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Cite as: [2005] ScotHC HCJAC_88, [2005] HCJAC 88

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Ferguson v Her Majesty's Advocate [2005] ScotHC HCJAC_88 (20 July 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lady Cosgrove

Lord Nimmo Smith

Lord Wheatley

[2005HCJAC88]

Appeal No: XC538/04

OPINION OF THE COURT

delivered by LADY COSGROVE

APPEAL AGAINST CONVICTION and SENTENCE

ALISTAIR FERGUSON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Meehan; Garden Stirling Burnett, Tranent

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

20 July 2005

[1] The appellant was convicted after trial of two charges on an indictment. The charge with which this appeal is concerned is one that, on 24 or 25 June 2003, at a static caravan in Musselburgh, he did use lewd, indecent and libidinous practices and behaviour towards DC, a girl then over the age of 12 years and under the age of 16 years, and did handle her breasts over her clothing and handle her private parts, contrary to the Criminal Law (Consolidation)(Scotland) Act 1995, section 6.

[2] The Crown led evidence in support of that charge from the then 15 year old complainer, DC, her mother, TC, and from CK, who was then also aged 15. DC gave evidence to the effect that on the evening of 24 June 2003 she and her friend CK were together in a caravan in the garden of her mother's house at Musselburgh. The appellant, who was at the time her mother's boyfriend, was also in the caravan. The appellant had had a lot to drink and his behaviour in the course of the evening had been bizarre and annoying. It may be noted that that behaviour was the subject of three other charges on the indictment. The appellant was acquitted of two of these charges and was convicted of one charge of assault by slapping the complainer on the face.

[3] DC's evidence in respect of the charge of indecent assault was to the effect that she and CK went to bed at about 1 a.m. They shared the same bed in the bedroom area of the caravan. It appears that the appellant was in the living area of the caravan when the two girls went to bed and indicated that he did not intend to leave. The complainer's mother was in bed at her own house.

[4] The complainer spoke to having "a carry on" in the bedroom with CK, in the course of which they were screaming and squealing. She said that she and CK dozed off to sleep at about 3 a.m. The next thing she remembered was waking up and seeing the appellant's face "right in front" of her. She estimated that that was at about 5 a.m. The appellant was kneeling on the floor beside the bed and said to her "Let me in because it's cold." She allowed him to get into the bed. He then suggested to her that she touch CK and she did so. He then said "No, touch her in a different way." The complainer refused. The appellant then put his arm around her and said to her that he was cold. He started feeling her breasts and then began to squeeze her bottom really hard. She told him to leave her. He said that he knew that she liked it, and when she denied that, he mentioned that he had a knife down the side of the bed. She repeated her request that he leave her, and he then got up and went away.

[5] CK gave an account of being wakened up by DC who was shouting "Go away" and "Get off me". At that point she saw the appellant walking away from DC's side of the bed. She was asked if she had heard the appellant's voice and said she had not. She said that they were both scared as a result of what had happened.

[6] TC gave evidence that between about 12 midnight and 1 a.m. she heard DC screaming and thought that the girls were having "a girlie carry on". She fell asleep at around 1 a.m. and was awakened by a telephone call from D at about 4.30 a.m. She subsequently went to the caravan, where she found D scared and crying.

[7] The first ground of appeal was to the effect that the sheriff erred in repelling a submission that there was no case to answer in respect of this charge in that there was insufficient corroboration of the complainer's account of what the appellant did to her. Before us, Mr. Meehan for the appellant conceded that the remarks spoken to by DC, namely, "Go away" and "Get off me", overheard before she saw the appellant walking away from the complainer's side of the bed, were capable of being construed as part of the res gestae. That being the case, DC's evidence in this regard was sufficient to provide the necessary corroboration. We consider that that concession was properly made. The spontaneous exclamation by the complainer telling the appellant to desist - "Get off me" - could well be held to be part of the critical event and so to have special significance (Cinci v. H.M. Advocate 2004 S.C.C.R. 267 at para. 9). This ground of appeal is accordingly refused, and we need say no more about it.

[8] The second ground of appeal alleges that the sheriff misdirected the jury in directing them that they could look for corroboration of the complainer's account in evidence of the appellant's intoxication at the time and in the evidence that there was screaming or shouting by the complainer which was heard by her mother.

[9] In his report to this court the sheriff says that the remarks to which reference is made in the ground of appeal "are not jury directions at that point and the jury would be very clear about that."

[10] We do not agree with the sheriff on this matter. The relevant directions on the charge with which we are concerned are in the following terms:

"DC is the only person who speaks to the actual nature of the contact in that charge ... You are entitled to look at all of the surrounding circumstances which have been led in evidence in order to see if you find in these other pieces of evidence sufficient credible and reliable information to provide corroboration or confirmation of the evidence of DC ... So what are the other circumstances that you are entitled to look at in relation to finding confirmation of DC's evidence about what happened?"

The sheriff then refers to various aspects of the evidence to which we will return later. He then said:

"And so these are circumstances, and there may be others that I have not mentioned that you have noted as significant because the evidence is for you, these are circumstances that you can think about and if you think that they are significant you are entitled to look at all of these and, if you think it appropriate, to draw an inference from them and if you think that that inference is sufficient to corroborate the evidence of DC as to what happened, then you are entitled to come to a view that something indecent did occur."

[11] It is perfectly plain, in our view, that the sheriff was here directing the jury on the crucial issue of the possible sources of corroboration of the complainer's evidence available to them. In the light of the remarks to which reference has been made, the jury could not possibly have considered otherwise. The Advocate depute did not seek to persuade us to the contrary. We consider that the sheriff is plainly wrong when he asserts that the passage in question is not a part of the directions to the jury.

[12] The first matter to which the sheriff says the jury are entitled to have regard is the evidence of considerable intoxication on the part of the appellant at the time. He then goes on to make reference to various events that allegedly took place earlier in the evening, including remarks of a sexual nature that the appellant is alleged to have made about what the two girls were doing in bed. Evidence of an accused person's intoxication can never, of course, be a source of corroboration as to his commission of an offence. In fairness to the sheriff, we do not read this passage as intending to suggest that it could. The general thrust of the sheriff's remarks at this point seems to be to the effect that the appellant was in a sexually aroused state of mind through drink, that he made suggestive sexual remarks to the girls, and that it would therefore not be surprising if he proceeded to behave in a sexually inappropriate manner towards one of them. It seems to us that the sheriff has erred in this passage by confusing evidence that could bear only on credibility with that which was available as corroboration.

[13] Of greater significance, however, is the serious factual inaccuracy in the sheriff's reference to the screaming and shouting by the complainer. In that context, he said this:

"You have evidence that there was a screaming or shouting from DC which was heard by her mother and also heard and sufficient to awaken her friend who was sleeping beside her."

It is clear, however, from the transcripts of the evidence of both the complainer and her mother that their evidence was to the effect that any screaming or squealing by the complainer was at around 1 a.m. and was entirely separate from the incident complained of which did not occur until several hours later. The sheriff has conflated two entirely separate events. The suggestion that any screaming spoken to by the complainer's mother was the same screaming that awakened CK was accordingly quite unfounded in fact. The Advocate depute very frankly conceded that the sheriff was entirely mistaken in relation to the timing of the screaming heard by TC. He submitted however that, in the context of the charge read as a whole, what was said by the sheriff was not a misdirection which amounted to a miscarriage of justice. He founded in particular on the sheriff's earlier emphasis to the jury that they were the judges of the facts and that it was for them to make up their minds about the evidence.

[14] We are not able to agree with the Advocate depute on this matter. CK's evidence was crucial to the sufficiency of the case against the appellant and her credibility and reliability were accordingly important issues at the trial. We observe in this connection that the evidence given by CK as to what she heard the complainer say did not coincide with the complainer's own evidence about what she said to the appellant. Had the jury considered, as the sheriff suggested they should, that the screaming or shouting heard by TC was the same as was spoken to by CK, that could well have borne on their view as to CK's credibility and reliability. On no view of the evidence could it be said that what was spoken to by TC occurred contemporaneously with the alleged assault. When a trial judge describes evidence led at a trial it is important that he does so accurately and in a balanced manner if he is not to run the risk of misdirecting the jury. In our view the misdirection in this case was likely to be misleading to the jury in their consideration of a crucial aspect of the evidence, namely their assessment of the credibility and reliability of the evidence given by CK. We have concluded therefore that while this was a case in which there was a sufficiency of evidence, the material misdirection by the sheriff has led to a miscarriage of justice. We have accordingly quashed the appellant's conviction in respect of this charge.