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McBrearty v. Her Majesty's Advocate [2004] ScotHC 24 (13 April 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord MacLean

Lord McCluskey

Appeal No: XC139/02

OPINION OF THE COURT

delivered by

THE LORD JUSTICE CLERK

APPEAL

SAMUEL McBREARTY

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

For Appellant: Dean of Faculty (CM Campbell QC), ME Scott QC; McCourts, Solicitors

For the Crown: Murphy QC, AD, Miss Burke; Crown Agent

13 April 2004

Introduction
[1] The appellant was tried at Glasgow High Court in September 2001 on 21 charges. There were two charges of rape, nine charges of lewd, indecent and libidinous practices, nine charges of assault and one charge of shameless indecency. The offences libelled were alleged to have been committed against girls at Quarrier's Homes, Bridge of Weir, over the years 1961 to 1968. There were five complainers. Before the trial, one of them, JF, became too ill to give evidence. The advocate depute dropped the charges relating to her. At the close of the Crown case he withdrew four charges of assault in relation to KM, two charges of assault and one charge of shameless indecency in relation to LJ, one charge of assault in relation to AF, and one charge of assault and two charges of lewd, indecent and libidinous conduct in relation to JS.

[2] On 7 September 2001 the appellant was found guilty of the remaining charges, which related to KM, LJ and AF. We have set out charge 3 in the restricted form in which the jury convicted him.

"(1) On various occasions between 1 October 1961 and 31 December 1964, both dates inclusive, at Quarriers Homes, Bridge of Weir, you did assault [KM], born 11 March 1950, ... enter her bed, lie on top of her, place your hand over her mouth, force her legs apart and rape her;

On various occasions between 1 October 1961 and 10 March 1962, both dates inclusive, at Quarriers Homes, Bridge of Weir, you did use lewd, indecent and libidinous practices and behaviour towards [KM], born 11 March 1950, ... and did enter her bedroom, partially remove or lift up her night dress and touch her on the legs and buttocks;

(3) On various occasions between 11 March 1962 and 31 December 1964, both dates inclusive, at Quarries Homes, Bridge of Weir, you did use lewd, indecent and libidinous practices and behaviour towards [KM], born 11 March 1950, ... then a girl of or above the age of 12 and under the age of 16 years and did enter her bedroom, partially remove or lift up her night dress, touch her on the legs and buttocks, enter a bathroom while she was partially clothed, force her to kneel on the floor, pull her by the hair and insert your private member into her mouth:

CONTRARY to the Criminal Law Amendment Act 1922,

Section 4(1);

On various occasions between 1 October 1961 and 1 April 1968, both dates inclusive, at Quarriers Homes, Bridge of Weir, you did assault [LJ], born 14 March 1951, ... remove her from a bed and force her to accompany you to a bathroom, lie on top of her and rape her;
On various occasions between 1 October 1961 and 13 January 1963, both dates inclusive, at Quarriers Homes, Bridge of Weir, you did use lewd, indecent and libidinous practices and behaviour towards [LJ], born 14 March 1951, ... and remove her from a bed and force her to accompany you to a bathroom, remove her clothing and your clothing, induce her to kiss your private member, insert your private member into her mouth, emit semen over her body, induce her to masturbate you to the emission of semen, handle her breasts and lick her private parts;

(10) On various occasions between 14 January 1963 and 13 January 1967, both dates inclusive, at Quarriers Homes, Bridge of Weir, you did use lewd, indecent and libidinous practices and behaviour towards [LJ], born 14 January 1951, ... being a girl of or above the age of 12 and under the age of 16 years and remove her from a bed and force her to accompany you to a bathroom, remove her clothing and your clothing, induce her to kiss your private member, insert your private member into her mouth, emit semen over her body, induce her to masturbate you to the emission of semen, handle her breasts and lick her private parts:

CONTRARY to the Criminal Law Amendment Act 1922,

Section 4(1);

(17) On an occasion between 1 October 1961 and 8 February 1965, both dates inclusive, at Quarriers Homes, Bridge of Weir, you did use lewd, indecent and libidinous practices and behaviour towards [AF], born 9 February 1953, ... and did enter a bathroom while she was naked and handle her private parts;

(18) On various occasions between 9 February 1965 and 28 June 1968, both dates inclusive, at Quarriers Homes, Bridge of Weir, you did use lewd, indecent and libidinous practices and behaviour towards [AF], born 9 February 1953, ... being a girl of or above the age of 12 years and under the age of 16 years and did enter her bed and handle her breasts and private parts underneath her clothing, and induce her to handle your private member:

CONTRARY to the Criminal Law Amendment Act 1922,

Section 4(1)."

The jury convicted the appellant by a majority on charges (1), (2), (3) and (8), and unanimously on charges (9), (10), (17) and (18).

[3] On 28 September 2001 the appellant was sentenced to 12 years imprisonment in cumulo on the common law charges and to 2 years imprisonment in cumulo on the statutory charges, the sentences to run concurrently and to be backdated to 7 September 2001. The appellant was 70 years old at the date of the sentence.

The background
[4] The appellant was employed at Quarrier's Homes from about 1 October 1961 to about 28 June 1968. Quarrier's Homes cared for children who were orphans or whose families were unwilling or unable to look after them. The children were accommodated in Quarrier's Village, a largely self-contained community. The residential accommodation comprised about thirty houses. Each house accommodated about fourteen children and was run as a self-sufficient unit. The appellant and his wife were the house parents in a house known as Cottage 5.

The case for the Crown

The complainers
[5] AF lived in Cottage 5 from about the age of 5. From 1961 onwards she was in the care of the appellant and his wife. She spoke to the essentials of charges (17) and (18). AF was unusually nervous. During her evidence she became distressed and was on the verge of vomiting. At the end of her evidence, she had to be helped from the court, as she was barely able to walk.

[6] LJ lived in Quarrier's Homes from the age of 2 months. She was in Cottage 5 during the period when it was run by the appellant and his wife. She spoke to the essentials of charges (8), (9) and (10). She said that she had seen the appellant getting into AF's bed at night, and the covers going up and down, and that she had also seen him getting into KM's bed at night. She said that he would go to her bed one night, then to KM's a few nights later, then AF's a few nights after that, and so on. She said, "it was like he was doing the room". LJ too became distressed. It emerged during her evidence that she had suffered from depression and had received psychiatric treatment.

[7] The trial judge says that both AF and LJ were good witnesses and that AF was particularly impressive.

[8] KM spoke to the essentials of charges (1), (2) and (3). She said that the appellant regularly went into the girls' bedroom at night and climbed into her bed. He would hold his hand over her mouth and rape her. This began soon after the appellant's arrival in Cottage 5 and continued regularly until she left the Homes at the end of 1964. She had also seen him going into LJ's bed, and then hearing LJ crying. KM too became distressed while giving evidence.

[9] KM was a difficult witness. According to the trial judge, she appeared to be a person of limited education and below average intelligence, although a psychiatric report suggested that that might be attributable to anxiety and distress. She answered questions in a child-like manner and at times spoke in the present tense as if she were still living in the home. She appeared to be nervous of anyone in a position of apparent authority, such as counsel or the trial judge. Her demeanour when she first entered the court suggested great anxiety. Other aspects of her evidence, such as her incorrect statements as to her own age, and her amnesia about her father and half-siblings, indicated a strange personality. She burst into tears at the 'discovery' that she had a sister. These various aspects of her evidence appeared to the trial judge to be genuine rather than feigned.

[10] The trial judge says that it was obvious that her evidence was going to cause the jury difficulty, as counsel recognised in their speeches.

[11] It is not in dispute that KM told lies before and during the trial. In a statement to the police she falsely alleged that the appellant was responsible for a pregnancy that ended in a miscarriage after she left Quarrier's Homes and was a resident at St Euphrasia's, Bishopton. That could not have been true since by then she had had no contact with the appellant for over nine months. She lied in saying that she had never had a mobile phone. She lied about her age. She lied about the parentage of her daughter. She lied about having been recently visited by CID officers who enquired if she had been abused at Quarrier's Homes. She admitted that she had written friendly letters to staff at the Homes after she left. The transcript of the cross-examination shows that her evidence was evasive, untruthful and unsatisfactory. At one point, she was warned by the trial judge to tell the truth.

[12] It was not in dispute that KM had eight convictions including convictions for theft, attempted fraud, fraud and uttering. There was evidence that each of these complainers had received an anonymous letter, written in a threatening tone, to the effect that she should not disclose what had been secret. In cross-examination, it was put to KM that she had written the letters. She denied this.

[13] KM raised a civil action against the appellant for damages for the sexual offences referred to in charges (1), (2) and (3) and thereafter reported these offences to the police. That report led to the enquiries that ended in this prosecution.

Corroboration
[14] On the two rape charges, KM and LJ were capable of corroborating one another on the Moorov principle. If the jury did not accept KM's evidence, they could not convict on either of the rape charges.

[15] On the charges of lewd, indecent and libidinous conduct, KM, LJ and AF were capable of corroborating one another, on the Moorov principle. If the jury did not accept KM's evidence, they could not convict on those charges in which she was the complainer and her evidence could not provide corroboration for that of either LJ or AF. But in that event, if the jury accepted the evidence of LJ and AF, there was a corroborated case against the appellant on each of the remaining charges in which they were the complainers.

[16] In deciding whether or not to believe KM, the jury were entitled to have regard to the similar evidence of LJ on charge (8) and to the similar evidence of LJ and AF on charges (9) and (10) and (17) and (18) respectively.

[17] This, however, was not a case that depended solely on the Moorov principle. There was direct eye-witness evidence from LJ that the appellant had gone into the beds of KM and AF at night. Her evidence indicated that he had done so on numerous occasions. This evidence, if believed, supported KM's evidence. Similarly, KM gave direct eye-witness evidence of having seen the appellant going into LJ's bed at night. That evidence, if believed, supported LJ's evidence.

The case for the defence
[18] The appellant gave evidence that he was wholly innocent of the charges. He maintained that he could not have abused the complainers without his wife's being aware of it. His wife's evidence was to similar effect.

[19] The defence also called a handwriting expert, John McCrae, who thought it highly probable that the anonymous letters had been written by KM, although he accepted that another expert might think that there was insufficient material on which to reach a conclusion.

[20] The defence had done considerable work before the trial in recovering documentary evidence of KM's unreliability. The defence lodged as productions the summons in her civil action and her application for legal aid; a schedule of her previous convictions; and copies of three inconsistent statements that she had given to the police. The defence also lodged two correspondence files and the clinical notes relating to KM held by Leven Health Centre for the period 1982 to 1996. These documents showed inter alia that KM suffered from anxiety/depression and personality disorder. The defence was also provided by the Crown with two reports obtained by the Crown in support of a "screens" application under section 271 of the Criminal Procedure (Scotland) Act 1995. One was by a consultant psychiatrist. The other was by the leader of a mental health team. These reports showed that KM had serious psychiatric problems for which she had received support from the psychiatric services. We need not go into the details.

[21] Counsel for the appellant did not put any psychiatric evidence about KM before the jury; but the trial judge says in his report that it would have been manifest to the jury that she was a person with serious psychological problems, at least while in court during the trial.

[22] In her police statement dated 21 July 1998 KM referred to a specific occasion on which the appellant raped her. She said that earlier on the same day she had been raped by a gardener at Quarrier's Homes named David. She said that after she returned to Cottage 5 and went for a bath, the appellant had raped her. She said that David had later been convicted of the rape and had been sentenced to two years imprisonment. The Crown accepted that there was no trace of any such conviction or sentence. A member of the administrative staff of Quarrier's Homes notified the defence solicitors that there was no record of there having been a gardener named David at the relevant time. In cross-examination KM denied having made that statement.

The speech of the advocate depute
[23] In addressing the jury, the advocate depute dealt with the difficulties in KM's evidence and with the points put to her by the defence, including the authorship of the anonymous letters. He said:

" ... Many points will be made in relation to her, but your decision is, what effect do those points have on whether you accept her evidence on the real issue? [LJ] supported her to the extent of saying that she saw the accused getting into her bed. If she did write the letters, another point, and it was one which I put to Mr McBrearty, either she is an exceptionally malicious, or she is somebody who is an angry person, somebody who is seeking retribution against a person who abused her in her formative years but is just really not going about it in the best way or the most dignified way. You might think that she's someone who just in many respects doesn't really conform to the high standards of what society expects of its citizens. However, you might also think that it is reasonable that someone whose body, and dare I say mind, has been violated as badly as she said her body and mind were violated, may very well have difficulty in maturing into somebody who is capable of conforming to the other norms and expectations of society.'

It is agreed that this last remark was not supported by evidence.

The trial judge's charge
[24] The trial judge directed the jury to reach their decision only upon the evidence. He specifically warned them against drawing conclusions from speculation. These were his directions.

"You on the other hand are responsible for all decisions as to the facts of this case as presented to you in the evidence. You must reach your verdict only upon the basis of the evidence and in the light of the directions about the law which I will be giving you. In their speeches, the advocate depute and counsel for the defence have drawn attention to matters which they suggest are important in the evidence and I may also mention some of the evidence in the course of my remarks but you should understand that it is your recollection of the evidence and your assessment of it that counts, not mine or anyone else's. If I refer to evidence I intend to do no more than remind you that you have heard evidence on a particular point (at pp. 3-4) ...

... So you decide questions of fact on the basis of the evidence led in this courtroom but not everything you have heard in this courtroom in the course of the trial has been evidence. Evidence generally consists of what witnesses have said on oath in the witness box. So the speeches made by counsel this morning for example are not evidence in the case. The questions asked during the trial by counsel or by myself are not evidence either. Even if the question takes the form of counsel making a factual assertion, what counsel says is not evidence. So you can't treat as evidence any assertions that counsel's questions may seem to contain unless of course a witness in his or her evidence has agreed with what was being suggested. So remember that the evidence which you been (sic) asked to assess takes the form of the answers which the various witnesses gave to questions which were put to them (at pp. 5-6) ...

... You must not speculate or guess about matters on which there is no evidence but on the other hand you are of course entitled to draw inferences from the evidence that you have heard. In other words, to add the evidence up and decide what conclusions should reasonably be drawn from it" (at pp. 7-8).

The trial judge also reminded the jury in detail of the defence criticisms of KM's evidence (at pp. 48-49).

Post trial developments
[25] The principal point in this appeal is that those representing the appellant failed properly to defend him because they failed to follow up an important line of investigation, namely the obtaining of an expert opinion on the mental condition of KM and failed to put to her, or to lead evidence, that she had made a false allegation of rape against the gardener.

[26] KM's veracity was one of the principal issues considered in the preparation of the defence. There appeared to be grounds for an attack on her credibility and reliability on the basis that her mental state predisposed her to lie.

[27] After the appeal was lodged, Dr Janet Boakes, a psychiatrist with a special interest in the subject of false memory syndrome and related questions, studied the papers and interviewed KM. She concluded inter alia that KM had a pathological predisposition to lie for her own advantage; that she suffered from an extremely severe personality disorder, with marked histrionic features; that she was unable to distinguish between reality and fantasy, and that her account of her memories was consistent with false memory syndrome. Dr Boakes also had doubts about the authenticity of the memories spoken to by LJ and AF. She also mentioned in her report that there was no scientific basis for the popular belief that any form of sexual abuse causes lifelong damage to the personality and gives rise to a wide range of psychiatric symptoms.

[28] The Crown thereafter instructed Dr Brian Tulley, a clinical and forensic psychologist. He reviewed Dr Boakes' report. He broadly supported her conclusions on KM; but, unlike Dr Boakes, he was of the opinion that there was an overwhelmingly more probable likelihood that LJ and AF were drawing on authentic memory, even if some of the memories might have been distorted or contaminated somewhere along the line.

[29] We assume that if Dr Boakes had been instructed by the defence before the trial, she would have interviewed KM and would have given evidence along the lines of her report.

The issues in this appeal
[30] The appeal has resolved itself into two main issues, namely (1) whether the trial judge erred in failing adequately to correct the last remark made by the advocate depute in the passage that we have quoted; and (2) whether the legal representation of the appellant was defective in respect of the failure of counsel (a) to pursue a line of evidence to the effect that KM was a pathological liar, and (b) to cross-examine KM, and to lead evidence, about her false allegation of having been raped by the gardener.

Decision

The advocate depute's speech
[31] The trial judge is of the view that in the words complained of the advocate depute was not inviting the jury to speculate that psychological or psychiatric disorders might explain the giving of false evidence. He understood that comment to mean that if the jury considered that KM had sent the anonymous letters, and if they accepted that she had a number of previous convictions, they should not automatically, and for that reason alone, disbelieve her evidence that she had been the victim of sexual abuse in childhood. If she was telling the truth about that matter, it would not be surprising if she had not grown up into a model citizen.

[32] That may be what the advocate depute meant; but in our view his comment could have been construed as an invitation to speculate on the cause of KM's false evidence. The Crown accepts that this comment should not have been made. In our view, the question is whether the trial judge's direction dealt with the problem adequately.

[33] In our opinion, the strong directions that we have quoted were more than adequate in the circumstances. They sufficiently emphasised to the jury that they should decide the case on the evidence and not on speculation. We reject this ground of appeal.

The Anderson grounds

The scope of an Anderson appeal
[34] Anderson v HM Adv (1996 JC 29) draws the distinction between a failure properly to present a defence and a judgment as to the conduct of the defence at the trial made in the exercise of professional discretion. In general, a complete failure to put forward an important line of defence, as for example in Garrow v HM Adv (2000 SCCR 772), Hemphill v HM Adv (2001 SCCR 361), AJE v HM Adv (2002 JC 215) and Winter v HM Adv (2002 SCCR 720), will found a relevant ground of appeal, whereas a judgment made as to the manner of presentation of such a line of defence will not (Anderson, supra).

[35] The learned Dean of Faculty has pointed out that certain obiter dicta in Jeffrey v HM Adv (2002 SCCR 822) suggested that in AJE v HM Adv (supra) this court had extended the scope of this ground of appeal beyond that countenanced in Anderson. In our opinion, AJE v HM Adv, properly understood, is entirely consistent with Anderson. The key point in AJE v HM Adv was that counsel had failed to follow up lines of defence that were plainly crucial to the case, despite his having been urged to do so by the accused himself, and in the course of the trial had failed to pursue lines of cross-examination that were obviously necessary if the defence was to be properly put before the jury (ibid, Lord Justice Clerk Gill at paras [10] to [17]; Lord Hamilton at paras [10] to [15]; Lord McCluskey at paras [19] to [23], [29]).

[36] In some cases, it may be difficult to draw the dividing line between a judgment made by counsel in the presentation of the defence and a failure properly to present it at all. But even in the area of professional judgment counsel may make a decision that is so absurd as to fly in the face of reason. In such a case, in our view, the court is entitled to hold that the defence was not properly conducted (McIntyre v HM Adv, 1998 SCCR 379, Lord Coulsfield at p. 388). To hold otherwise, in pursuit of a rigid legalistic distinction, would be to lose sight of the underlying question in every Anderson appeal, namely whether the accused was given a fair trial (cf AJE v HM Adv, supra, Lord Justice Clerk Gill at paras [8] -[10]). These considerations are vital in this case.

The appellant's complaint
[37] We have first to consider what the line of defence was to which the appellant's complaint relates. There is no doubt that it was to attack the credibility and reliability of KM. This, therefore, is not a case where a defence was not presented at all. At best for the appellant, it is a case where the defence was presented; but presented so inadequately that the appellant did not receive a fair trial.

[38] Before the trial, it appeared that the credibility and reliability of KM could be attacked in two ways, namely by demonstrating that she had repeatedly told lies, some of them on important matters, and had been convicted of dishonesty, and by demonstrating that she was a pathological liar. That brings us to the central question whether the defence was defective in either of these respects.

[39] In accordance with its practice in such appeals, the court invited counsel and solicitors who defended the appellant to comment on this aspect of the appeal. Only the appellant's former solicitors, Beltrami and Co., Glasgow, submitted comments. Senior counsel, Mr Edgar Prais, QC, replied that he had "absolutely no comment to make." Since he was adamant that it was inappropriate to respond, his junior, Miss Dorothy Bain, felt bound by his decision.

[40] The learned Dean of Faculty submitted that if Dr Boakes' evidence had been before the jury, it would have been vital to the credibility and reliability of KM on the questions whether she had been abused at all and, if she had, whether the appellant was the abuser. That evidence therefore related to the fundamental issues at the trial. The lack of it was inexplicable. It affected the fairness of the trial and caused a miscarriage of justice.

[41] As the hearing of this appeal proceeded, we became increasingly concerned that we were being asked to make a judgment on the professional conduct of counsel without any explanations from those best placed to give them, namely counsel themselves, and were therefore having to decide the issue in a void. It seemed essential that we should know exactly why counsel had failed before the trial to pursue the question of KM's propensity to lie, and had failed to cross-examine, and lead evidence about, her unfounded allegation of rape against the gardener. These appeared to be obvious and relevant lines of attack on KM's credibility.

[42] Since an appeal of this kind should not be decided upon conjecture, we invited Mr Prais and Miss Bain to answer the following questions:

Why was the decision taken in the course of preparation for the trial

not to pursue the idea of having an expert assessment of the

medical records of KM; and

not to pursue the question of having the credibility and

reliability of the other two complainers assessed from a psychological point of view.

Why was KM not cross-examined, and why was no evidence led by the defence, regarding the false allegation of rape made by her against "Donald" (sic), the gardener at Quarrier's Homes?

[43] Mr Prais replied almost immediately "I cannot now possibly recollect why these decisions were taken." Miss Bain submitted a detailed memorandum on the following morning. It has been an important factor in our consideration of the merits of this appeal. We are obliged to her for her assistance.

Defence preparations
[44] In our assessment of the criticisms made on behalf of the appellant, our first consideration is that the appellant was defended by a team of capable and experienced counsel and agents who, it is clear, had a thorough grasp of the issues and gave the case a degree of preparation that is unusual in our experience.

[45] The appellant's former solicitors commented on the complexity of the case. In the course of preparation they had numerous lengthy consultations, with the appellant individually and with counsel, and extensive correspondence and numerous lengthy telephone calls with the appellant. All aspects of the preparation of the case were discussed at length with the appellant. Miss Bain says that consultations with senior and junior counsel were held on Thursday 18 November 2000, Saturday 24 February 2001, Sunday 3 June 2001, Tuesday 10 July 2001 and Saturday 11 August 2001. The Saturday and Sunday consultations lasted for the greater part of the day. There was a meeting on or about 17 July 2001 between the appellant, his son and the instructing solicitor and a consultation on Saturday 21 July 2001 between senior counsel and the instructing solicitor There were also informal meetings and discussions in the period before June 2001 between counsel and the appellant's son.

The attack based on KM's predisposition to lie
[46] It is plain that counsel and solicitors considered and discussed the possibility of having expert assessments of the complainers' mental states. Miss Bain tells us that in light of the information within the medical records of KM, the defence considered whether to instruct psychological and psychiatric experts to assess whether (a) KM could be diagnosed as suffering from a mental condition that resulted in her being a complete fantasist or (b) she was suffering from false memory syndrome. She says that it was clear that KM could be shown to be lying about profoundly significant matters and that her motive was financial.

[47] The trial judge has doubted whether an attack based on KM's mental condition could logically have been advanced along with an attack based on her lying and dishonesty. He suggests that it would have been difficult to pursue both lines simultaneously. We disagree. In our opinion, the contention that KM's mental condition was such that she was a pathological liar was compatible with the contention that she had told certain specific lies and had been dishonest.

[48] The trial judge has also suggested that there would have been a doubt as to the admissibility of Dr Boakes' evidence in view of Grimmond v HM Adv (2001 SCCR 708), which had been decided by a single judge shortly before the trial. In our view, Grimmond was distinguishable from the present case. Grimmond correctly expresses the principle that the assessment of the truthfulness of a witness's evidence is a matter for the jury and not for expert evidence. In that case, the Crown sought to support the credibility and reliability of the complainers by leading evidence from a clinical psychologist to the effect that the complainers were likely to be telling the truth. That was a clear case of oath-helping (cf Robinson, (1994) 98 Cr App R 370, Lord Taylor CJ at pp. 374-375).