge 1) on the subject of the verdict of an earlier trial involving similar allegations made by her against an accused called McGowan (otherwise known as Marshall). (The jury had found McGowan not guilty). The Crown had elicited in the current trial from the complainer that she had as a matter of fact been abused at the home by McGowan and she said in cross, without objection, that McGowan had been brought to trial. In refusing to allow the defence to elicit that McGowan had been acquitted of her allegations the sheriff erred and a miscarriage of justice resulted; the jury having been left with the impression raised by the Crown's chief, that the complainer truly had been abused by another employee in similar circumstances and that that had been established at trial. Had the jury known of the verdict of the earlier trial it may have affected significantly their view of the credibility and reliability of the witness."

[3] We were informed that the Crown had led evidence from the complainer (N.W.) that she had been abused sexually by another employee of the home immediately before the appellant had behaved in a shamelessly indecent manner towards her. She was also asked in evidence in chief how she had come, 27 or 28 years later, to make complaints first against McGowan and then against the appellant. In cross-examination Mr. Ogg, who appeared for the appellant, asked the complainer without objection if she had given evidence relating to McGowan at a trial which took place earlier in the year. He followed that with a question about the outcome of the trial, his object being, he said, to show that McGowan had been acquitted, thereby undermining or attempting to undermine the complainer's credibility. The question was objected to and the sheriff upheld the objection, on the ground that the verdict of the jury in a separate trial was entirely irrelevant because the jury's reasons for their particular verdict could not be known. Mr. Ogg before us maintained that as a matter of fairness he was entitled, as he expressed it, to put the fact of the trial and its outcome in the balance. We have, however, no hesitation in agreeing with the sheriff for the reasons he gave in his report, that such evidence was irrelevant in the context of the appellant's trial. There is in our view no substance in this ground of appeal.

[4] The second ground of appeal is in the following terms:

"The trial judge erred in law in permitting the evidence of Kathleen McNair as to an alleged de recenti statement by the complainer, N.W., naming the accused as having sexually abused her. The statement or even the circumstances of the making of it or whether it was made at all to Kathleen McNair was never put to the complainer, N.W., by the Crown or anyone else for her comment. In the course of giving her evidence Kathleen McNair admitted in cross-examination that she had spoken to the complainer at court and the complainer had denied ever making a statement regarding the accused or abuse to Kathleen McNair. The evidence of Kathleen McNair was nonetheless left before the jury with submissions in the Crown speech and in the judge's charge to the effect that if believed it could be used to support N.W's credibility and reliability on the question of identification of the accused. The allowing of this evidence by the sheriff, after repelling an objection to its admissibility from the defence, resulted in a miscarriage of justice and the appellant's conviction in respect of this charge should be quashed. In consequence thereof and by operation of the rules of mutual corroboration in Moorov the accused should be acquitted of the remaining charge also."

[5] Mr. Ogg informed us that the complainer did not know the name, Stephen MacDonald, and so she would not have complained about him by name. The fact, however, was that she could not remember telling anyone about what had happened to her until 26 or 27 years later when she was undergoing speech therapy and she told her therapist. She could not even remember Kathleen McNair as a child at the home. The advocate depute confirmed that there was no indication in the Crown precognition that N.W. had made a de recenti statement to Kathleen McNair. For his part he had to live with the fact that N.W. could not remember making such a statement and could not even remember Kathleen McNair being at the home. He added that Kathleen McNair was led by the Crown to give evidence about the appellant being at the home at the material time, but she was unable to identify him.

[6] It is convenient at this point to go on to consider the third ground of appeal which raises the adequacy of the evidence of identification on charge 1; or, as it is put in the ground of appeal, whether there was sufficient evidence which a jury could regard as credible and reliable as proof of the identity of N.W's alleged attacker. She picked out a stand-in at the identification parade on which the appellant stood. In court, however, she identified the appellant, the courtroom having been cleared of all members of the public while she gave her evidence. She explained that at the time of the offence the appellant had a black beard and longer hair. In cross-examination she said that she had no doubt that the appellant was the right man. Mr. Ogg informed us that one of the productions, referred to in evidence before the jury at the trial, was a photograph of the appellant when he was aged 19, which clearly showed that he had a bright red bushy beard. (When he appeared before us he wore a beard which was predominantly grey but which had noticeable traces of red hair). Mr. Ogg referred us to the case of Holland v. H.M. Advocate 2003 S.C.C.R. 616 in which, in delivering the Opinion of the Court, the Lord Justice Clerk (Gill) said at paragraph 50:

"I do not exclude the possibility that there could be an extreme case in which the Crown sought to obtain a dock identification in circumstances so patently unfair that the trial judge would be bound to exclude it (Nulty v. H.M. Advocate 2003 S.C.C.R. 378); or in which an identification once made was shown to be so tainted by unfairness that the trial judge would be bound to desert the diet (cf. Kerr v. H.M. Advocate 2002 S.C.C.R. 275 at para. 22) or perhaps uphold a common law submission. That question can be decided if it arises. But with those possible exceptions, the evidential value of a dock identification is in my opinion a matter for the jury and not the trial judge (King v. H.M. Advocate 1999 S.C.C.R. 330 at page 334F). It is a question of the weight to be given to the evidence and not a question of its admissibility".

In light of that, Mr. Ogg submitted that N.W's identification was irrational. The jury, he said, could not be satisfied with identification in all these circumstances.

[7] The advocate depute responded by saying that the complainer N.W. had positively identified the appellant in court. While there might be doubt about the colour of the appellant's beard at the time of the offence, the complainer did say that the person who abused her had a beard. The question of identification had been fully and carefully put before the jury and it was for them to decide what weight should be given to such evidence.

[8] In his charge to the jury the sheriff said at page 31, line 17:

"You are also entitled on the issue of identification to take into account the evidence of Kathleen McNair. Now you will recall that N.W. said that she didn't report it to Kathleen McNair or to anybody else as far as she recalls and by a backdoor method we heard from Kathleen McNair that that has always been her position, that she still doesn't say that she ever reported it to anyone, certainly not for a long time. That doesn't prevent you from considering the evidence of Kathleen McNair and asking whether she is credible and reliable when she says that N.W. was at some point apparently, when they were both children in the children's home, and it is up to you whether it was closely related in time or not to this incident, that she was hysterical and told her and another girl that Stephen MacDonald had done something to her and you heard the evidence of Kathleen McNair that she and the other girl went along to someone in authority in the home and said that Stephen MacDonald had done this and they received punishment for that."

[9] From that passage it will be seen that the sheriff has included the de recenti statement in his consideration of the evidence relating to identification. As is well-known, evidence from a witness that a complainer in a sexual assault or sexual indecency has made a statement, usually to a confidant, reasonably shortly after the assault or indecency was committed, may be admitted in evidence as an exception to the rule of hearsay evidence, in order to show that what the complainer then said is consistent with the evidence which she has given on oath in court. If it is, the jury may accept her as a credible and reliable witness in these matters about which she complained. But there must be evidence of an original complaint to which the supporting witness can speak. In this case the complainer, N.W., could not remember making any complaint until she spoke to her speech therapist 26 or 27 years afterwards. Not only did she not remember making any complaint to anyone at the home, but also she did not recognise Kathleen McNair as having been a child at the home at the time. Indeed, the complainer thought she had first made the complaint to her speech therapist.

[10] Defence counsel objected at the trial to evidence being led from Kathleen McNair about a de recenti statement made by the complainer. We consider that that objection should have been upheld by the sheriff because there was no evidence from the complainer that such a statement had in fact been made or, if it had been made, what its terms were. It follows that in his charge the sheriff misdirected the jury on this matter in the passage to which we referred above.

[11] It is also to be noted that the sheriff in his charge directed the jury that they could use Kathleen McNair's evidence, if they wished, in support of the complainer's evidence identifying the appellant as the person who behaved in a shamelessly indecent manner towards her. Since, in our view, that part of Kathleen McNair's evidence should not have been admitted in evidence, it cannot be used in the manner the sheriff thought it could be. In respect that the jury were told that they could use her evidence in support of what would appear to be the complainer's somewhat doubtful evidence of identification of the appellant, that, too, was a misdirection by the sheriff.

[12] We need say little about the last ground of appeal. Mr. Ogg maintained that the sheriff erred in refusing to grant his motion to desert the diet pro loco et tempore because, despite the period of adjournment that was granted before the witnesses were recalled to give evidence, he had insufficient time fully to investigate the background and antecedent conduct of the complainer in charge 2, of whom it was suggested that by her evidence the appellant had been "stitched up". Mr. Ogg explained that he had in mind obtaining information by means of a specification of documents of a wide-ranging nature which seemed to us to be "fishing" in character. The decision not to desert the diet was entirely within the discretion of the sheriff, and we are wholly satisfied that he dealt appropriately with the unusual situation which arose and that it could not be said that he had erred in the exercise of his discretion. We therefore refuse this ground of appeal.

[13] Since we are satisfied for the reasons we have given that there was a misdirection in relation to charge 1, there is insufficient evidence to provide corroboration of the complainer in charge 2. We will therefore allow the appeal and we will quash the conviction and sentence, being wholly satisfied that a miscarriage of justice has occurred.