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Cite as: [2005] ScotHC HCJAC_130, [2005] HCJAC 130

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McPherson v. Her Majesty's Advocate [2005] ScotHC HCJAC_130 (10 November 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Kingarth

Lord Clarke

[2005HCJAC130]

Appeal No: XC484/03

OPINION OF THE COURT

delivered by the THE LORD JUSTICE CLERK

NOTE OF APPEAL

RONALD McPHERSON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Berry & Co, Glasgow

Respondent: Stewart QC, AD; Crown Agent

10 November 2005

The conviction
[1] The appellant was tried at Hamilton Sheriff Court before Sheriff Neilson and a jury on the following charge, as amended:

"(1) on 7 February 2000 at [locus] you did whilst acting with another assault [the complainer] and did confine her naked in said house against her will, push her to the floor, strike her repeatedly on the bare back and buttocks with a belt, write obscene words on her bare back and buttocks with a pen, repeatedly force her head into a bucket containing vomit, masturbate over her body and emit semen onto her head and body, seize hold of her all to her injury."

On 16 February 2001 he was convicted by a unanimous verdict. In giving the verdict the foreman added that, by a majority, the jury found that the complainer consented to being belted. This rider arose from a direction given by the sheriff to which we shall refer later.

The evidence
[2] The complainer was a married women with whom the appellant had had a sexual relationship. On the evening of the date libelled, she went to the appellant's flat and had sexual intercourse with him twice. Later, the complainer dosed off naked on the couch. When she awoke, she saw the appellant enter the room with his friend Peter Skellon and, according to her evidence, the appellant then committed the acts libelled. In particular, she said that he struck her at least six times on her buttocks and upper thighs with a belt. In cross-examination the complainer denied having consented to being slapped or struck, or having suggested that the appellant should write on her body.

[3] The complainer went home at about 3am and telephoned for the police. PC John Hutchison attended at her house. He found her to be slightly distressed. She had obviously been angry. Her clothes were dishevelled. She had been drinking. She cried in the car on her way to the police station.

[4] PC Hutchison went to the appellant's flat at about 5.30am. He found, among other things, a brassiere, a bucket with some vomit in it and a belt. He interviewed the appellant at East Kilbride police station on 9 February 2001. The appellant said inter alia that the complainer asked him to dominate her and tie her up. She started to slap him repeatedly. He belted her on the backside a few times but stopped when she complained of the pain.

[5] There was medical evidence that there were the imprints of a belt, abrasions to the skin, redness and swelling on the complainer's buttocks and the presence of writing, including one recognisably obscene word, on her back.

[6] The appellant's evidence was that the complainer suggested tying him up. She scribbled on his chest and thigh with a felt-tip pen and slapped him. She then suggested that he spanked her. She removed the belt from his trousers, lay flat on the floor with her buttocks slightly raised and said "slap me." He struck her with the belt four or five times but stopped when she asked him. He put her sickness down to the fact that she had been drinking. He wrote on her back because she told him she would not mind. He denied having committed any of the other acts libelled.

[7] From this brief summary of the main points of the evidence it will be apparent that, while it was not disputed that the appellant struck the complainer on the buttocks with a belt, there was a stark conflict as to the circumstances in which he did so.

The charge
[8] The sheriff's charge was prolix and at times repetitious, but we need consider only one aspect of it, namely his treatment of the question of the complainer's credibility. He directed the jury that it was up to the Crown in the particular circumstances of the case to exclude the complainer's consent; that, depending on what they made of the evidence, a lack of consent might be regarded as an essential fact that required to be proved by corroborated evidence; that it was up to the Crown to exclude the complainer's consent, and that it was not for the accused to prove in any way that she consented (pp 25-26). He said that the jury would be obliged to consider whether or not they were satisfied that the complainer did not consent to what happened and that, if they had any reasonable doubt about that, they would be unable to find that her lack of consent had been established by the Crown (p 27).

[9] The sheriff went on to speak about the complainer's "state of mind." We infer that he was referring to the question of consent. He said that her state of mind was a crucial fact that required to be established by the Crown (p 29); and that if the jury had any reasonable doubt as to the complainer's truthfulness or reliability on the essentials of the case, they must acquit (p 32). Towards the end of the charge he said that if they had some reasonable doubt as to the complainer's truthfulness and reliability, then the Crown case was dead in the water and they must acquit (p 67).

[10] We need not decide whether the directions on consent were accurate. The essential point is that up to this stage in the charge the sheriff presented the case as being, in essence, a straight contest in credibility between the complainer and the appellant and directed the jury that consent was the key issue on which that contest fell to be resolved. But he then gave the following direction.

"In the particular circumstances of this case, ladies and gentlemen, I am going to tell you one other thing that I would ask you to do. This only applies, ladies and gentlemen, if you are returning a guilty verdict. In the event of you returning a guilty verdict, you will be asked by the Clerk if you have anything to add to that verdict. The answer to that may be 'No,' in which case whoever speaks for you will simply say 'No' in answer to that question. However, it strikes me as possible that you could conclude in this case that [the complainer] did consent to being belted, but you could nevertheless conclude that since, as I have already told you, consent is not a defence where it is proved that the accused acted with evil intention to cause injury, that you could conclude that [the complainer] consented to being belted but the accused is nevertheless guilty of the charge. And it seems to me that, although sentence is a matter for you (sic), it is such an important matter of fact in this case, which would be material to the sentencing disposal, that if you were concluding that he was guilty but that she had consented to being belted, that I would want you to add, when asked if you have anything to add, I would want you to add that this was subject to your having found that [the complainer] consented.

Now, I am not suggesting that as a verdict. I am not suggesting any verdict, as I have said before. I am just explaining to you certain things that you are entitled to do, and I am asking you in the particular and unusual circumstances of this case to consider whether - and this only applies if you are finding Mr McPherson guilty - there is anything of that nature that you want to add to your verdict as, if you like, a rider to the verdict."

The grounds of appeal
[11] There are five grounds of appeal, of which we need consider only grounds 3 and 5. These are to the effect that, even if the sheriff's general directions were sound, it was unnecessary and confusing to give the particular direction that he gave about the addition of a rider to the verdict; and that the verdict itself, being perverse, was one that no jury properly directed could have returned.

Submissions
[12] Counsel for the appellant submitted that the case stood or fell by the complainer's credibility on the issue of consent. The verdict of guilty implied that the jury accepted the complainer as a credible witness on that issue; but the rider implied that they did not. The sheriff's directions, which led to this result, were illogical.

[13] The advocate depute accepted that the directions on onus in relation to consent were inaccurate; but he submitted that those directions were advantageous to the appellant. There was ample evidence to justify a conviction. There was no miscarriage of justice.

Decision
[14] In our opinion, the sheriff's suggestion that the jury could return a verdict of guilty qualified by a rider of the kind that he mentioned constituted a misdirection. His approach to the question of consent was that it was the crucial issue and that it turned on the credibility of the complainer. As he put it, if they had any reasonable doubt as to the complainer's' truthfulness and reliability, the Crown case was dead in the water. But having approached the matter in that way, he then in effect directed the jury that while they could convict only if satisfied beyond reasonable doubt as the complainer's credibility on that crucial issue, they could add a rider to the effect that they were not so satisfied.

[15] In our opinion, that was illogical. The verdict, when read with the rider, is perverse. There has been a miscarriage of justice. We shall therefore quash the conviction.