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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Grainger v. Her Majesty's Advocate [2005] ScotHC HCJAC_11 (02 February 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_11.html
Cite as: [2005] HCJAC 11, 2005 SCCR 175, 2005 SLT 364, 2005 GWD 7-92, [2005] ScotHC HCJAC_11, 2006 JC 141
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Darren Grainger v. Her Majesty's Advocate [2005] ScotHC HCJAC_11 (02 February 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice Clerk Lord Osborne Lord Mackay of Drumadoon
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[2005HCJAC11] Appeal No: XC355/03 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL by DARREN MICHAEL JAMES GRAINGER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead, N MacKenzie; McClure Collins
Respondent:
Di Rollo QC, AD; Crown Agent2 February 2005
Introduction
[1] The appellant was indicted for trial in November 2001 at Glasgow High Court on charges which, so far as relevant to this appeal, were in the following terms:"(1) On 8 March 2001 you did enter uninvited the Flat at 3/1, 26 Glasgow Road, Paisley occupied by Callum Henderson and there did assault said Callum Henderson, repeatedly punch him on the head and kick him on the body all to his injury, place him in a state of fear and alarm for his safety and rob him of £10 of money ...
(2) On 30 June 2001 or 1 July 2001 you did break into the house occupied by [complainer], aged 70 years, at [locus] and there assault said [complainer], seize hold of her, push her on the body, cause her to fall to the ground, forcibly remove part of her clothing, insert an object, to the Prosecutor unknown, into her private parts, repeatedly punch and kick her on the head and body, repeatedly stamp on her head and body or otherwise injure her by means to the Prosecutor unknown, all to her severe injury and permanent impairment and to the danger of her life, and you did attempt to murder her..."
The evidence at the trial
[5] The complainer in charge (1) was making a telephone call when the appellant came to his door. The complainer interrupted the call to answer the door. The appellant pushed his way in and kicked and punched the complainer. The complainer was frightened by the experience and sustained slight bruising in the attack. [6] The complainer in charge (2) was aged 70. She lived alone. She was frail and walked with the aid of a zimmer. In the early hours of 1 July 2001 she was the victim of a vicious attack by an intruder. She was almost beaten to death. The injuries to her head and face were horrifying. She underwent major facial surgery. Her life was in danger. The complainer was so affected by what happened that she had no memory of events and was unable to give evidence. [7] There was ample evidence to establish the averments that the complainer had been punched, kicked and stamped upon, and to identify the appellant as the assailant; but significant issues of fact arose in relation to the allegations that the appellant had forcibly removed the complainer's clothing and had inserted an object into her private parts. These were referred to as the "sexual element" in the charge. The defence raised questions as to whether the complainer's clothing had been removed and whether an injury found in her private parts could have been caused by a kick in the course of a non-sexual attack. We need not rehearse these aspects of the evidence because counsel for the appellant accepts that there was a corroborated case against the appellant on both of these allegations.The grounds of appeal
[8] The appeal is presented on the following grounds: (1) that the decision of Lady Cosgrove to refuse separation of charges constituted a miscarriage of justice in respect of both charges; (2) that the trial judge misdirected the jury in relation to charge (2) by failing to direct them specifically on the averments in the charge that related to the assault to the complainer's private parts; and in particular by failing to direct them that in order to convict the appellant of that part of the charge they had to be satisfied that the appellant carried out the acts libelled with the necessary mens rea; and (3) that in any event the directions of the trial judge on that part of charge (2) were insufficient. [9] It is agreed that the trial judge did not direct the jury specifically on the question of mens rea in relation to the sexual element in charge (2) and that he did not give them specific directions on the distinguishing features of indecent assault. It is accepted by counsel for the appellant that the trial judge's general directions on mens rea and corroboration were accurate.Submissions for the parties
Separation of charges
[10] Counsel for the appellant submitted that there was no evidential connection between the charges. There was a material risk of prejudice to the appellant. The jury might consider that if he used violence in the circumstances narrated in charge (1), it was more likely than not that he was the perpetrator of the more serious violence libelled in charge (2). On that basis counsel for the appellant moved us to quash the convictions on both charges. The advocate depute adopted the reasoning of Lady Cosgrove.Indecent assault
[11] Counsel for the appellant submitted that the words in charge (2) relating to the assault to the complainer's private parts constituted a charge of indecent assault. Indecent assault was not merely an aggravated form of assault. It was a distinct crime and was identified as such in numerous statutory provisions (eg 1997 Act, Sched 1, para 2; Criminal Procedure (Scotland) Act 1995, s 210A(10)(v)). It was a species of sexual offence. The mental element was therefore different from that in a common assault. The trial judge should therefore have given a specific direction on mens rea to the effect that it was essential that the Crown should prove that the offence was committed for the purpose of sexual gratification. Furthermore, since it was a separate crime, the crucial facts in that element of the libel had to be proved by corroborated evidence (Smith v Lees, 1997 JC 73). Although charge (2) was a single charge, it narrated a number of separate offences (Cordiner v HM Adv, 1991 SCCR 652). [12] In any event, even if the averments alleging the sexual assault were to be treated as a matter of aggravation only, and did not require to be proved by corroborated evidence, the trial judge should nevertheless have specifically directed the jury to consider whether the appellant had committed a sexual assault or an unaggravated assault in the course of the alleged attempted murder. In the result, the jury had convicted the appellant as libelled and the trial judge, and not the jury, had made the judgment that the appellant had committed the sexual offence of indecent assault and had so certified in terms of section 5(2) of the 1997 Act. The conviction should be quashed.[13] The advocate depute submitted that the Crown was not obliged to specify a nomen iuris in the libel, so long as the libel disclosed a crime known to the law. In practice, the Crown did not libel indecent assault eo nomine. Since it seemed to be accepted by the appellant that matters of aggravation, incidental averments and matters of narrative need not be proved by corroborated evidence, the standard directions given by the trial judge on corroboration and on the jury's entitlement to make deletions of parts of the libel were sufficient. Those parts of the libel that were apt to suggest indecency did not require to be proved by corroborated evidence. Only if the jury had deleted all other parts of the charge, leaving the penetrative sexual assault as the only surviving part of it, would it have been necessary for there to be corroborated proof (Campbell v Vannet, 1998 SCCR 207). The judge's directions on the definition of assault were adequate to cover all the elements of the libel. The judgment whether the appellant had committed an indecent assault was one for the trial judge.
Decision
[14] In our opinion, the appeal fails on each of the submissions made to us.Separation of charges
[15] The decision whether to order separation of charges is one for the discretion of the court (Renton and Brown, Criminal Procedure, 6th ed, paras 9-52; 9-53). The test is one of fairness to the accused. The normal rule is that the Crown is entitled to bring all charges against the accused in one indictment. That rule should be departed from only where there is a demonstrable risk that that course will be prejudicial to the accused. It is clear from Lady Cosgrove's Report that she applied the correct test. Counsel for the appellant has failed to satisfy us that she exercised her discretion unreasonably. We therefore have no reason to differ from her decision. On the contrary, we consider that it was plainly correct. [16] But now that the trial has taken place, the issue is different. The issue now is whether the appellant in fact sustained prejudice of the kind that counsel had apprehended at the preliminary hearing. Counsel for the appellant has given us no reason to think that the appellant suffered any such prejudice. We therefore conclude that the jury reached their decision on the evidence, and only on the evidence, in accordance with the trial judge's directions and in accordance with their oath.
Indecent assault
[17] We reject both of the submissions for the appellant. Indecent assault is not, in our view, an independent sexual offence. It need not be, and generally is not, libelled as a nomen iuris. It is essentially an assault aggravated by indecency in the manner of its commission. That aggravation does not take the assault into a separate category of crime (cf Gordon, Criminal Law, 3rd ed, paras 29.04; 29.24). Whether or not an assault is aggravated in this way is to be judged, in our view, by an objective standard (Gordon, ibid; Macdonald, Criminal Law, 5th ed, pp 117-119). An assault may have the quality of indecency irrespective of the accused's intention or motive. The question for the jury on this part of the indictment was whether the Crown had proved the factual averments that the appellant removed the complainer's clothing and inserted an object into her private parts. The normal directions on mens rea in relation to assault were therefore sufficient in this case. [18] Counsel for the appellant referred us to numerous cases on the question whether averments of aggravation or of narrative require to be proved by corroborated evidence, but in this case the point is academic. Although the trial judge did not direct the jury specifically on that question in relation to the allegations of sexual assault, counsel for the appellant agrees that there was a corroborated case against the appellant on that part of the indictment. When the jury convict on all or part of a libel that involves a sexual element, such as charge (2) in this case, the decision-maker for the purposes of certification of a sexual offence is the trial judge. In a case like this, the trial judge must take the conviction in the terms in which the jury have returned it and decide whether, in whole or in part, it discloses an offence that has the quality of indecency that makes it a sexual offence as defined by the sex offenders legislation. [19] Since the jury convicted on charge (2) without deletion, the trial judge had to consider, on an objective judgment of the facts, whether that conviction implied the commission of an "indecent assault" (1997 Act, s 1; Sched 1, para 2). There may be cases where the conclusion to be drawn on that question is not clear-cut. In such a case, the trial judge should, in our view, invite submissions from counsel on the point. But in our opinion this was not such a case. The trial judge's conclusion under section 5(2) of the 1997 Act was clearly correct.