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Cite as: [2004] ScotHC 21

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Kerr v. Her Majesty's Advocate [2004] ScotHC 21 (24 March 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Macfadyen

XC323/03

OPINION OF THE COURT

delivered by

THE LORD JUSTICE CLERK

NOTE OF APPEAL AGAINST CONVICTION

DAVID MOIR NELSON KERR

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

_____________

Act: Forbes; McClure Collins

Alt: McConnachie AD; Crown Agent

24 March 2004

Introduction
[1] The appellant was convicted at Glasgow Sheriff Court on 13 August 2002 on two charges of lewd, indecent and libidinous practices. The complainers, SH and RM, were sister and brother, born in 1979 and 1981 respectively. The offences were alleged to have been committed at the house of their grandparents, with whom they were living at the time, when the appellant was babysitting for them. Both charges related to the period between 1 March 1988 and 31 December 1988, but during the trial the Crown restricted the latitude to the periods 1 June 1988 to 7 November 1988 and 1 August 1988 to 7 November 1988 respectively.

[2] On each of the charges the only direct evidence came from the complainer. The Crown sought convictions on the Moorov principle. The two charges therefore stood or fell together and the credibility of both complainers was crucial. At one stage in her evidence SH said that the appellant had committed the practices libelled in charge 1 throughout a period of a year from about June 1988. That could not be true because from 8 November 1988 to 8 April 1989 the appellant was in custody on remand. The parties entered into a joint minute agreeing that during that period the appellant was never at the locus and had no direct physical contact with either of the complainers. That agreement had a material bearing on the credibility of SH.

[3] SH also said that on numerous occasions RM entered the room when the appellant was abusing her. On such occasions the appellant would take him out of the room and beat him. RM was not asked about this either in evidence in chief or in cross-examination; but in re-examination he volunteered the brief comment that that was not true. The point was not pursued further.

The issues
[4] There are several grounds of appeal, some of which have been expressly abandoned by counsel, and some of which have not been pursued by him in any detail. Three decisive issues remain. They are (1) whether the verdicts were verdicts that no reasonable jury, properly directed, could have returned; (2) whether the sheriff misdirected the jury by saying in effect that they could accept or reject the agreed facts set out in the joint minute, and (3) whether the sheriff's directions on the dates between which the instance of abuse spoken to by RM could have been committed were too complex to be readily understood by the jury and were therefore a misdirection.

(i) The appeal under section 106
[5] The appellant can succeed on the first issue only if he satisfies the demanding test set by section 106 of the Criminal Procedure (Scotland) Act 1995 and explained in King v HM Adv (1999 JC 226) and AJE v HM Adv (2002 JC 341). In our opinion, there is no substance in this ground of appeal. Counsel for the appellant has presented the issue as turning upon the credibility and reliability of SH. He submitted, mainly in the light of RM's evidence and the joint minute, that no jury could reasonably have accepted SH's evidence as a proper basis for conviction. We disagree. In our view, the issues of credibility and reliability that applied to both complainers in this trial were pre-eminently the sort of issues that are for a jury to resolve. We find nothing in the circumstances of this case to indicate that in resolving those issues in favour of the Crown the jury reached an unreasonable verdict.

[6] Counsel referred us to AJE v HM Adv (supra), a case involving sexual offences against young children in which an appeal was allowed under section 106. The circumstances of this case come nowhere near the unusual circumstances of that case. We do not find that case to be of assistance.

(ii) The directions on the joint minute
[7] The sheriff directed the jury on their approach to the evidence as follows.

"So in deciding if the Crown succeeds, you should have regard to all the evidence which you have heard, the oral evidence, the productions, the contents of the joint minutes of agreement which you will remember were read out to you, and decide what of that is acceptable to you and also decide if it satisfies you beyond reasonable doubt of the guilt of the accused on either of the charges which he faces" (at p. 12).

Later, he referred to the credibility of SH in the light of the joint minute as follows.

"Now I want to say something to you, ladies and gentlemen, about credibility and reliability. Now that is a matter which I have already indicated is entirely up to you. It is up to you as jurors to assess the credibility and reliability of the witnesses. In that connection I have noted [SH] as saying that she was abused for about a year from June and July 1988 to June and July 1989, and in this connection, ladies and gentlemen, I would like to refer you to the joint minute of agreement which was reached between the Crown and the defence and I just want to read it out to you. That says that between 8 November 1988 and 8 April 1989 the accused ... was never at the [locus] and that he had no direct physical contact during that period with [SH] or [RM] ... Accordingly, ladies and gentlemen, in the light of that joint minute it is accepted by the Crown that [SH] could not have been abused in the way she describes for the five months period between 8 November 1988 and 8 April 1989. You would therefore be entitled, ladies and gentlemen, to hold that it has been accepted by the Crown that her evidence was wrong, either incredible or unreliable, in that regard and so, ladies and gentlemen, for the five months period when she was nine and when she says that she was staying at [the locus] it is accepted by the Crown that notwithstanding what she said in evidence she could not have been abused by the accused on a daily basis or on any other basis over that period. Now the defence say in that connection well, if [SH] is both incredible and/or unreliable in that respect, how can you say that she is credible and reliable in the other aspects of her evidence. Well that, ladies and gentlemen, is a matter for you to consider" (at pp. 36-37).

In these words, in our opinion, the sheriff implied that it was for the jury to decide whether or not to accept the facts that were set out in the joint minute. His otherwise innocuous use of the expression that it was "accepted by the Crown" that SH's evidence was wrong in that regard, is unfortunately coloured by an earlier direction that he gave in the following terms.

"You have to consider the whole evidence and decide what has been proved and what has not been proved and any views on the facts which the Crown or the defence or I express are merely personal to us. They need not be taken into account by you. You decide on credibility" (at pp. 2-3).

[8] The advocate depute, while accepting that the sheriff expressed himself in an unfortunate way in the first two passages that we have quoted, submitted that the sheriff nevertheless retrieved the situation when he went into greater detail as to the dates on which these offences could have been committed and reminded the jury that it was agreed between the parties that any abuse could not have taken place between 8 November 1988 and 8 April 1989. That passage of the charge, which we need not quote, was not sufficient in our view to set matters right because when he came to it the sheriff failed to mention, let alone emphasise, the significance that the joint minute had to the credibility of SH, upon which both charges depended.

[9] Section 256(3) of the 1995 Act provides, inter alia, that the facts agreed in such a minute are to be "deemed to have been duly proved." In this case, therefore, there can have been no question of the jury's having a choice of accepting or rejecting all or any part of the agreed facts. Section 256 obliged them to treat the agreed facts as proven facts. There could, of course, remain questions as to the inferences to be drawn by the jury from the agreed facts, but the facts themselves were not open to question. In our opinion, in charging a jury in a case where there is a minute of admissions or a minute of agreed facts, the trial judge or sheriff should give the jury specific directions to this effect.

[10] In the circumstances we consider that there was a material misdirection in relation to the joint minute. Having regard to the significance of the joint minute to the all-important issue of SH's credibility, we consider that that misdirection led to a miscarriage of justice. We shall therefore allow the appeal on this ground.

(iii) The alleged complexity of certain directions
[11] On this issue, we consider that there is no substance in the appeal. The sheriff's directions, although elaborate, covered all of the evidential issues that arose. They appear to us to have been expressed clearly and comprehensibly. We therefore reject this ground of appeal.

Disposal
[12] We allow the appeal on the second issue and quash the conviction. The question then arises whether we should grant authority to the Crown under section 118(1)(c) of the 1995 Act to bring a new prosecution. Although more than 18 months have elapsed since the conviction, counsel for the appellant has not put forward any reason relating to the complainers, or to the appellant or to the present state of the evidence, that would justify us in refusing the Crown's motion. Since the quashing of the conviction results from a misdirection, we shall grant authority as craved.